Introduction
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 . . . . The Lakota people believe that the pipeline correlates with a terrible Black Snake prophesied to come into the Lakota homeland and cause destruction . . . . The Lakota believe that the very existence of the Black Snake under their sacred waters in Lake Oahe will unbalance and desecrate the water and render it impossible for the Lakota to use that water in their Inipi ceremony.
With the rise of oil extraction in the Bakken formation, the United States decided to reduce truck and train traffic across the prairie regions by building a pipeline.
To move oil from western North Dakota to the Patoka Oil Terminal in Illinois, the pipeline would have to cross the Missouri River.
The U.S. Army Corps of Engineers considered several routes, including one which crossed just ten miles north of Bismarck, the North Dakota state capital.
This route was rejected due to the threat to Bismarck’s water supply, should the pipeline rupture upstream from the city.
The Army Corps “did not show similar concern for the Tribe’s water source when they approved the route that went directly under Lake Oahe on the Missouri River, which is the Standing Rock Sioux Tribe’s main source of water for drinking, irrigation, and business uses.”
The Dakota Access Pipeline was ultimately built just five hundred feet north of the Reservation’s boundary and on the Tribe’s ancestral lands.
The response was swift. Beginning in late summer 2016, thousands of people began gathering on the northern boundary of the Standing Rock Indian
Tribe’s reservation.
Many called themselves “water protectors,” connecting their protest to the threat the pipeline posed to the Tribe’s survival and to the disruption of “significant sites of tribal cultural, religious, and spiritual importance . . . located along the proposed route.”
These #NoDAPL protesters eventually built a camp on tribal land and contributed an on-the-ground presence objecting to the construction of the pipeline until the camps were ordered to be dismantled due to a heightened risk of flooding in early 2017.
The #NoDAPL protests drew national attention.
The response from North Dakota was disconcerting. The state legislature considered legislation that “would make it legal for drivers to run over protesters who are standing in a roadway, clearing drivers of any liability, as long as their action was ‘unintentional.’”
Two years later, South Dakota enacted a ban on “riot-boosting” aimed at “Native Americans, state farmers and ranchers, and residents of nearby states who opposed” the Keystone XL pipeline.
The law imposed a sentence of up to twenty-five years in prison and additional fines and civil penalties, but it was ultimately blocked by a federal judge.
The Water Protectors, camping along the northern boundary of the Standing Rock Sioux Reservation, represent just the latest in a storied history of Indigenous protest and resistance. Indigenous peoples have protested against the acts of colonizers since the arrival of Europeans, with the stories of most of those protests lost to history.
As Chief Justice John Marshall explained in 1832: The Continental Congress “resolved ‘that . . . securing and preserving the friendship of the Indian Nations appears to be a subject of the utmost moment to these colonies.’”
Protest by Native people against the United States has taken many forms, including legal challenges.
The first petition by an Indian tribe to reach the Supreme Court was Cherokee Nation v. Georgia in 1831.
The Cherokee Nation had a treaty with the United States, with lands clearly demarcated.
Georgia, claiming that the lands reserved by treaty were a part of the state, extended its criminal laws over the territory and criminally charged a Cherokee man, Corn Tassel, with violating Georgia law.
Corn Tassel was convicted and sentenced to death. Although the Supreme Court issued a stay of execution, Corn Tassel was hanged.
The Cherokee Nation retained William Wirt, one of the most notable Supreme Court advocates of the day, to represent its interests.
Although the Nation lost the case for lack of subject matter jurisdiction, it prevailed the following term, winning a judgment that held that the laws of Georgia do not extend to Indian lands.
Justice Stephen Breyer has described the case as follows:
Wirt then found the case he was looking for. A New England missionary, Samuel A. Worcester, living in Cherokee territory had refused to sign Georgia’s loyalty oath, and Georgia had jailed him. He could bring Worcester’s case to the Supreme Court by way of appeal, and it was unlikely that Georgia would execute Worcester—a citizen of Vermont—before the Court could decide it. He did appeal. He pointed to the treaties and to Article VI of the Constitution, which makes treaties (along with the Constitution and federal laws) the “supreme Law of the Land.” And, not surprisingly, he won the case—despite the unpopularity of the Indian tribes and the popularity of Georgia’s position. The Court decided that the Cherokees owned the land; that Georgia had no right to make laws there; and that Worcester must be freed.
The Worcester v. Georgia opinion both culminated the first legal protest brought by a tribe in the Supreme Court of the United States and established the baseline principle that on tribal lands, the tribal sovereign—not the state—has the power to regulate conduct.
Worcester was a non-Indian protester.
Willing to work as a missionary without swearing an oath of allegiance to the State of Georgia, knowing that his continued presence in Cherokee lands was a violation of Georgia law,
he was willing to stand up for the rights of the Tribe against the power of the state.
Worcester’s victory at the Court secured tribal sovereigns across the country the important recognition that when on tribal lands, even non-Indians are subject to the laws of the tribal sovereign to the exclusion of the regulatory power of the state.
Protest by Indigenous people on tribal lands has been a feature of American history.
The #NoDAPL protesters were building on a rich tradition that developed during the civil rights era.
The American Indian Movement (AIM) featured prominently in the news cycle.
As “grass-roots protest shaped federal Indian policy by first placing and then keeping Native American concerns on the national agenda,”
AIM members physically occupied Alcatraz from 1969 to 1970, the Bureau of Indian Affairs building in Washington, D.C., in 1972, and the city of Wounded Knee, located on the Oglala Sioux Reservation, in 1973.
During the occupation of Wounded Knee, a seventy-one day standoff between approximately 250 protesters and “tribal law enforcement, U.S. marshals, the BIA police, and even U.S. military advisors” ended with an exchange of gunfire and deaths on both sides.
This Symposium Piece builds upon a history of protest by Indigenous people and dozens of Supreme Court opinions on tribal jurisdiction to first make a legal claim and then a normative assertion about the power to regulate protests in Indian country. First, tribes have the exclusive power to regulate protest activity when it occurs in Indian country. This exercise of a tribe’s inherent power applies even on land owned by the state or by nonmembers of the tribe if it occurs within the boundaries of an Indian reservation. Second, while a tribe’s exercise of its inherent power to regulate these protests is not constrained by the U.S. Constitution, tribal governments should be scrupulous in the imposition of penalties for conduct which would otherwise be protected by federal law.
To justify these positions, this Piece proceeds in three Parts. Part I defines the places over which tribal regulatory authority is exclusive. It uses the contours of “Indian country”
to describe the legally defined spaces over which tribal exercise of their inherent regulatory power is greatest and makes clear that these spaces include land owned in fee simple by nonmembers when that land is within the reservation’s boundaries.
Part II explores the inherent regulatory power of Indian tribes. It builds upon well-established Supreme Court precedent to justify why a tribe’s inherent power to regulate protest activity exists throughout Indian country. Having established that such tribal power exists, it then uses the doctrines of infringement and preemption to explain why states lack concurrent regulatory authority, leaving the tribal sovereign as the sole authority to regulate protest activity in Indian country. Part II concludes with a discussion of federal power, recognizing that Congress could impose regulations regarding protest activity on tribal lands but suggesting that it will not do so both because of its stated commitment to protecting tribal sovereignty and because its recent legislative history has shown a reticence to impose new federal regulations on Indian tribes.
Part III turns to the tribal sovereign. It explains that tribal governments, unlike state or federal governments, are not bound by the U.S. Constitution—including its protections for freedom of speech, freedom of association, and the right to petition. Part III then looks at existing tribal regulation and enforcement of protest in Indian country, particularly against tribal members, and cautions tribes to be intentional with the punishment of conduct that would otherwise be federally protected.