Bottom Line: In Your Face

There was a discussion at my table last night about whether Indians in North Dakota have gained or lost respect as a result of the Dakota Access Pipeline controversy. There was no consensus. But what I do know is that important voices are rising in support of Tribal actions (although not so much in support of Tribal agitators), and there is much criticism of North Dakota elected officials by some of those same voices.

I have tried to read every story written about the Dakota Access Pipeline since the day I was at the site of the proposed access to Lake Oahe, August 12, the day after the protest turned real—the day after the first arrests were made. Lauren Donovan of the Bismarck Tribune and The Forum’s Amy Dalrymple are reporting the day-to-day news, so it’s pretty easy to keep up with court actions and daily activities.

More important, though, I think, are the thoughtful voices interpreting the daily news in a way we are not accustomed to. Three of them, all contributing to the website www.unheralded.fish, all three non-Indians, seem to be looking through Indian lenses as they share their thoughts on the events alongside the Cannonball River. They are Clay Jenkinson, Tony Bender and Tom Davies.

Davies, on Tribal Respect, on September 14: “I think it is absolute nonsense that none of the hearings relating to Native lands was held on reservation land. That would, of course, have required that the Public Service Commission and its representatives get out of their office and address these people as equals — as they truly are. I listen to all of the harping and Native bashing saying that the tribes should have gone to the Public Service Commission meetings over the past couple of years. That sounds so nice to the white complainers, bashers and the racists among them. But talk about a simple solution to a complex issue: Would the current problems exist if the PSC and any other governmental agency had simply held one or more hearings on the reservations? Is that too much to ask of them? Would it have been so difficult for our governor or his representatives to meet with their Native American equals on Native lands?”

Jenkinson, on Tribal Sovereignty, on September 24: “Non-Indians have a very hard time understanding and recognizing the concept of tribal sovereignty . . . White people generally regard Indian sovereignty the way they do monopoly money — they don’t think of the Crow or the Choctaw or the Navajo as foreign nations within the boundaries of the United States, but they are willing to pretend such a state exists so long as it doesn’t affect anything non-Indians really want or need in Indian country. When Indians actually assert their sovereignty in ways that hold up the “progress of white civilization,” non-Indians become enraged, and their true contempt for Indian lives, tribes, laws and traditions bursts through their usual indifference . . . If the Dakota Access Pipeline Co. or the state of North Dakota or the North Dakota Industrial Commission or the North Dakota Public Service Commission actually respected the tribal sovereignty of the Standing Rock Sioux, they would not have determined to place an oil pipeline just north of the Standing Rock Indian Reservation, any more than they would have placed the pipeline a mile south of the U.S.-Canadian border through the Red River of the North, which flows south to north into Manitoba.”

And Bender, yesterday, on the purchase of the Cannonball Ranch, by the Dakota Access people: “The purchase of the Cannonball Ranch by Dakota Access Pipeline exposes more of billionaire Kelcy Warren’s Machiavellian relentlessness. He ordered a sacred burial site bulldozed, brought in attack dogs to defend the destruction, and now he thinks he can buy his way out of it. Not so fast. North Dakota has a corporate farming law, supported by 75 percent of North Dakotans who slapped down the state Legislature in a vote last June. Former State Ag Commissioner Sarah Vogel says the purchase violates the law, which is still under attack by the North Dakota Farm Bureau and corporate interests.”

All three of those dispatches are worth some Sunday evening reading. It won’t take long. You can do it by going here, and here, and here.

I want to follow up on Bender’s calling our attention to the corporation farming law. I visited briefly yesterday with Sarah Vogel, the attorney and former North Dakota Agriculture Commissioner, who was quoted in the Bismarck Tribune about the company’s seeming violation of the anti-corporation farming law. Sarah’s got her plate full right now and won’t be involved in an action against the company. But she doesn’t have to be. Because that’s Wayne Stenehjem’s job.

Here’s what the North Dakota Century Code’s Chapter 10-06.1-02 says:

Farming or ranching by corporations and limited liability companies prohibited.

All corporations and limited liability companies, except as otherwise provided in this chapter, are prohibited from owning or leasing land used for farming or ranching and from engaging in the business of farming or ranching.

That “except as otherwise provided” phrase means only family-owned corporations can own farmland. The company building the pipeline is a publicly traded company.

Further down in that chapter it says that the county recorder has 30 days after the title to the land is recorded to send a notice to the Attorney General that the company is likely in violation of state law, and that “The attorney general shall commence an action in the district court of the county in which the substantial portion of farmland or ranchland used in violation of this chapter is situated if the attorney general has reason to believe that any person is violating this chapter.”

Well, the Attorney General certainly has reason to believe there’s a violation. It’s been in all the papers. But when a reporter asked the Attorney General’s spokesperson if Stenehjem is going to do anything about it, she said the paperwork had not arrived yet.  Good grief.

Somebody in the Attorney General’s office needs to get off their ass Monday morning and drive a couple miles across the river to the Morton County courthouse and get the paper, and slap the law all over Kelcy Warren’s face. “Commence an action.”

I swear, these Dakota Access people are the most in-your-face people I have ever seen in North Dakota. Real assholes. What they pulled earlier this month, moving their machinery in on Labor Day weekend and digging up an area identified as having burial sites was one indication of what kind of people they are. And when that didn’t work, they just went and waved a check for what I suspect was seven or eight million dollars, maybe even ten, and bought the whole damn ranch. Of course they knew it was against the law. Their slick lawyer told them that. But he also told them that once Stenehjem gets through with them, the law gives them a year to get rid of it. By then, they’ll have their pipeline built and won’t need it anymore. How cynical is that? Or Machiavellian, in Bender’s words.

Well, the ball is now in the Attorney General’s court. Let’s see how long he dribbles it around before he decides to shoot. My guess is it’ll be a pretty long game.

FOOTNOTE: Let me add that Dr. Tom Isern, history professor at NDSU, has been providing updates on the cultural and environmental assessment failures on this project on his Facebook page, an invaluable resource. Today, he called attention to this story on DeSmogBlog on conflicts of interest by the company providing the environmental assessment on this project. Earlier he shared a letter signed by more than 1,200 archaeologists, anthropologists, historians and museum workers calling for a new environmental impact statement on the project,following the destruction of burial sites by Dakota Access. Thank you, Tom.

9 thoughts on “Bottom Line: In Your Face

  1. Get your facts straight…
    This was posted by someone else so I’m not taking credit for this but here is a synopsis of the lawsuit.

    “I’ve spent quite a bit of time reading through the recent Standing Rock Sioux Tribe v. US Army Corps of Engineers judgement recently handed down by Judge James Boasberg”. (58 pages)

    In this civil lawsuit the Standing Rock Sioux Tribe (Tribe) is suing the US Army Corps of Engineers (Corps) to block the operation of Corps permitting for the Dakota Access Pipeline (DAPL). Most of you are aware that Judge Boasberg did not agree with the Tribe’s claims and thus denied the motion. Upon reading this lawsuit further, I wanted to shed light on what most of us missed by just reading or hearing the conclusion. (See link– It’s surprisingly somewhat of an easy read)

    In this lawsuit “The Tribe fears that construction of the pipeline which runs within a half mile of its reservation … will destroy sites of cultural and historic significance.” The Tribe also asserts that “the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA)”. (Pg1)

    The DAPL’s route is 99% on private land but needs the Corps’ permit to cross federally regulated waters (Missouri River) in accordance with the Clean Water Act. (Pg2) “Section 106 of the NHPA requires a federal agency to consider the effect of its ‘undertakings’ on property of historical significance, which includes property of cultural or religious significance to Indian Tribes.” Once those sites are implicated, the affected tribe must be given a reasonable opportunity to express concerns, advise and participate in the resolution. (Pg5)

    Facts about this case:
    • Summer of 2014 DAPL planned route near Sioux County on mostly privately held lands and, in sensitive places like Lake Oahe, already –existing utility lines. Using past cultural surveys, the company avoided sites that had already been identified on the National Register of Historic Places. (Pg13)
    • In ND, the cultural survey identifies 149 potentially eligible sites, 91 with stone features. The pipeline was modified to avoid all 91, and all but 9 of the other potentially eligible sites. Plans had been set to mitigate effects on the other 9 sites with the ND State Historical Preservation Officer (SHPO). By the time they had settled on a path, the route had been modified 140 times in ND Alone.(Pg14)
    • Dakota Access went public with their plans on September 30,2014 by meeting with the SRS Tribal Council to present the project. The company spoke with the Tribe’s Historic Preservation Officer, Waste’ Win Young several times over the next month and sent additional information for her to review pertaining to the proposed route on November 13. They did not receive a response from Young (Pg 15)
    • The Corps’ Tribal Liaision, Joel Ames tried to set up a meeting with Young beginning September 17,2014, without success. There were five attempts documented. (Pg16)
    • On October 2, other Corps personnel arranged a meeting with the Tribal Council and DA on the SR Reservation. When the Corps arrived timely for the meeting, Chairman Archambault told them that they had started earlier than planned and had already ended. (Pg16)
    • Ames attempted to schedule other meetings through October. When the meeting was finally held at the reservation on November 6, the DAPL was taken off the agenda because Young did not attend. (Pg16)
    • The Corps also sent a letter to tribes about cultural sites requesting that any party interested in consulting should reply within 30 days. The Corps received responses from other tribes (not SRS) and the ND SHPO, which it considered. An extra 3 weeks was granted for additional responses, and on December 18, the Corps determined that “No Historic Properties [were] Affected” The Corps also emailed Young again to set up a January 2015 meeting with the Tribe to discuss DAPL. No response was received. (Pg17)
    • February 2015, more attempts by the Corps were made to set up meetings with the SRST to no avail. February 18, the Corps granted the DAPL to conduct soil-bore testing.(Pg 18)
    • March 2, 2015 the Corps receives a letter from Young expressing concerns over sites that might be affected by core testing. Further attempts to schedule a meeting failed (Pg18/19)
    • August 19, 2015 Archambault invited the Corps’ Colonel Cross to the reservation to discuss the matter and provided contact information for his admin assistant to arrange the visit. That day Ames contacted his assistant to schedule a meeting, but without success. (Pg 22)
    • On August 29, Young expressed her frustration in being excluded from the DA surveying despite company promises to include tribal monitors. (Pg22) The Corps responded in at least three ways over the next month. Henderson (Corps District Commander) wrote a letter to Archambault acknowledged the receipt of the Tribe’s Concerns. (Pg23)
    • Harnois (Corps Archeologist) emailed SR Archeologist Morgan to invite her to participate in the site visit of the proposed DAPL Oahe Crossing. A meeting was arranged, but the next day Morgan backed out of the visit. (Pg23)
    • September 28, 2015, Young writes letter to Henderson indicating that the Tribe had received no correspondence prior to the soil bore hole testing. (pg 24)
    • September 29, Ames schedules a meeting Corps and the Tribe’s Vice Chair for Oct 28th. Two days before that meeting the Tribe cancelled “because nobody from the tribe was available to attend.” On the same day, the Tribe also canceled a meeting scheduled for November with Colonel Henderson, promising to meet with him “in a few months”. The Corps documented ten attempts to contact the Tribe in October to speak about the project (Pg24)
    • November, Corps invited the Tribe to Sioux Falls for a meeting pertaining to cultural sites along the proposed route. Five tribes attended, Standing Rock did not. (Pg24)
    • December, Morgan (SRST Arche) indicated that the Tribe would refuse to participate in tribal meetings until Colonel Henderson came to the reservation to meet with them first. (Pg25)
    • Henderson ordered Lieutenant Colonel Sexton to schedule a meeting with the Tribe, who never returned Sexton’s calls. (Pg26)
    • January and March letters from the Tribe assert that the Corps had failed to consult on the identification of cultural sites important to tribe. (Pg26)
    • January-May there were 7 meetings between the Tribe and Corps in which concers were identified and Dakota Access moved the pipeline to avoid them. The Corps also will require double-walled piping to ease concerns about environmental safety. (Pg28)
    • Spring 2016, Corps & DA offered consulting tribes the opportunity to conduct cultural survey. Three tribes participated. Areas of concern were heeded by DA and they were able to change alignment to avoid all of them. Standing Rock declined to participate in the surveys (Pg29)
    • The tribe did engage in two more visits to Lake Oahe with the Corps in March. The sites of cultural significance identified were 1.2 miles from the nearest bore pit and .6 miles from the preparation and construction area, which the Corps determined were well outside the area of potential impact. (Pg30)
    • Chairman Archambault objected to the determination. (Pg 31)
    • July 25, 2016 the Corps Environmental Assessment was issued finding “no significant impact” allowing DAPL to move ahead. (Pg33)

    *** As the facts of the case show, Tribal Leadership did little to represent the interests of their people and places of cultural significance, and the Tribe’s anger should be aimed at its leadership, not the Corps or Dakota Access.

    Much of this was taken or paraphrased from the full document:

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  2. Interesting read,although all people quoted, as well as you Jim, are hardly objective and totally honest,
    I can’t detail nearly as well as Denise where you are dreadfully wrong. But I might add this note to Clay Jenkinson’s discussion on what sovereign immunity is. He is essentially right in his explanation, but neglects to explain total immunity would also have included no residual responsibility for the motherland to provide the financial and social support to make the reservations tenable and able to exist for a century and a half. Bender’s remarks are even further over the top: bulldozing a sacred site is a little more than doing the surface work on a 15 foot corridor which they had been reliably told was NOT such a site. Bringing in “attack dogs”. Come on Tony!
    Your suggestion on violation of the corporate farming law is the most interesting and provocative. If they use it for agricultural purposes they clearly will be in violation. But the language (All corporations and limited liability companies, except as otherwise provided in this chapter, are prohibited from owning or leasing land used for farming or ranching and from engaging in the business of farming or ranching) suggests just buying the land does not constitute a violation.
    As a young Jaycee I remember the part of their creed that said we believe in a government of laws rather than of men. That’s a long time ago. Maybe today they have modified it to say government of laws unless we don’t like them, then the men take over as long as they are on my side.

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    1. John, Moving bulldozers miles to destroy a site the day after court documents attest to its archeological significance, is suspicious and provocative. It is ethically wrong. Turning dogs loose on people is an attack. What’s the problem with the description? We (Ashley Tribune) were one of two media outlets represented that day and have provided the only local first-hand account. As for the corporate farming issue, I put stock into what a former Ag Commissioner and experienced attorney has to say. Your comments about law are disingenuous if on one hand you are going to recognize the sovereign status of the tribe but disregard the standing they have under the law to be consulted nation to nation, which, according to EPA, they were not when it comes to the issue of water security. Furthermore, we cannot disregard the fact that this pipeline was sited because the tribe was considered expendable and because they were politically weaker than the all white population of the Bismarck Metro area. These critical issues are conveniently ignored in this discussion. That’s why Clay Jenkinson, Tom Davies, Jim Fuglie and I are doing the job much of the media is not. And damn straight we still get to challenge inequities by protest in America. Maybe I missed it. Has America achieved perfection? There are no laws that need to be changed or amended? I keep hearing that the protest has come too late. Perhaps justice now has an expiration date in America.

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      1. Tony, Thank you for your work reporting the news, for being a witness. We need truth tellers at this time, always.

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  3. Cannonball Ranch:

    The Land is now classified as industrial. Interesting. This range land is 30 miles south of Mandan in the middle of nowhere. Maybe ETP plans to build a refinery on this land, or so they might say.

    Records show the Meyers purchased about 2,400 acres of the ranch in 2013 for $3.2 million; that land makes up half of the sale. Financial terms between ETP and the Meyers do not have to be disclosed under state law because the land has been reclassified from agriculture to industrial, the state Tax Department said.

    The sale also is exempt from North Dakota’s Depression-era anti-corporate farming law that limits the number of nonprofit groups allowed to buy land, and requires the governor to approve land purchases.

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  4. Dirty things are happening the in DAPL camps. Rosebud RST council meeting 9/28/2016. The DAPL Camp report starts at the 4:41:30 mark in video.

    Complete video consists of casino report, then executive session, then budget & finance, then the DAPL campers report sponsored by Rosebud RST. The audio gets cut off when security guy talks.

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  5. Keep up the dialog, everyone. This is important work that we are all doing to raise the consciousness of all concerned about our environment and how we can keep it as clean and as productive as possible.
    Jim, I do want to challenge you about your statement that Bender, Jenkinson and Davies “seem to be looking through Indian lenses” in their blogs. I would say instead they are looking through their own lenses, but with empathy and an understanding of how the capitalism system in the United States functions. Again respectfully, for a white man to say that three white men seem to have Indian lenses shows perhaps that we don’t understand what it is to be Indian.
    To gain more of an understanding of the cultural issues that Native Americans face in their homeland, I would refer you to the book Ethnicity and Family Therapy by Monica McGoldrick.The first edition of the book’s chapter on the Native American Holocaust is a mindbender. The second edition’s chapter on working with Native Americans also is very good.

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