Indigenous groups have been the stewards of the American terrain for generations. Yet, these communities are in a constant battle not only to protect their own sacred land from ecological harm but also to advocate for a stable climate.[1] The continued exploitation of indigenous land by large corporations and the U.S. government is a reminder that colonialism is still alive and well in today’s governance.[2] The loss of critical habitat for many species that indigenous people rely on leads to not only the loss of necessary resources for survival but also sacred cultural practices. [3] Treaties between the U.S. government and indigenous groups are intended to guarantee continued tribal access to species as their habitats continue to change, however, these treaties are often not honored by the U.S. government.[4]
Despite indigenous groups not having a human-centric world view and being inherently sustainable in their cultural practices, the inclusion of indigenous communities in environmental advocacy is a more recent phenomenon. The violent past of white-washed environmental justice continues today as indigenous groups are displaced to prioritize high-speed rail, hydropower, and other green projects.[5]
In the second half of the 19th century, the U.S.’s newly-created National Parks system expelled indigenous people from their own land, prioritizing ecological conservation over indigenous human rights.[6] Indigenous communities have critically important practices and generations of environmental knowledge that, if incorporated into the larger environmental movement, can help combat climate change.[7] However, the only way to properly include the input of indigenous groups is by acknowledging the environmental movement’s violent colonial history.[8] This inability to acknowledge history leads to advocacy organizations leaving out indigenous folks from the conversations surrounding environmental justice. [9]
In recent years indigenous groups have had to defend their territory from multiple oil pipeline projects because there is often nowhere else to relocate if their land becomes too polluted to live on. [10] Since 1776, 1.5 billion acres of indigenous territory have been seized from Native Americans. [11] Today, Native Americans have control of only 100 million acres. [12] Pipelines continue to pollute indigenous territory, which destroys necessary air and water resources, resulting in Native Americans continuing to lose their own land.[13]
The Keystone XL pipeline is a proposed 1,700-mile pipeline running from Canada through the United States to Oklahoma that would join an already existing pipeline carrying oil to the Gulf of Mexico.[14] The pipeline has been controversial from the moment it was first proposed by the Canadian National Energy Board in 2011.[15] The project was denied by the Obama administration and granted by the Trump administration, only for President Biden to revoke a key permit in January.[16] The pipeline has sparked years of sustained protests from indigenous communities, religious groups, environmental activists, and neighbors directly impacted by its construction.[17] Scientists and world leaders including the Dalai Lama, Archbishop Desmond Tutu, and former president Jimmy Carter have come together to urge that the project be stopped.[18]
The Never-Ending Fight for Indigenous Communities: Beyond Keystone XL
Why has the Keystone XL pipeline received so much attention when there are plenty of other projects threatening the livelihood of indigenous communities? The many existing pipelines in the U.S. run through 2 million miles of the U.S. landscape, crossing through water tables, lakes, and waterways while threatening the ecosystems and communities in their path, in addition to fueling the climate crisis.[19]
In 2016, the Standing Rock Sioux tribe momentarily had the country’s attention when it protested the Dakota Access Pipeline. However, for those who reside in South Dakota, the battle to protect their land and its resources is still ongoing today. The Dakota Access pipeline is a 1,100-mile pipeline that starts in North Dakota and travels to Patoka, Illinois where it connects to an oil terminal carrying 450,000 barrels per day to the Gulf of Mexico.[20] The Standing Rock Sioux tribe said the pipeline would destroy its sacred homeland and that the potential of an oil leak would poison the tribe’s only water supply.[21]
After five years of protests, the Dakota Access pipeline will not be shut down by the Biden administration, which has said that the Army Corps of Engineers is still evaluating the project’s impacts.[22] Jan Hasselman, an attorney from Earthjustice, acknowledged the disappointing loss saying, “the company gets to keep the benefits of operating the pipeline that was never properly authorized, while the community has to bear the risks.”[23] Since 2010, there have been 1,650 individual oil leaks spilling 11.5 million gallons of oil from all U.S. pipelines. [24]
As new pipeline projects continue to be approved across the country, carrying millions of additional gallons of oil to an already fossil fuel dependent country, indigenous groups have had mixed results in challenging proposed pipeline projects around the country. [25] The Line 5 pipeline in Michigan was halted due to concern of polluting the Great Lakes.[26] And the Red Lake Band of Chippewa, the White Earth Band of Ojibwe, and other groups are in a legal battle to stop the expansion of the Enbridge Line 3 in Minnesota, arguing the state’s failure to consider the risk of tar sands spills and the pipeline’s effects on natural and cultural resources.[27]
The battle over Enbridge Line 3 is still ongoing and indigenous groups are calling upon the Biden administration to follow its halting of Keystone XL by stopping Enbridge Line 3 as well. As of September 2021, the Minnesota Court of Appeals ruled that a state regulator did not violate Minnesota law when it issued a key permit under the Clean Water Act to Enbridge Inc. for its Line 3 crude oil pipeline replacement project.[28] The court held that under the Clean Water Act, the Minnesota Pollution Control Agency appropriately issued the water permit when Enbridge only provided one other alternative route.[29] Minnesota’s “antidegradation standards” require the state to consider whether “prudent and feasible alternatives” are available before approving an activity that may affect waters. [30] The Appellate ruling comes shortly after the Minnesota Supreme Court denied a petition by indigenous groups and environmental activists.[31] The petition requested a review of the ruling that the Public Utilities Commission demonstrated a sufficient market to justify the supply that would be fulfilled by Line 3.[32] This comes after several other petitions were denied by the Minnesota Supreme Court earlier this year.[33]
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[1] Kyle Powys Whyte, Why the Native American pipeline resistance in North Dakota is about climate justice, The Conversation (Sept. 16, 2016), https://theconversation.com/why-the-native-american-pipeline-resistance-in-north-dakota-is-about-climate-justice-64714.
[2] Id.
[3] Id.
[4] What is the Treaty Rights at Risk Initiative?, https://treatyrightsatrisk.org/ (last visited Apr. 11, 2021).
[5] See Whyte, supra note 1.
[6] Issac Kantor, Ethnic Cleansing and America’s Creation of National Parks, 28 Pub. Land & Resources L. Rev. 41, 42-44 (2007) (discussing how indigenous people were expelled from land now used as National Parks).
[7] Ecological Society of America, Fire ecology manipulation by California native cultures, ScienceDaily (July 26, 2014), www.sciencedaily.com/releases/2014/07/140726082324.htm).
[8] Raymond Foxworth, Protecting the Earth Protecting Ourselves: Stories from Native America, NonProfit Q. (Mar. 9, 2020), https://nonprofitquarterly.org/protecting-the-earth-protecting-ourselves-stories-from-native-america/.
[9] Id.
[10] Claudio Saunt, The Invasion of America, Aeon (Jan. 7, 2015), https://aeon.co/essays/how-were-1-5-billion-acres-of-land-so-rapidly-stolen.
[11] Id.
[12] Demographics, Nat’l Cong. of Am. Indians, https://www.ncai.org/about-tribes/demographics (last visited Apr. 24, 2021).
[13] Id.
[14] Melissa Denchak, What is the Keystone XL Pipeline?, Nat. Res. Def. Couns. (Jan. 20, 2021), https://www.nrdc.org/stories/what-keystone-pipeline#whatis.
[15] Id.
[16] Rob Gillies, Keystone XL Pipeline halted as Biden revokes permit, Assoc. Press News (Jan. 20, 2021), https://apnews.com/article/joe-biden-alberta-2fbcce48372f5c29c3ae6f6f93907a6d.
[17] Nick Tilsen, South Dakota Can’t Silence our Protest Against the Keystone XL Pipeline, Am. C.L. Union (Apr. 17, 2019), https://www.aclu.org/blog/free-speech/rights-protesters/south-dakota-cant-silence-our-protest-against-keystone-xl.
[18] Your decision on the Keystone XL tar sands pipeline will define your climate legacy, Nat. Res. Def. Couns. (June 10, 2015), https://www.nrdc.org/sites/default/files/ene_14041501b.pdf.
[19] Diana Best, 5 Reasons We Need to Keep Resisting Pipelines, Greenpeace (Dec. 17, 2019), https://www.greenpeace.org/usa/5-reasons-we-need-to-keep-resisting-pipelines/.
[20] Jarrett Renshaw, East Coast refiner shuns Bakken delivery as Dakota Access Pipeline starts, Reuters (Apr. 18, 2017), https://www.reuters.com/article/us-north-dakota-pipeline-pes-idUSKBN17L0BJ.
[21] Id.
[22] Kristen Holmes & Gregory Wallace, Biden administration will not shut down Dakota Access Pipeline during environmental review, DOJ lawyer tells court, CNN (Apr. 9, 2021), https://www.cnn.com/2021/04/09/politics/dakota-access-pipeline-biden-administration/index.html.
[23] Id.
[24] Recent Pipeline Leaks Cultivate Concern for the Future, Lakota People’s Law Project (Feb. 21, 2020), https://lakotalaw.org/news/2020-02-21/pipeline-leaks.
[25] Why Are Fossil Fuels Pipelines Bad for Our Climate and Communities?, EarthJustice (Mar. 5, 2021), https://earthjustice.org/features/fighting-pipelines-fossil-fuels-oil-and-gas.
[26] Id.
[27] Ilhan Omar & Tara Houska, The pipeline that President Biden needs to stop, CNN (Apr. 9, 2021), https://www.cnn.com/2021/04/09/opinions/enbridge-line-3-pipeline-replacement-biden-needs-to-stop-omar-houska/index.html.
[28] Sebastien Malo, Minn. Appeals court affirms water permit for Line 3, Reuters (Aug. 31, 2021), https://www.reuters.com/legal/litigation/minn-appeals-court-affirms-water-permit-line-3-2021-08-31/.
[29] Id.
[30] Minn. R. 7050.0270 (Lexis 2021).
[31] Line 3 Pipeline Replacement, Minn. Comm. Dept., https://mn.gov/commerce/energyfacilities/line3/ (last visited Sept. 23, 2021).
[32] Id.
[33] Appeals court refuses to stop construction of oil pipeline, Assoc. Press News (February 2, 2021), https://apnews.com/article/us-news-minnesota-03f63876dfe60a3f4b6518575f439411.
