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The Movement Against the Dakota Access Pipeline: Where do we go from here?

By John Petoskey*

On December 4th, 2016, the Army Corps of Engineers—acting under the Obama Administration—announced that it would not be granting the easement for Dakota Access LLC to build a pipeline under Lake Oahe in North Dakota.[1] The corps instead changed course and moved to prepare an Environmental Impact Statement and explore alternate routes.[2] An EIS is “is a document prepared to describe the effects for proposed activities on the environment. “Environment,” in this case, is defined as the natural and physical environment and “the relationship of people with that environment.”[3] An EIS assesses the impact of an infrastructure project like a pipeline on the land, water, air, structures, living organisms, and environmental values at the site, the social, cultural, and economic aspects.[4] This was celebrated as a victory for the tribe and for environmentalists, with Standing Rock Sioux chairman David Archambault reacting to the news with the statement “The Standing Rock Sioux tribe and all of Indian Country will be forever grateful to the Obama administration for this historic decision.”[5]

Unfortunately for the tribe, and for all those who oppose the pipeline, November brought change in Washington with the election of Donald Trump. During the campaign, he voiced support for “the Keystone pipeline and so many other things to move forwards” stating that “it would lead to tremendous numbers of jobs and good for our country.”[6] Trump made good on his promise to move forward with “so many other things” when he issued a memorandum ordering the secretary of the Army to expedite the approval of the Dakota Access Pipeline in January.[7] On February 7th the Army Corps sent a letter to Congress notifying them that they would issue the easement for the pipeline to cross under Lake Oahe, effectively reversing the Obama administration’s decision on December 4th.[8] Jan Hasselman, the lead attorney for the tribe in reaction to this reversal stated “The Obama administration correctly found that the Tribe’s treaty rights needed to be acknowledged and protected, and that the easement should not be granted without further review and consideration of alternative crossing locations,”[9]

The tribe immediately filed suit and a motion for summary judgement asking the court to resolve issues that have not been adjudicated in previous cases, such as whether the National Environmental Policy Act requirements have been met and whether the granting of the easement in an expedited manner violated tribal treaty rights under the Treaty of Fort Laramie. [10] Hasselman explained the legal argument as follows: “In this arbitrary and capricious reversal of course, the Trump Administration is circumventing the law: wholly disregarding the treaty rights of the Standing Rock Sioux and ignoring the legally required environmental review. It isn’t the 1800s anymore—the U.S. government must keep its promises to the Standing Rock Sioux and reject rather than embrace dangerous projects that undercut Treaties…”[11]

The Standing Rock Sioux Tribe along with Cheyenne River Sioux Tribe also argued that the approval violation would violate their rights under the Religious Freedom Restoration Act and moved to enjoin the granting of the easement until the EIS can be completed.[12] The tribe’s brief asserts that “The Lakota people believe that the mere existence of a crude oil pipeline under the waters of Lake Oahe will desecrate those waters and render them unsuitable for use in their religious sacraments.”[13] The tribe argues that the pipeline correlates with an ancient Sioux prophecy which tells of the coming of “the black snake”[14] The tribe argues that the very presence of the pipeline beneath Lake Oahe will render their religious practices impossible and violate their constitutional freedoms. [15]

On the ground at Standing Rock, the state of North Dakota and Morton County have been evicting opponents of the pipeline from the protest camps.[16] Many of the protestors had left the camps before the evictions began, but about 100 remained at the camps once the eviction deadline came.[17] Videos broadcasted over facebook live show heavily armed police moving in and arresting all who remain.[18] One elderly woman, known to many as “Grandma Regina” of the Pine Ridge Reservation was one of the 47 people arrested at the Oceti Sakowin camp in February.[19] Well into her 80s, Regina Brave is no stranger to protest. She was one of the many protestors who occupied wounded knee in 1973 with the American Indian Movement.[20] She and her people have lived on the plains since time immemorial. Her life and activism is testament to a tradition of fierce resistance among the Sioux people that stretches from the Battle of Greasy Grass to the present day. A photo from 1973 circulated on social media of Grandma Regina clenching a rifle at the American Indian Movement’s occupation of Wounded Knee in 1973 juxtaposed against a photo of her arrest this month resoundingly communicates that the Sioux have never gone down without a fight; and they aren’t going to start now.[21]

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

*John Petoskey is a Junior Editor on MJEAL. He can be reached at

[1] Updates and Frequently Asked Questions: The Standing Tock Sioux Tribe’s Litigation on the Dakota Access Pipeline, EarthJustice (Mar. 10, 2017),

[2] Id.

[3] What is an Environmental Impact Statement (EIS)?, Management Information Network,

[4] Id.

[5] Hilary Beaumont, Obama Administration Stops Dakota Access Pipeline in Historic Decision, Vice (Dec. 4, 2017),

[6] Todd Davis, Financial Interest Between Donald Trump and Dakota Access Pipeline Goes Both Ways, Dallas News (Oct. 26, 2016),

[7] Robinson Meyer, Trump’s Dakota Access Pipeline Memo: What we Know Right Now, The Atlantic (Jan. 24, 2017, 2:45 PM),

[8] Feb. 7, 2017 Update: EIS Termination, EarthJustice (Feb. 7, 2017),

[9] Updates and Frequently Asked Questions: The Standing Tock Sioux Tribe’s Litigation on the Dakota Access Pipeline, EarthJustice (Mar. 10, 2017),

[10]Pl. Standing Rock Sioux Tribe’s Mem. in Supp. of its Mot. Partial Summ. J., ¶ 2, Feb. 14, 2017.

[11] Id.

[12] Pl. Cheyenne River Sioux Tribe’s Mot. for Prelim. Inj., ¶ 12, Feb. 9 2017.

[13] Id.

[14] Id.

[15] Id.

[16] Wes Enzina, Police Are Evicting Standing Rock Protestors. Watch the Heartbreaking Live Footage, Mother Jones (Feb. 22, 2017, 9:19 PM),

[17] Id.

[18] Id.

[19] Levi Rickert, Grandma Regina Among 47 Arrested at Oceti Sakowin Camp at Standing Rock, Native News Online (Feb. 24, 2017),

[20]We Shall Remain: Wounded Knee, Public Broadcasting Service (PBS), 15 (2009),

[21] Regina Brave, a survivor of Wounded Knee II in 1973, was released yesterday after being arrested for her actions standing up for treaty rights as police raided Oceti Sakowin, Native News (Feb. 24, 2017)

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