Standing Rock Sioux Tribe Chairman Dave Archambault II refuted White House claims that the administration has been in constant conversation with the Tribe. Archambault said the Tribe has made repeated requests for meetings with the White House, but the administration has yet to respond.
There was never any question but that the combined forces of local, state, and federal governments had the brute force to impose their will on the nonviolent water protectors and the thousands who came to Sacred Stone Camp. However, one can ask why the courts provided legal cover for this police action. The immediate answer is that the water protectors were charged with trespass. I will examine this charge in my next blog. I want to address the question of treaty violations in this blog.
The Standing Rock Sioux Tribe argued that the route of the Dakota Access Pipeline violates the Fort Laramie Treaty of 1851, which was ratified by the United States Senate. The Constitution of the United States specifies in Article VI: "Treaties . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." Based on the Constitution the Standing Rock Sioux Tribe has a valid claim. The United States is acting, once again, in violation of its treaty obligations.
However, the United States Supreme Court has a history of racism that compromises Article VI of the Constitution. One case of particular importance for U.S. Indian law is Johnson v. McIntosh (I823). In this case Chief Justice John Marshall argued that by the right of conquest and the doctrine of discovery and the superior character and religion of the European conquerors and their descendants, the United States has exclusive right of title to the land; Indians (whom he called "savages") have "the right of occupancy." Marshall wrote in his opinion: "When the conquest is complete . . . the conquered inhabitants can be blended with the conqueror."
These two cases form part of what is referred to as "the Marshall trilogy;" three landmark decisions that form the basis of U.S. Indian law. Faith communities that have repudiated the doctrine of discovery have, by implication, also repudiated the Marshall trilogy which enshrined the doctrine of discovery into law. But they have not explicitly repudiated this trilogy. As long as people are willing to accept the opinion of the Supreme Court as the final verdict, jurists have no reason to question the precedent of the Marshall trilogy, and political actions justified by this tradition will continue.
We are at a crossroads. The doctrine of discovery has been repudiated by a number of faith communions. Legal decisions based on this doctrine have been exposed to be fabrications. What is to be done?
Let me offer four suggestions as we anticipate future actions by faith communities and others.
Faith communities and all others who hold Native American land in trust can and should return this land to the rightful owners.
Faith communities and all others can and should give money directly to elected tribal leaders, pastors and congregations, and by-pass the BIA and its appointed representatives.
Non-Native faith communities and others can and should build on the present moment to establish long-term partnerships with Native American communities and nations and learn what Native Americans believe would be helpful actions.