Credit PHOTOGRAPH BY ALYSSA SCHUKAR / THE NEW YORK TIMES / REDUX
Late Sunday afternoon, protesters at the Standing Rock Indian Reservation, in North Dakota, received unexpected and welcome news. Jo-Ellen Darcy, the U.S. Army’s assistant secretary for civil works, had announced that her department would not be approving the easement required for construction of the Dakota Access Pipeline to continue. The pipeline, which has been the cause of a months-long standoff involving the Standing Rock Sioux, their allies, the state government, and Energy Transfer Partners, Dakota Access’s parent company, was slated to carry crude oil beneath Lake Oahe, the reservation’s main source of drinking water. Instead, according to Darcy, the Army Corps of Engineers will now conduct a thorough environmental assessment and work with E.T.P. to “explore alternate routes for the pipeline crossing.” The decision came just in time: after weeks of confrontation between law enforcement and protesters, tensions had been expected to rise on Monday, when two thousand military veterans were to join the demonstrations, and when a mandatory evacuation order, issued by Governor Jack Dalrymple, was to take effect. When I spoke with Dave Archambault II, the tribe’s chairman, on Tuesday morning, the previous day’s revelry had given way to relief. “We told congressmen, senators, the company, everybody, that it infringes on our rights, but it seemed like no one heard us,” he said, referring to the pipeline. “I never believed the easement would be stopped.”
Yet the protesters’ celebrations have been tempered by concern over whether the decision will outlast President Obama’s tenure in office. Soon after the Army’s announcement, House Speaker Paul Ryan tweeted, “This is big-government decision-making at its worst. I look forward to putting this anti-energy presidency behind us.” Last month, Kelcy Warren, E.T.P.’s chief executive and a personal donor to Donald Trump’s Presidential campaign, told NBC News that he was “a hundred per cent sure that the pipeline will be approved by a Trump Administration,” and that “we will have a government in place that believes in energy infrastructure.” (E.T.P. declined to speak to me for this story.) Jan Hasselman, an attorney for the environmental-law nonprofit Earthjustice, which represents the Sioux, told me that the Army’s move “could be of limited durability in light of Trump’s unabashed embrace of fossil fuels.” Until recently, the President-elect also had a financial stake in the pipeline. Trump has not yet made any statements about the latest Dakota Access development—his transition team did not respond to my requests for comment—but last week a spokesman indicated Trump’s support for the original pipeline route, and specified that it “has nothing to do with his personal investments and everything to do with promoting policies that benefit all Americans.”
But who decides what policies benefit Native Americans? For the Standing Rock Sioux, that issue—not energy infrastructure but the flawed process of consultation between the tribe, the Army Corps of Engineers, and E.T.P. that caused the impasse in the first place—was at the crux of their protest. “Federal agencies and indigenous peoples think of consultation very differently,” James Grijalva, a professor at the University of North Dakota who specializes in American Indian law, told me. “The Corps thinks an e-mail asking for comment is consultation; Indians expect representatives with authority to make decisions to come to their home, sit down over food, talk family and history, and then have an honest conversation about issues central and peripheral to the proposal.” But, ultimately, only one party determines what level of discussion is satisfactory. “Consultation effectively means what the government wants it to mean,” Grijalva said.
In the case of the Dakota Access Pipeline, the process of consultation began two years ago, in September of 2014, when E.T.P. initiated a meeting with Standing Rock’s tribal council. In a recording of the gathering that the tribe posted on YouTube, Archambault can be heard telling Chuck Frey, the company’s vice-president of engineering, that the pipeline “is not something the tribe is supporting.” Other council members highlight some of their concerns—damage to heritage sites during construction, the possibility of water contamination in the event of rupture, the protection of local endangered species. Toward the end of the meeting, Archambault says, again clearly, “It’s really important that you communicate with Standing Rock.”
According to court records, the Army attempted to do so. It requested meetings, and sent letters inviting the tribe to provide input by certain deadlines. What followed seems to have been a case of miscommunication and disjointed agendas. While the Army Corps solicited comments about the pipeline’s proposed lake crossings, the tribe reiterated to the Corps that it was opposed to “any kind of oil pipeline construction through our ancestral land.” In late 2015 and early 2016, the tribe declined to participate in most of the site surveys, prompting the Corps to proceed with its own assessment using limited information. Though other federal agencies raised concerns about the thoroughness of the Army’s analysis, the Corps ultimately granted Dakota Access most of the permits it had requested.
When I asked Hasselman about the tribe members’ limited participation, he said that they weren’t “going to play along with what they considered to be a fundamentally flawed process.” The reason they didn’t boycott that process entirely, Archambault told me, was that the Corps needed to hear that they opposed the pipeline. “It’s important for tribes to have communication lines open, even though it falls on deaf ears,” Archambault said. But, he maintains, communication is not the same as consultation. “It’s not consultation if every time we meet and we say, ‘We don’t want the pipeline here,’ they don’t change their agenda,” he said. The main problem, he added, was that there was never a formal government-to-government consultation among senior-level personnel. He and Warren did not speak directly over the phone until last week.
E.T.P. followed protocol by working with the Army Corps, as did the Army Corps by reaching out to the tribe, Grijalva told me. Darcy’s announcement is significant because it suggests that the protocol itself may be insufficient—that the federal government may owe more to tribes than the letter of the law requires. The Obama Administration had suggested this idea once before during the Standing Rock clash. In September, immediately after a federal judge denied the tribe’s request to temporarily halt construction of the pipeline, the Departments of Justice, of the Army, and of the Interior released a joint statement that read, in part, “This case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.”
Whether that reform will take place under Trump is an open question. A recent Reuters report suggests that his Administration may take an entirely different tack, privatizing Native American lands in order to get around federal regulations that currently make drilling for oil and gas on reservations cumbersome. Still, there is an argument for better consultation that might appeal to a businessman such as Trump. If Dakota Access resumes its original route and a spill occurs, residents of Standing Rock will face a similar lack of access to clean water as residents of Flint, Michigan. Earlier this year, on the campaign trail, Trump called the Flint crisis a “horror show” and the fault of “incompetent politicians.” One study estimates that the long-term cost to the city will be nearly four hundred million dollars. As Grijalva noted, any reasonable federal agency would want to avoid repeating a situation like this, and better consultation could be the key. Archambault said that he will push for policy reform and attempt to open lines of communication with Trump. “I welcome discussions with him,” he said. “The incoming President wants to make this country great again. He can, but he can’t leave tribes behind.”