Law | Opinion

Peter d'Errico: Yankton Sioux Tribe battles Dakota Access in court

Tuesday, February 28, 2017

During the fourth week of February 2017, authorities evicted the last remaining residents of Oceti Sakowin, the #NoDAPL encampment in North Dakota that hosted tens of thousands of people. Photo: Rob Wilson [GoFundMe]

Retired professor Peter d'Errico praises the Yankton Sioux Tribe for challenging the system of "domination" that's lurking behind the fight over the Dakota Access Pipeline:

The Yankton Sioux and their Chairman, Robert Flying Hawk, have broken new ground in litigation against the U.S. Army Corps of Engineers to protect the waters of the Missouri River from invasion and desecration by the Dakota Access Pipeline (DAPL): Their complaint challenges the federal Indian law concept of “plenary power,” by which the U.S. claims total authority over Indians and Indian lands.
To my knowledge, a litigation challenge to federal Indian law basic concepts has only been done once before, by the Western Shoshone National Council in 1995. The Western Shoshone challenged the whole structure based on the so-called “right of Christian Discovery”—including the “trust doctrine” that the U.S. uses in conjunction with “plenary power.”
Standing Rock and other parties challenging DAPL have limited their arguments to conventional federal Indian law and U.S. statutes like the National Historic Preservation Act and the National Environmental Policy Act. These arguments presume the U.S. does have a “right” to dominate Indian country, but challenge the specifics of the domination—such as whether the U.S. followed proper procedures in its claim of domination.

Read More on the Story:
Peter d'Errico: Yankton Sioux Challenges ‘Plenary Power’ Doctrine in DAPL Case (Indian Country Today 2/27)

Indian Country #NoDAPL Briefs:
Oglala Sioux Tribe (February 21, 2017)
Pueblo of Pojoaque / Association on American Indian Affairs / University of New Mexico School of Law Natural Resources and Environmental Law Clinic (February 21, 2017)
National Indigenous Women's Resource Center / 13 Tribes / 105 Non-Profit Organizations (February 21, 2017)
National Congress of American Indians / 34 Tribes / 11 Tribal Organizations / 2 Civil Rights Organizations (February 22, 2017)

Federal Register Notice:
Notice of Termination of the Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC's Request for an Easement To Cross Lake Oahe, North Dakota (February 17, 2017)

Prior Federal Register Notice:
Notice of Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC's Request for an Easement To Cross Lake Oahe, North Dakota (January 18, 2017)

Dakota Access Pipeline Approval Documents:
Department of Justice Notice | Department of the Army Approval Memorandum | Notice of Termination of EIS for Dakota Access Pipeline | Easement Letter to Congressional Leadership

White House Documents:
Presidential Memorandum Regarding Construction of the Dakota Access Pipeline (January 24, 2017)
Presidential Memorandum Regarding Construction of the Keystone XL Pipeline (January 24, 2017)
Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects (January 24, 2017)
Presidential Memorandum Regarding Construction of American Pipelines (January 24, 2017)
Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing (January 24, 2017)
Press Release: President Trump Takes Action to Expedite Priority Energy and Infrastructure Projects (January 24, 2017)