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Litigation: Indigenous peoples seek protection of environment and rights in US

Kirstyn Malcolm, IBA Junior Content EditorTuesday 27 October 2020

In July, the United States Supreme Court handed down its ruling in McGirt v Oklahoma, which has been hailed as a significant victory for Native Americans, one with implications for their governance over their peoples and lands. The case forms part of a recent trend of notable litigation seeking recognition and protection of Indigenous rights in the US.

Jimcy McGirt of the Seminole Nation was convicted of three serious sexual offences by an Oklahoma state court. He challenged the jurisdiction of the State to prosecute him based on the US Major Crimes Act, which places certain crimes under federal jurisdiction if they’re committed by a Native American within Native American territory. McGirt argued that a new trial must take place in federal court since the crimes took place on land reserved for the Muscogee (Creek) Nation under an 1866 treaty.

The Supreme Court held that the Creek Nation land – a region of northeastern Oklahoma including the majority of the city of Tulsa – remains an ‘Indian reservation for purposes of federal criminal law.’

The initial ruling that [DAPL] operations must stop until environmental impacts are fully studied means that impacts to the climate as a whole, must be considered

Gussie Lord
Managing Attorney of Tribal Partnerships, Earthjustice

‘The consequences of the McGirt decision are substantial for the Creek peoples,’ says David Paterson, Chair of the IBA Indigenous Peoples Committee. The Creek Nation itself joined McGirt as amicus curiae, given the issues involved in the case.

‘Assuming that similar reasoning would apply to other tribes with treaty lands in Oklahoma, the impacts may be substantial both to the Indigenous peoples and to those who purport to hold and exercise “rights” within their territories,’ adds Paterson.

Justice Ruth Bader Ginsburg, who passed away in September, was in the majority for the decision. Paterson notes that if Ginsburg is replaced by a Trump appointee, there is a reasonable opportunity that the McGirt decision will be narrowed, if not overturned, by a new court.

Another – albeit partial – victory for Native Americans this summer came when the controversial Dakota Access Pipeline (DAPL) was temporarily shut down by US District Judge James Boasberg, pending a full environmental review.

The shutdown order was halted on appeal in early August at the US Court of Appeals for the District of Columbia Circuit. This Court will now further consider the case, and a ruling on the eventual fate of the project is expected by early 2021.

The $3.8bn, 1,172-mile-long pipeline currently transports half-a-million barrels of crude oil a day from North Dakota to Illinois, crossing the Missouri River under the Lake Oahe reservoir, half a mile from the Standing Rock Sioux Tribe’s (SRST or the ‘Tribe’) reservation.

The DAPL has created up to 12,000 new jobs during construction and generated $156m in sales and income taxes during this phase. But it has also prompted years of protests by tribal activists and climate advocates.

The SRST began litigation in August 2016, arguing that an oil spill could pose an existential threat to them by polluting their water supply and that the DAPL crosses ground sacred to the Tribe.

This led to a series of go-aheads and halts, involving the SRST, Energy Transfer Partners – the company with the largest stake in the DAPL – and multiple US government departments.

In December 2016, the US Army Corps of Engineers – responsible for issuing permits for water crossings – said it would not approve construction by the reservation and would look for alternate routes. However, in January 2017, US President Trump signed an executive memorandum for the Army Corps to expedite the review and approval of the DAPL’s unbuilt section.

Ordering the temporary shutdown in July, Judge James Boasberg stated that ‘American Indian Tribes on nearby reservations have sought for several years to invalidate federal permits allowing the Dakota Access Pipeline to carry oil under the lake. Today they finally achieve their goal – at least for the time being.’

Gussie Lord is Managing Attorney of Tribal Partnerships at Earthjustice, which is representing the SRST. While the fate of the DAPL is uncertain, she says that ‘the initial ruling that pipeline operations must stop until environmental impacts are fully studied […] point[s] to an encouraging trend […] It means that impacts to people’s resources in the pathway of these projects, and the impacts to the climate as a whole, must be considered.’

Indigenous communities are on the frontline of climate change due to their reliance on fresh water, game and crops, and their first-hand interaction with changes to sensitive environments. This is evident in the Arctic, where temperatures are rising at around twice the global average and Alaskan villages are crumbling into the sea.

In 2017, the US Tax Cuts and Jobs Act lifted a 40-year ban on energy development, allowing oil and gas leases to be sold in a section of Alaska’s 1.5-million-acre Arctic National Wildlife Refuge (ANWR or the ‘Arctic Refuge’).

Mike Dunleavy, Governor of Alaska, welcomed the move as creating job opportunities and growth, but environmentalists and Native Americans have fought the decision.

In August, the Center for Biological Diversity launched a lawsuit against the Trump administration, claiming its approval violated numerous laws, including the National Environmental Policy Act and the Endangered Species Act.

Kristen Monsell, Oceans Program Litigation Director and Senior Attorney at the Center, explains that ‘opening the Arctic Refuge could result in the release of 4.3 billion metric tons of GHG emissions. This is the same amount of GHG emissions as 1,100 coal plants operating for one year.’

This drilling would take place in one of the few remaining pristine ecosystems on the planet, home to over 270 species of wildlife. ‘The oil industry just doesn’t belong in [ANWR],’ Monsell says.

Monsell explains that the coastal plains are sacred to the Gwich’in people, who have depended on the resident caribou herds for their subsistence and culture for thousands of years. She highlights that the United Nations recently called for an investigation over the US’ alleged violations of the human rights of the Gwich’in people in regards to the ANWR’s opening for drilling.

Five major US banks – including Goldman Sachs and Morgan Stanley – have declared they won’t finance ANWR oil drilling projects.

Paterson believes that the forthcoming US presidential election will be of greater importance than judicial process at this stage. ‘Anyone making financial commitments based on the assumption that those decisions will not be reversed by [Presidential candidate Joe] Biden would be making a big gamble,’ he says.