Build the Access Pipeline

In 2014, a group of tycoons sought to construct a pipeline that would spew thousands of gallons of oil per day into Standing Rock Sioux Tribe’s water supply, plunder their virgin lands and mutilate religious sites; or at least, that’s the idea. The only problem is that this version of the story is anchored in few facts and several misunderstandings.

Standing Rock Sioux Tribe has of yet no official health concerns, pending the US Army Corps’ actions, so I will not yet opine on this major element of the controversy; the scope of this opinion is the potential violations of the National Historic Preservation Act.

The relevant part of this legislation notes that any federal agency (The US Army Corps) undertaking such a project must grant any sovereign tribe “a reasonable opportunity to comment on the undertaking.” Once any disputed territory is assessed, the tribe must be given reasonable opportunity to “participate in the resolution of adverse effects,” and the onus is on the agency to mitigate as much harm as possible.

Indeed, copious efforts to assess and address potential issues such as destruction of historic lands were made by Dakota Access.

Dakota Access met with the tribe’s leaders to assess additional concerns countless times. The tribe never responded to mailed interrogatories, and on some occasions, simply failed to show up to meetings. Eventually the tribe objected that DAPL would affect cultural sites. In response, the US Army Corps invited the tribe to participate in a survey of the land so that Dakota Access could better avoid any sites of import, and the tribe declined participation.

Dakota Access followed the law: they assessed collateral damage, attempted to meet with the tribe to discover cultural sites and invited them to assist in mitigating harm. At every pivotal moment, Dakota Access and the Corps acted to protect the tribe’s rights. At each moment, the tribe demonstrated utter neglect towards the same sacred land they allege is being thoughtlessly eviscerated by outsiders.

The tribe is permitted to make claims of destruction of religious and cultural sites per the National Historic Preservation Act, and of course, religious freedom is among the most important freedoms any state must afford its citizens.

But at some point, religious freedom reaches its limit. Eventually, externalities are created, and others are implicated. All freedoms must be balanced against the competing rights and interests of other citizens. The tribe were granted sufficient time to object pursuant to the law and they were invited to participate in discussions from the conception of the project. They cannot, in any valid legal or moral sense, retroactively claim that their rights have been violated. To force Dakota Access to withdraw this late would violate Dakota Access’ rights, as they have acted courteously and within the bounds of the law for the project’s duration.

If Dakota Access were ordered to withdraw their pipeline, two precedents would be set. The first is that no burden lies on tribes to point out land of cultural significance until the company is on its doorstep — a dangerous precedent, as tribes are the only people who possess this knowledge; therefore, without any required proactive input, companies would be rendered unable to conduct business. The second precedent is that the law itself holds no weight.

If Dakota Access continues to build, the onus rests, as it should, on tribes to identify the locations of sacred sites.

If due process of law were being denied or if a court or administrative agency decided in favor of the oil industry at the cost of tribe rights, this op-ed would reflect a different opinion. In the case of DAPL, due process of law was afforded to all parties, and a just decision was rendered. Ultimately, the tribe’s flippant attitude towards their cultural sites is their own fault. To order Dakota Access to reroute their entire pipeline despite following the law and demonstrating utmost concern for the tribe is no longer the exercise of religious freedom, but the exploitation of it.

Grant Osborn is a College sophomore from Springfield, Ohio.

 

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