7 history lessons that help explain tribes' pipeline protests

CANNON BALL, ND - There are a lot of terms tossed around at the Oceti Sakowin camp near the Standing Rock Reservation that the outside world might not be familiar with.

“Water is life,” — “Mni Wiconi” in Lakota — is the refrain from those opposed to the Dakota Access Pipeline, who call themselves “water protectors” in reference to their concerns about leaks into the Missouri River.

The safety of the water supply is the immediate issue at Standing Rock, but the discussions at camp go well beyond Dakota Access. There’s talk of treaties, discovery doctrines, environmental racism and centuries of unkept promises undergirding the pipeline fight.

Within the camps, the Treaty of 1851 is as common a piece of historical knowledge as the Civil War.

PIPELINE PROTESTS:Pipeline protesters target banks in Sioux Falls

Outside, however, the facts are less well-known.

Here are a few key historical points to help understand what has animated the tribes and their supporters.

The Doctrine of Discovery

This legal concept was used by European colonial powers to justify the taking of aboriginal land. Essentially, it gave land title to any Christian nation whose explorers set foot upon non-Christian soil. In 1823, the U.S. Supreme Court decision of Johnson vs. M’Intosh codified the doctrine into U.S. law, when Chief Justice John Marshall wrote an opinion stating that Native Americans could occupy land, but only the government could own it. Marshall, as it happens, stood to lose much of his own land if he’d ruled for the other side.

The Fort Laramie Treaty of 1851

This treaty with eight Native American nations drew boundaries in the Dakotas, Nebraska, Wyoming and Montana and offered safe passage to travelers on the Oregon Trail and the right of the U.S. to build roads and forts. The treaty has been ignored, but it was never rescinded.

This is the treaty referenced most often in coverage of the camp. Some of the land crossed by the Dakota Access Pipeline is within the 1851 boundaries for the Standing Rock, Cheyenne River and Yankton Sioux tribes, including the “treaty camp” from which protesters were forcefully ejected on Oct. 27.

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The Fort Laramie Treaty of 1868

This treaty created the “Great Sioux Reservation,” which included the entirety of South Dakota west of the Missouri River. Much of the 1851 treaty land was included as Indian hunting ground. The U.S. promised to keep white settlers out of the reservation, but that promise collapsed quickly after the discovery of gold in the Black Hills, considered scared by the Sioux.

Act of Feb. 28, 1877

In August of 1876, just after General George Custer’s defeat at the hands of the Great Sioux Nation, the U.S. Congress attached a “sell or starve” provision to the Indian Appropriations Act that tied food rations to surrender of the territory. Seven months later, this act was passed, removing the Black Hills from tribal control. Overturning the 1868 treaty technically required a vote of three-quarters of the Sioux males, but that didn’t happen. The government got just 48 signatures from the Standing Rock Nation.

Dawes Act and shrinking reservations, 1887-89

This move pushed individual land ownership into reservation communities. It offered U.S. citizenship to Native Americans who accepted individual tracts of land and agreed to “adopt the habits of civilized life” for 25 years. In 1889, just after North and South Dakota's admission to the Union, Congress acted to further shrink Native land holdings and created five smaller reservations. Homestead Acts further eroded their size into the 20th century.

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Pick-Sloan Plan of 1944

Massive flooding along the Missouri River inspired a plan to build a series of dams and reservoirs, including Lake Oahe. This required the taking and flooding of more than 200,000 acres of the tribes’ most fertile land, on which they hunted and from which they gathered the ingredients for traditional medicines.

The tribes were paid pennies on the dollar for the flooding. Standing Rock, which lost 56,000 acres of bottom lands, estimated the value at $23 million, according to lawyer and historian Peter Capossela's 2016 book "The Land Along the River." The Bureau of Indian Affairs appraised it at $1.3 million.

The land on which the main protest camp now sits and under which the Dakota Access Pipeline would be built belong to the U.S. by virtue of the Pick-Sloan plan. Standing Rock and Cheyenne River Sioux Tribes had lobbied for the return of land unneeded for the dams in the 1990s, but former Gov. Bill Janklow and former Sen. Tom Daschle negotiated a plan to transfer jurisdiction of some of it to the South Dakota Department of Game, Fish and Parks instead.

United States vs. Sioux Nation of Indians, 1980

This U.S. Supreme Court case sifted through the facts of the 1877 taking of the Black Hills. The Justices ruled that the Congressional action constituted a taking of property under the Fifth Amendment of the U.S. Constitution. The government was ordered to pay the tribes $17.5 million for the land, plus interest. The tribes have yet to accept payment, however. The money – more than $1 billion - remains in a trust with the Bureau of Indian Affairs.

Centuries of distrust

Marcella LeBeau, 97, of Eagle Butte, remembers life before Pick-Sloan. Her family was forced off their land to make way for the dams.

“We were paid, but we weren’t paid as much as the people across the river were paid,” LeBeau said. “… to this day, we’re still trying to get the compensation we deserve.”

The World War II nurse, of the Two Kettle Band of the Cheyenne River Sioux Tribe, has visited Oceti Sakowin five times in support the movement. The history of land losses is something LeBeau hopes the younger visitors learn through it.

“I look at it as a reawakening of our history from the past, beginning way back to the doctrine of discovery,” LeBeau said.

Pipeline supporters prefer to keep the conversation confined to the specific topic of Dakota Access itself.

Kelcy Warren, the CEO of Dakota Access operator Energy Transfer Partners, acknowledged last week during an interview with the Dallas Morning News that there are indigenous issues reaching farther back into history than his company's pipeline, but said it wouldn't be appropriate for him to weigh in on them.

As for the pipeline project, ETP has consistently said that Dakota Access took all the legal steps and more needed to consult with tribes near the pipeline route.

This week, Dakota Access filed a lawsuit asking a judge to allow it to proceed with drilling beneath the Missouri River without a formal easement from the U.S. Army Corps of Engineers, who approved the project over the summer.

John Hult is the Reader's Watchdog reporter for Argus Leader Media. Contact him with questions and concerns at 605-331-2301, 605-370-8617. You can tweet him @ArgusJHultor find him on Facebook at Facebook.com/ArgusReadersWatchdog