The tribes have not relinquished their claims on the land, and the federal government continues to hold compensatory funds in an account that now exceeds $1 billion. In light of concerns over the pipeline route through what they consider illegally seized territory, and because of concerns about environmental impacts on their territorial waters, the Standing Rock Sioux called for a full environmental impact study of the pipeline route under the terms of the National Historic Preservation Act, and the National Environmental Policy Act. Federal guidance related to both of these laws recommends environmental studies and tribal consultations any time a tribe stands to be affected by activity requiring a federal permit. The guidance applies whether or not a tribe technically "owns" the land where the activity takes place.
In December 2016, the Department of Interior declared in a memorandum that the Army Corps of Engineers failed to consider tribes' statutory and treaty rights when it allowed the developer to re-route the pipeline from its original path near Bismarck, ND. The DOI memo emphasized that the same motivation for re-routing the pipeline away from Bismarck - potential harm to the city's water supply should the pipeline leak - was dismissed for the alternate route near the Standing Rock Sioux reservation, because technology would be used to prevent or minimize leaks. DOI solicitor, Hilary Tompkins put it this way:
"A pipeline spill would thus pose the same risk to tribal water ... that the Corps found to be impermissible for Bismarck water, and yet the threat to tribal water was considered mitigated by the same pipeline technology that the Corps found would not protect Bismarck residents."
In other words, what the Corps and the pipeline developers deemed too risky for Bismarck's residents was viewed as acceptable for the Standing Rock Sioux Tribe. This example of unfair dealing runs counter to a core tenet of environmental justice: that everyone deserves equal protection from environmental hazards.
Around the same time that the DOI memo was released, President Obama and the Corps sided with the Standing Rock Sioux Tribe and agreed to conduct an impact study in consultation with the tribe. As the next President took office in January 2017, one of his first actions was to scrap the planned study, instructing the Corps to "review and approve in an expedited manner" remaining easements for the Dakota Access Pipeline. A piece in The Atlantic covers the new President's directive to the Corps. The President's directive ignores the DOI solicitor's conclusions; in fact, the DOI memo was recently revoked and no longer serves as policy guidance in the new administration.
In addition to raising issues surrounding environmental justice, the Dakota Access Pipeline highlights the importance of tribal consultation or, in this case, lack of tribal consultation. The United Nations' Special Rapporteur on the rights of indigenous peoples recently visited the US to document issues surrounding energy development, tribes, and consultation. The initial report highlights deficiencies in federal policy surrounding tribal consultation and suggests that the Dakota Access Pipeline dispute is only one example of a larger structural problem related to federal policy. In particular, Rapporteur Victoria Tauli-Corpuz notes:
"The goal of tribal consultation is not simply to check a box, or to merely give tribes a chance to be heard. Rather, the core objective is to provide federal decision makers with context, information, and perspectives needed to support informed decisions that actually protect tribal interests. Treaty rights, the federal trust responsibility to tribes, environmental justice, and the principles enshrined in the Declaration all must be given life and meaning in federal decisions that impact tribes."
The UN report and guidance from the US government emphasize that tribal consultation is fundamentally different from gathering public input, engaging stakeholders, or receiving comments. Tribes and tribal citizens are free to pursue these channels, but the unique situation of indigenous peoples - among other things they are the original owners of the present-day territory of the US - obliges the federal government to pursue meaningful consultation as well. The UN Declaration on the Rights of Indigenous Peoples pushes this idea further and states that nations shall obtain indigenous peoples' "free, prior, and informed consent" before undertaking activities that affect them. The Rapporteur noted a large gap between this ideal and the current practice of tribal consultation in the US. Given the number and scope of projects across the United States and their associated environmental impacts, I hope that tribes will hold federal agencies to high standards for consultation. Our present-day and ancestral lands are at stake, as well as our histories and cultures. As Rapporteur Tauli-Corpuz observed, box-checking is unacceptable when it comes to environmental justice and tribal consultation.