The Connection Between Environmental Damage and Harm Towards Native American Communities
By Carson Smith
In the summer and fall of 2016, the gaze of the international community turned to Native American protests against the Dakota Access Pipeline (DAPL). People from indigenous communities around the world gathered in Standing Rock, North Dakota, braving the front lines of the protest, facing rubber bullets, pepper spray, water cannons and guard dogs; however, while this physical abuse was inflicted from day to day on individuals, the land and the Standing Rock Tribe were also being victimized. Though the politically-dominant Western worldview treats land as property, abstractable and exploitable, the worldviews of many indigenous communities regard the land as a living being with its own rights. To bore underneath Lake Oahe and risk its contamination harmed disputed territorial lands of the Standing Rock community while devaluing the cultural principles of the Lakota. The destruction of this sacred geography, historically belonging to the Lakota tribal communities, occurred when legal regulations and treaty law were ignored thereby disregarding the cultural impact of such environmental destruction. While this specific instance became internationally infamous and received ample press coverage, it was simply the most recent in a long history of environmental injustices against Native American populations, which has itself helped characterize the experience of colonization.
As the DAPL illustrated on the world stage, the abuse of Native American people and the abuse of the environment through unsustainable and even dangerous development practices are often one in the same. While the impact of development practices on nature is often discussed, the ramifications that these applications have on those who are so thoroughly tied to the land that they are ‘indigenous’ to it are often ignored. As the histories, culture, and resources of indigenous populations have been linked to these places since time immemorial, the environment and its original inhabitants cannot be separated. Even after periods of removal, such as the Trail of Tears, indigenous communities retain connection to their original homelands. As a Choctaw woman, despite the relocation of my community to Oklahoma in the 1830s, my traditional lands around what is currently referred to as Mississippi continue to hold significance. Oral tradition tells us that these lands are home to the mound from which our ancestors were birthed and the waters where we collected the shells to make our regalia. Despite my tribe’s relocation, the cultural significance of these places has stayed with us. While legal doctrine, most notably the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), treaty law, and other federal regulations in the United States, seek to recognize this connection, in practice the United States government has consistently ignored such principles. If these principles were respected, the major environmental abuses created by massive construction projects would be deemed unacceptable.
As construction on the DAPL began in 2016, the Standing Rock Tribe called for the United States Army Corps of Engineers (USACE) to review the pipeline’s crossing of the Missouri River at Lake Oahe, which acts as the main water supply of the tribe. USACE ruled in a ‘truncated environmental review’ that “the project would have no detrimental environmental impact,” and that the pipeline project could therefore proceed. In a subsequent series of lawsuits, the Standing Rock Tribe argued that USACE had made its decisions and approvals hastily, without first properly consulting the tribe as required by law in the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA); the Tribe likewise maintained that the pipeline would impose severe environmental and cultural damage on their community.
Without proper consultation the full cultural and historical context surrounding this land could not be shared. Although the land being built upon was not considered to be tribal territory by the US government, those of the Standing Rock Tribe knew this space to be within their traditional boundaries. Because their territory originally expanded far beyond their current reservation, much of the land around the reservation is also regarded as sacred by the Standing Rock community. The land through which DAPL crossed was often used for burials, and for ceremonies critical to the continuation of the tribal community. To build through such symbolic lands not only threatened the morale of the tribe but additionally the customs, traditions, and beliefs that tie together an entire tribal community and history.
This concern for the safety of cultural sites was coupled by a fear of the environmental and health risks posed by the pipeline. While many during the DAPL protests cited potential oil spills as the critical ecological threat, even the mere existence of the pipeline inflicted environmental damage. The operation of the pipeline would create toxic air pollutants inevitably resulting in decreased air quality in the areas of pipeline construction. Lowered air quality could exacerbate health conditions, such as asthma, and make breathing and even exercise more difficult in the short-term; the long-term effects include lung disease and a shortened life-span. For a people who are so interconnected with the land, this threat to health would reduce one’s ability to participate in critical cultural practices such as hunting and ceremony.
Moreover, if the DAPL were to actually leak near the Missouri River, it could lead to massive damage to the environment and human health. In a spill, a whole body of water and surrounding soil could be polluted, killing both vegetation and wildlife, and poisoning the water source of the tribal population. A spill’s impact on wildlife would diminish the tribe’s guaranteed hunting rights, which were promised via 1868 Treaty by the United States government. Many tribal communities are food deserts, and the continued practice of sustainable hunting creates healthier and more nutritious diets for the Standing Rock community. The contamination of the land and water would make this practice nearly impossible, thereby threatening the physical and cultural well-being of the indigenous community. Furthermore, the 1868 Treaty made between the Lakota Nation and the federal government recognizes these as rights of the Standing Rock people. In allowing for a pipeline which threatens the health of the water, land, and people, the United States government is reneging without consequence on a legally-binding promise it made to indigenous peoples.
From decreasing water and air quality to restricting means of sustenance, the DAPL project simultaneously endangers both the environment and people of North Dakota. Because their histories, cultures, and resources are so heavily tied to the land, indigenous populations find themselves in danger whenever local lands are being abused. Both federal legislation/ regulations and international doctrine, have sought to recognize this reality despite ultimately failing in the case of the DAPL.
The symbiotic relationship between indigenous populations and the environment has become a worldwide topic of conversation and is now protected by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP guarantees indigenous populations the rights to originally held territories and advocates for these peoples to freely practice their spiritual or religious traditions on those lands. UNDRIP sought to push back against the consistent marginalization of indigenous voices in conversations over the environment. It sought to protect Native peoples’ homes when national construction projects infringed on their territories. It sought to minimize the pollution which would find its way into indigenous lands and water, thereby damaging the health and cultural practices of these communities.
The case of the DAPL project clearly breaks with UNDRIP by violating the indigenous right to homeland and removing Native American voices from the consultation process over land use; however, this should hardly be a surprise as the United States was one of the last countries to recognize UNDRIP. Only in 2010 did President Obama make a public statement in support of the resolution. This decision led to the integration of new federal regulations, many of which focus on the need for tribal consultation. These policies built upon previous United States mandates for the consultation of tribes in projects that impacted their communities. Specifically, NHPA and NEPA call for tribal consultation in development projects which impact the tribes in “ historic, cultural, and natural resources.” When USACE failed to provide adequate consultation for the Standing Rock tribe, they also disregarded the United States’ response to the implementation of UNDRIP, NHPA and NEPA .
Nevertheless, even before UNDRIP was presented to the UN in 2007, the US government had signed over 500 treaties with multiple Native American nations around the country, many of which recognize indigenous rights to land and resources. As aforementioned, the 1868 Treaty with the Lakota Nation is one such example. While these treaties continue to legally bind the federal government, in practice the US does not give weight to these documents. In fact, no treaty made by the US government to Native American people has even been completely upheld. While treaties were originally developed as nation-to-nation documents, where tribal societies were viewed as their own sovereign bodies, over time the United States began to retract its promises without renegotiating with the tribes. The connection between indigenous people and their land has repeatedly been established and recorded in the law, but the concrete needs of those people for their lands continue to be ignored. If such legal principles were actually respected, the construction of the DAPL would have been unacceptable as it risked harming the people and land.
In 1982, well before the creation of UNDRIP, the U.S. Forest Service began designing a logging road in California to travel through the heart of the Six Rivers National Forest. This land was a ceremonial and spiritual hub for multiple tribes in the area, including the Yurok, Karuk, and Tolowa. The Forest Service concluded in a report that the development of such a road along with the harvesting of lumber from that area would severely inhibit the spiritual practices of these peoples, but nevertheless planned to continue with construction despite its own report. In seeking to justify that decision, the Forest Service argued that, “…alternative routes … were rejected because they would have required the acquisition of private land, had serious soil stability problems, and would in any event have traversed areas having ritualistic value to American Indians.” In response, tribal communities of the area took legal action. The case came to a head before the Supreme Court in Lyng vs. Northwest Indian Protective Cemetery Association.
Historically, neither these lands nor cultural practices were protected by treaty; however, the Yurok, Karuk, and Tolowa sought protection under the First Amendment of the United States Constitution, specifically the freedom of religion. These tribes argued that without the preservation of the Six Rivers National Forest, they could not continue to properly practice their spirituality. Such arguments were bolstered by the American Indian Religious Freedom Act of 1978 (AIRFA), which both recognized and sought to protect Native American spirituality and its dependence upon the land. However, the Supreme Court decided the construction of such a road was not a violation of religious freedom.
In her majority opinion, Justice Sandra Day O’Connor argued that the First Amendment only called for religious groups to be free of penalization for practicing their religion and to be free from forceful violation of their religious beliefs; therefore, the impacted tribes could not make a claim of religious discrimination. Although road construction would prohibit the tribes from practicing at spiritual sites, the court decided that the road itself did not force the tribes to violate their religion. In this way, O’Connor’s understanding of the First Amendment protected religious beliefs but not religious practice; she believed she had protected the tribes’ rights to their ideology, while admittedly not safeguarding their ability to put that ideology into practice.
In his dissent, Justice William Brennan challenged this point by explaining in detail how the indigenous people of the area would indeed be forced to violate their religious beliefs without the means to conduct religious practices on their lands. He writes, “ …tribal religions regard creation as an ongoing process in which they are morally and religiously obligated to participate. Native Americans fulfill this duty through ceremonies and rituals designed to preserve and stabilize the earth…” In this way, Brennan argued that indigenous religious beliefs could be violated by not continuing ones religious practices thereby severing their spiritual connection with the land. For indigenous communities, religious beliefs and practices were one in the same.
The ruling in Lyng threatened the environment through deforestation and in doing so threatened these tribes’ spirituality. Because spirituality is so often connected to the land for indigenous populations, Brennan explained, construction on and destruction of such lands directly inhibits tribal spiritual practices and beliefs. The result in Lyng demonstrated a broader lack of understanding regarding indigenous spiritual beliefs. The most prominent religions in the United States are often set in a specific, readable doctrine and use manmade locations to practice their faith. However, indigenous spirituality often finds itself tethered to historical lands and environments rather than texts or community buildings, such as mosques, synagogues and churches, which have the capacity to be reprinted, relocated, or rebuilt. These religions often promote the practice of belief independent of the specific place of practice, unlike tribal spiritualities. The destruction of the environment can thus directly sever the spiritual principles of indigenous populations by divorcing practice from belief and then constraining that practice.
The American Indian Religious Freedom Act (AIRFA), cited by Brennan, highlights this critical importance of both religious belief and practice. AIRFA states: “[t]hat henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.”
AIRFA should have beautifully complimented the First Amendment by acting as a bridge between the United States government and tribal communities. While Brennan utilized it to form his opinion, O’Connor disregarded the fluid connection made between the “belief, express[ion], and exercise,” of indigenous spirituality. While the interpretation of the First Amendment by the majority of the court understood a distinct separation between belief and practice reinforced by prominent religious ideologies, Native spirituality is inextricably tied to environment. Native beliefs cannot exist without the ability to visit and care for the land. In including “access to sites,” AIRFA highlights the critical relationship between land and indigenous spirituality.
We are left again with a dismal reality. While legal measures exist to both recognize and protect the connection between indigenous populations and land, these mechanisms are consistently sidelined, as illustrated by the cases of DAPL and Lyng. In moving forward, legislators and judges must recognize the importance of legally protecting this connection between indigenous populations and land. Adhering to such documents would produce more critical thinking about the environment, and proper consultation with indigenous communities would add new and diverse perspectives to the development process. Instead, the lack of regard for indigenous voices, beliefs, and culture sends us towards a future of deforestation, water pollution, and the continued exploitation of Native American communities.
Carson Smith was born and raised in Chicago and is a tribal citizen of the Choctaw Nation of Oklahoma. She is a fourth-year student at Stanford University, where she studies Political Science, Native American Studies and will receive honors in Democracy, Development and the Rule of Law. Carson acts as a co-chair for the Stanford American Indian Organization and a Social Justice Fellow at the Native American Cultural Center at Stanford. Additionally, she also sits on the Advisory Committee for the Native American Rights Fund's Indigenous Peacemaking Initiative. Carson hopes to one day work as a law professional focused on Indigenous Human Rights, Criminal Justice, or Federal Indian Law. Through her work, she strives to bring more attention to the United Nations Declaration on the Rights of Indigenous Peoples as a mechanism for protecting the sovereignty of these communities.
Illustration by Eva Louise Grant, St’at’imc First Nation
Eva Louise is an Indigenous artist and writer temporarily calling Ohlone territory her home. She is a senior at Stanford University, where she studies literature and languages. She is a former fellow at the Institute for Diversity in the Arts, and plans to pursue a PhD at the intersection of creative and critical pursuits.
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