On November 29, 2016, the two of us traveled to and spent four days camping at the Oceti Sakowin Water Protector’s Camp as guests (no different than anyone else) of the Standing Rock Sioux Tribe in North Dakota. There were approximately 8,000 other people there in tents, tipis, cars and motor homes.

Going in, we knew that the Morton County Sheriff’s Department in conjunction with militarized private security had used extreme and unconstitutional measures against peaceful demonstrators relying on prayer to stop what they call The Black Snake. While we initially intended to volunteer for the legal team defending the many demonstrators, our limited time soon led us to focus on the activities of the Council of Elders which managed the camp on behalf of the tribe.

The daily meetings of the Council of Elders provided practical and spiritual direction for the huge and unwieldy encampment. The encampment, called Oceti Sakowin, was and is a profoundly meaningful cultural as well as political movement. It marks the first time in decades that the entire Sioux Nation leadership has gathered together. It also marks a renaissance for the Sioux Nation which has suffered historic dispossession of its lands, language and sovereignty.

The aim of the Water Protector’s camp is to stop the Dakota Access Pipeline (DAPL), which threatens the tribe’s drinking water and native sites of long-standing sacred meaning and significance. The 1,172-mile underground pipeline would transport 470,000 barrels daily of crude oil fracked from the Bakken oil shale fields across North Dakota, South Dakota, Iowa, and into Illinois. There it will connect to an existing pipeline network which will carry the crude down to refineries and export facilities on the Gulf Coast.

Contrary to its proponents’ claims that the pipeline will enhance “energy independence,” much of the oil may simply be exported under 2015 federal legislation that ended the 40-year old ban on exports of unrefined petroleum. The resultant tightening of domestic supplies will tend to increase the cost of gasoline and heating fuel for U.S. consumers.

The procedural history which generated the Standing Rock conflict reflects poorly on the administration of environmental regulations we rely on to protect wildlife habitat and human health. The National Environmental Policy Act (NEPA) requires an environmental impact study that does what the name implies: it assesses the environmental effects of a proposed project. DAPL largely circumvented this requirement and hence much federal regulatory oversight by obtaining incremental permission on an acre-by-acre basis instead of conducting a legally required environmental impact study analyzing its impacts and alternatives as a whole.

The original plan routed the pipeline near Bismarck, North Dakota’s capital and largest city. Rather than risking the contamination of Bismarck’s water supply from potential oil spills, planners re-routed the pipeline’s path south to within a half mile of the Standing Rock Reservation where it would threaten the tribe’s water supply and sensitive habitat instead. These reservation lands are the permanent homeland to the Standing Rock community and are integral to their identity and existence as a people. The Sioux Nation has fought for centuries to protect its territory from colonization and conquest.

The final link of the pipeline’s re-routing is 90-feet below Lake Oahe, a massive reservoir which inundated 56,000 acres of the Standing Rock reservation. The lake, which extends for 231 miles from north to south, provides drinking water for both the tribe and millions of other residents of the Missouri River Valley.

During our first morning we reconnoitered the camp’s perimeter. We talked and we wondered who owned the subjacent rights under the bed of Lake Oahe through which that last link of the Dakota Access Pipeline is slated to be drilled. Shortly thereafter we attended our initial Elder’s meeting. There, we were particularly impressed by the articulate presentation delivered by Phyllis Young, a member of the Standing Rock Treaty Council. After the meeting adjourned, we introduced ourselves to her and told her that we wanted to help delineate some of the big picture legal parameters that the DAPL intrusion upon the Tribe raises.

During our initial talk with Phyllis, she invited us to join a group of lawyers meeting that night in a back room of a local casino to strategize. At the casino meeting, Phyllis gave us a copy of Public Law 85-915 enacted by the U.S. Congress in 1958 to pay the Standing Rock Tribe for taking its 56,000 acres for Lake Oahe ten years earlier. Ford scrutinized the document while Larry researched its subsequent history on the internet.

Under historic treaties existing before September 2, 1958 the Standing Rock Tribe owned the lands that Lake Oahe flooded. Moreover, section 6 of Public Law 85-915 reserved to the Standing Rock Tribe all rights to oil, gas and “all other minerals of any nature whatsoever.” This led us to tentatively conclude that the scope of the rights reserved to the Tribe included the rights that sub-adjacent land under Lake Oahe implicated. The Standing Rock Oahe Act also preserved the "treaty right to hunt and fish in and on the taking area and the reservoir."

Subsequent litigation affirmed that the Standing Rock Oahe Act preserved the tribal right to hunt and fish free of state jurisdiction on the lands used to create Lake Oahe. Larry’s research discovered a subsequent law, Public Law 102-575 § 3509, in which Congress reaffirmed these reservations of rights in 1992. Recent DAPL litigation centers on the project’s destruction of cultural and historical sites and on the project’s environmental impacts. Surprisingly, none of the studies and permitting applications have yet analyzed the implications of the Sioux Nation’s retained mineral rights, nor has any litigation been filed asserting them.

As a general principle, federal Indian law "requires that treaties, agreements, statutes and executive orders be liberally construed in favor of the Indians. In addition, to the extent that federal Indian law is ambiguous, any ambiguity is construed liberally in favor of the Indians.” White Earth Band of Chippewa Indians v. County of Mahnomen, 605 F. Supp. 2d 1034, 1046 (D. Minn. 2009) (citations omitted); see also, e.g., Cty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251,269 (1992)

Furthermore, the courts have recognized that "special regard be given to the procedural rights of Indians by federal administrative agencies" and that agency action be reviewed pursuant to "the most exacting fiduciary standards. " Cobell v. Norton, 240 F.3d 1081, 1099 (D.C. Cir. 2001) (quoting Seminole Nation v. United States, 316 U.S. 286, 297 (1942)).

The summary environmental impact statement being contested by the tribe asserts that because the pipeline crosses Lake Oahe one-half mile away from the Standing Rock Sioux Reservation boundary, and Dakota Access has developed purported response and action plans, DAPL presents no potential adverse impact on the tribe. This simplistic conclusion ignores an independent review commissioned by the tribe which concluded that the spill detection and shut down mechanisms will not prevent or stop a spill and ignores the required more general federal standards of review outlined above. DAPL is said to have a carrying capacity of 470,000 barrels per day or roughly a million gallons per hour. Human fallibility and imperfect technology guarantees the inevitable leaks, spills and poisoning of the environment. And of course, the conclusion ignores the numerous retained rights the tribe has in Lake Oahe. We also believe that the tribe’s subjacent rights not only must be considered in the environmental impact statement but also present independent claims against DAPL.

As a result of the protests, in the last months of the Obama administration, on December 4, 2016, the Corps of Engineers decided to reconsider one of the permits it had issued for the pipeline and require full environment review of the project. This action effectively suspended construction of the pipeline during the pendency of the review which commenced on January 18, 2017, two days prior to Mr. Trump’s inauguration. A January 24, 2017 Executive Order does not terminate the environmental process. It seeks the process be expedited and consideration given whether to rescind the December 4, 2016 decision and withdraw the January 18, 2017 notice of intent to prepare an environmental impact statement. Public comments about the environmental impact statement may be submitted to the Army Corps of Engineers until February 20, 2017. Comments can be emailed to Mr. Gib Owen at gib.a.owen.civ@mail.mil with “NOI Comments, Dakota Access Pipeline Crossing” as the subject of your email. On January 31, 2017 North Dakota Congressional Representatives announced that the Army Corps of Engineers had granted the final easement under Lake Oahe, On February 1, 2017, however, Mr. Owen emailed us and advised that the while Army is in the process of implementing the directives of the 24 January 17 Presidential Memorandum, no actions or decisions have been made that change the 30-day comment period.

The spirit of the Standing Rock protest is powerful. It cuts through centuries of Caucasian colonialism of which genocide has been the devastating flip side of history. In contrast with colonial thinking and behavior, the Elders who lead Standing Rock embody and project deep respect and love for all people and all living things. Elders at Standing Rock explicitly identify “colonial thinking” as a point of reference by which white people historically have systematically wounded Native Peoples’ respect for what is sacred and love for life. Indeed, Colonialism’s disregard and violence hurts all human beings.

The First Peoples’ integration of spiritual and political points of view into one coordinated arrow cuts to the quick of every circumstance. It provides a basis upon which to better comprehend the traumas which colonial mistreatment has hammered down throughout repeated generations hurting both colonizers and Native people.

The wisdom of Standing Rock recognizes that perhaps all persons carry trauma in our psyches. Each of us must manage our respective psyches and traumas. We must be aware and responsible when we project our trauma on others. Such projection generates unnecessary emotional static. Such static prevents us from loving, from connecting with each other. Such static disrupts the silence where we can hear and connect with the voices of our ancestors guiding our future moves. It is anathema to our capacity to listen. It is the deep listening in the power of prayer that constitutes the primal moral force of Standing Rock.

The People of Standing Rock respect the sacredness of all life forms on Grandmother Earth. The sacredness of Water commands utmost respect. Water is the liquid upon which all life depends. Standing Rock focuses on the sacred place of water in life. Mni Waconi. Water is Life.

The Water Protectors assert Mni Waconi as a life-affirming moral stand against the death and destruction denoted by the Black Snake. The struggle between the two is a powerful, broadly applicable metaphor for our current struggle for the Earth’s survival as we have known it.