The Indian tribes protesting the Dakota Access Pipeline (DAPL) took the Standing Rock movement to the Inter-American Commission on Human Rights (IACHR) on Friday, 2 December 2016. The Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and Yankton Sioux Tribe, with Earthjustice and the American Indian Law Clinic – UC Boulder, submitted a Request for Precautionary Measures Pursuant to Article 25 of the IACHR Rules of Procedure Concerning Serious and Urgent Risks of Irreparable Harm Arising Out of Construction of the Dakota Access Pipeline to the IACHR. (Petition links at Stand with Standing Rock website)

The Commission has the authority to,

on its own initiative or at the request of a party, request that a State adopt precautionary measures. Such measures, whether related to a petition or not, shall concern serious and urgent situations presenting a risk of irreparable harm to persons …

The United States is a member of the Inter-American Commission on Human Rights.

The petition makes three central claims:

• the U.S. Army Corps of Engineers should not grant an easement across federal lands;
• the United States failed to adequately consult and to prepare an adequate assessment of environmental and social impacts of the pipeline, required under both U.S. and international law; and
• the United States has failed to protect peaceful protestors.

It argues that

In light of the Corps’ failure to consult with the Tribes, granting the final easement without meaningful consultation with the Tribes would violate the Tribes’ right to be consulted, which is derived from their rights to property, to participate in government, and to a healthy environment.

The petition specifically requests:

… that this Commission call on the Government of the United States to protect the rights of the Tribes by taking the following actions immediately:

1. Deny the easement allowing construction of the pipeline under the Missouri River at Lake Oahe as soon as possible;

2. Complete a full environmental impact statement in formal consultation with the Tribes;

3. Establish clear rules requiring that indigenous peoples who may be affected by government decisions have the opportunity for full and meaningful prior informed consent within the meanings established in the UN Declaration on the Rights of Indigenous Peoples and the jurisprudence of the Inter-American Court and this Commission;

4. Establish clear rules ensuring full environmental and social assessment of activities that may affect indigenous peoples, with the full participation of the affected indigenous peoples;

5. Immediately take all actions necessary to guarantee the safety of those engaging in peaceful prayer and protest concerning DAPL, and to ensure the full enjoyment of their rights to expression and assembly;

6. Any other action this Commission deems appropriate.

The tribes’ claims relate both to historical circumstances of wrongful unilateral treaty abrogation by the United States and to participation and protection rights under international and U.S. law. Two treaties were agreed between the Great Sioux Nation, Oceti Šakowiŋ, and the United States in 1851 and 1868. The original reserved lands were located in North Dakota, South Dakota, Wyoming, Montana and Nebraska. After the treaties were abrogated by the United States, 9 smaller reservations remain, located in North Dakota and South Dakota, including those of the three petitioners. Claims are based on reserved rights that are still effective under the treaties, the special trust relationship between the United States and the Tribes that is recognized in U.S. law, the U.S. National Environmental Policy Act (NEPA), the National Historic Preservation Act, and consultations with tribes required under the Clean Water Act and the Rivers and Harbors Act.

The pipeline route passes across the Northern portion of the original Sioux land, and at the edge of the modern Standing Rock Sioux reservation and the Mandan Hidatsa and Arikara Nation reservation. It is mostly sited on private land. The DAPL is intended to carry crude oil from North Dakota’s Bakken region, a highly prolific source due to horizontal drilling and hydraulic fracturing techniques, to southern Illinois. The Missouri River passes through six of the nine modern reservations and is crossed by the pipeline. Hence the adoption of the name “water protectors” by the pipeline protestors.

The petition provides a striking account of the cultural, spiritual and survival value of water to the Tribes, particularly the rivers and lakes associated with the Tribes’ heritage. It describes numerous inadequacies in the public participation process, in assessment of cultural resources, and in assessment to threats to drinking water and other environmental resources. The Inter-American System’s recent work on indigenous rights, rights to water, and conflicts over extraction of natural resources will be highly relevant.

Documents of interest include:

Decision of the D.C. District Court in Standing Rock Sioux v U.S. Army Corps of Engineers denying an injunction

Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers

IAHCR report on Indigenous peoples, Afro-descendent communities, and natural resources: Human rights protection in the context of extraction, exploitation, and development activities

IACHR Access to Water in the Americas: An Introduction to the Human Right to Water in the Inter-American System.

Two Updates:

International – There will be a hearing at the IACHR in Washington, DC on Dec. 9, , 10:15 to 11:15 a.m., on the Human Rights Situation of Indigenous Persons in the Context of Projects and Extractive Industries in the United States, at the Padilha Vidal Room (TL Level), GSB Building of the Organization of American States, 1889 F Street, N.W., Washington, D.C. 20006.

U.S. – On Sunday, December 4, 2016, the U.S. Army Corps of Engineers (ACOE) effectively put the project on hold. It decided not to grant an easement for portions of the DAPL sited on federal land on the current record, noting concerns over environmental justice, withheld information (including risk analysis), the history of dispossession of the Great Sioux Nation, the U.S. Mineral Leasing Act’s direction “to protect the environment, those who rely on fish and wildlife in the area for subsistence, and the public,” and the particular attention to be given to environmental effects of a project on Tribal resources. The ACOE will prepare and Environmental Impact Statement (EIS) to evaluate these and other issues.

Hillary Hoffman’s blog is a great analysis of some aspects of the ACOE action and domestic law issues.

An excellent analysis of the ACOE action by Jamison Colburn can be found at NEPA Lab.