Oceti Sakowin (Sioux Nation) patriots and allies are understandably cautious about a September 9th joint statement from the DOJ, Army and Interior Departments saying the Army Corp would not approve building Dakota Access near Lake Oahe. Worldwide press coverage gained support pressuring the Obama administration, to their credit, to take action. The statement has no legal force, and asks that oil workers voluntarily halt construction. In some ways, this is positive. But the Sioux Nation has good reason to be cautious. The statement's language, once deciphered, is not favorable.

Demand consent, not consultation

The statement suggests meaningful consultation on infrastructure projects.

Meaningful consultation is meaningless. It means the US government will pretend to listen to the interests of indigenous nations, and proceed anyway once the political climate allows. The Oceti Sakowin (Sioux Nation) should demand the United States give free, prior, and informed consent on infrastructure projects as required by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The US is a signatory to the UNDRIP as of December 2010. Free, prior and informed consent is the law, not meaningful consultation. Consultation has no legal force, consent means the US cannot act without the consent of the Sioux Nation. The statement also forces the Sioux Nation to accept the stacked deck of US domestic law.

Demand treaties, not statutes

The statement says the Sioux Nation must work within the existing statutory framework.

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This is to prevent the Sioux Nation from demanding its treaty rights, or its rights as an indigenous people under international law. In October 1972 in Minneapolis, Minnesota American Indian Movement activists delivered the “20-Point Position Paper” as part of a nationwide march to Washington, D.C. called the Trail of Broken Treaties. Points 1 to 8 demand the recognition of existing treaties, and the restoration of constitutional treaty-making authority. This is important because the DOJ statement calls for a government-to-government relationship with indigenous nations. Government-to-government is nonsense. A city council has a government-to-government relationship with the state government. Government-to-government does not imply the international legal right of self-determination. Indigenous nations have a nation-to-nation relationship with the United States on the basis of treaties.

Tragically, so many of our people miss this point and use the US government's term government-to-government, not realizing its true purpose is to deny indigenous sovereignty.

In the 19th Century, the US Congress ended the treaty making relationships with indigenous nations by legislative fiat. Few have challenged the constitutionality of this legislation since the 20-Points Position Paper was delivered in 1972. It is in the best interests of the Sioux Nation to demand that the United States honor its treaties, and deal with the Sioux Nation by treaty, not the existing statutory framework. The DOJ statement also calls for developing a path that serves the broadest public interest.

This really means that if the interests of indigenous nations conflict with powerful corporate interests, the corporate interests will prevail. Why? Money, that's why. The government's claim that an oil pipeline serves the public interest is false. An oil pipeline is not a public utility like a highway or telecommunications lines. It does not qualify for a public use within the meaning of the Fifth Amendment takings clause of the US Constitution. Every private property owner in the path of the pipeline should challenge the government's unconstitutional condemnation of their property. The Sioux Nation cannot because of the racist existing statutory framework, and what 19th Century Supreme Court Justice John Marshall called the courts of the conqueror, do not presently recognize indigenous title to real property. The Sioux Nation must demand its treaty rights.