A Question of Cultural Heritage
Since July, members of the Standing Rock Sioux tribe and their supporters have been protesting the construction of the Dakota Access pipeline. Winding its way down from the Bakken oil field in North Dakota, the pipeline is slated to cross the Missouri River a half-mile upriver from the Standing Rock Sioux Reservation. While Energy Transfer Partners, the Texas oil company building the pipeline, maintains that they have legal right to complete the project, tribal leaders have said that not only would the pipeline pose a threat to their drinking water, its proposed path would also destroy sacred lands and burial grounds — locations of significant cultural heritage.
In fact, some of those lands may have already been destroyed. On September 2, the Standing Rock Sioux filed an affidavit affirming the existence of burial grounds and spiritual artifacts inside the pipeline corridor — land that Energy Transfer Partners, the Texas oil company building the pipeline, had purchased from private owners.
On September 3, pipeline workers razed a two mile-long swath of that land. Later that day, Tim Mentz, who for years acted as the Standing Rock Sioux Tribal Historic Preservation Officer, stood next to the scraped land and spoke to a camera. “Today, we’re looking at an area that has totally destroyed one part of our society’s walk of life where pledges were made.” he said.
Though members of the Standing Rock Sioux had not been allowed into the corridor, Mentz said that they had stood on the sidelines and counted 82 culturally significant features, including 27 graves, and a series of stone prayer formations. “They put their mark on the ground through stones,” Mentz explained, “They’re placed very specific to the contour of the land.”
In late September, state archaeologists concluded that no significant cultural sites had been disturbed by the construction. However, a lawyer for the Standing Rock Sioux said that tribal representatives were not allowed to be present while the government’s survey was conducted. In the past, the tribe’s Historic Preservation Officer has maintained that “only the tribes had the ability to identify sites of religious and cultural significance.”
Different understandings of cultural heritage is one of the issues at the heart of the protests against the Dakota Access pipeline.
“For indigenous people in the U.S., cultural heritage usually involves places in the natural landscape where they have come to experience or connect with the supernatural, with their creator in a way that often has provided key instructions or values to the people on how to live as Navajos or Lakota or Cherokees,” says Kristen Carpenter, a law professor at the University of Colorado, and a lawyer specializing in American Indian law. “Those values are really critical to their ability to survive as people. In my experience with the tribes I’ve worked with, it’s not a romanticism or an anachronism — they truly mean that to live as tribal people, they need to meet obligations to their ancestors and protect those elements of the landscape that have been entrusted to them.”
There are two federal laws that address Native American cultural sites: the National Historic Preservation Act (NHPA), which was expanded to include Native American cultural sites in 1992; and the Native American Graves and Protection and Repatriation Act (NAGPRA), which specifically applies to burial sites.
In the case of the Dakota Access pipeline, neither law offers adequate protection.
NAGPRA only protects graves found on federal or tribal land; since the graves Tim Mentz was referring to were discovered on private land, it doesn’t apply.
NHPA, which requires that agencies consult with tribes before undertaking a project that could adversely affect traditional cultural properties, didn’t provide much more help; the consultation required is minimal, and in the case of Dakota Access, courts ruled that federal agencies had done enough to fulfill their duty.
Appeals to domestic laws having proved futile, tribal leaders have been making their case to the international community. In September, tribal chairman Dave Archambault II addressed the U.N. in Geneva, calling on the Human Rights Council and member states to “condemn the destruction of our sacred places and to support our Nation’s efforts to ensure that our sovereign rights are respected.”
There are several international stipulations that would seem to protect the sacred Sioux lands inside the pipeline corridor, including the the UNESCO Declaration on Cultural Heritage protection and the UN Declaration of the Rights of Indigenous People. The latter, Carpenter notes, was written with the help of indigenous people themselves and “provides for a lot of the recognition of indigenous peoples’ rights to land and religion, and to provide consent in situations like this — the very elements that are missing from federal Indian law, at least from an advocate’s perspective.”
While instruments of international law are not always fully binding in the U.S., they set forth norms and expectations that the world community is expected to abide by. Carpenter references the Hague Convention of 1954, which provides for the protection of cultural heritage during armed conflict: “The idea is that cultural heritage belongs to all of humanity and it’s not an appropriate target, even in wartime,” she says. The UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage of 2003 extends similar protections during peacetime.
In support of a preliminary injunction the tribe filed in August, Tribal Historic Preservation Officer Jon Eagle Sr. wrote:
“As a veteran of the United States Army, it had long been a wish of mine to visit Arlington National Cemetery. In 1998, my wish came true. One of first things I noticed while entering this hallowed ground were the hushed tones of the people as they walked through the cemetery. I knew it was because here lay the men and women who fell in defense of this nation. It is with this same reverence that we, the descendants of the Oceti Sakonwin enter the sites where our ancestors fell in defense of our country…
“To me, and to members of the Tribe, destruction of or disrespect to these sites feels just like it would feel to me if a pipeline was dug through the middle of Arlington National Cemetery, turning over gravestones and displacing graves. Mainstream society would not tolerate the desecration of Arlington National Cemetery. But this is what DAPL is doing in the traditional lands of the Oceti Sankowin.”
On November 14, the Army Corps of Engineers called for more study and input from the Standing Rock Sioux before deciding whether to approve an easement for the pipeline to cross under the reservoir upstream from the reservation. Energy Transfer Partners has asked a U.S. district judge to declare it has the legal right to continue. As it stands now, nearly 90 percent of the pipeline has been completed.
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