Category Archives: #NoDAPL

Rotten to the Core

The recent story that appeared in The Intercept about the private security firm Tiger Swan, its cooperative intelligence-gathering with local, state, and federal law enforcement authorities, its propaganda work in behalf of the Dakota Access Pipeline, and the sometimes-brutal tactics it used to protect the corporate “assets” of Energy Transfer Partners, the Fortune 500 company behind the construction of the DAPL, should be a much larger story than it is.  The Tiger Swan story reveals the rottenness that lies at the core of America’s continuing treatment of native peoples and their allies.

Tiger Swan, as revealed in the documents obtained and published by The Intercept,  produced intelligence briefings for law enforcement agencies, kept close tabs on the Water Protectors at Standing Rock, and may have infiltrated the protesters’ camp.  They spread disinformation on social media,

Police guard a bridge near Oceti Sakowin Camp on the edge of the Standing Rock Sioux Reservation on December 3, 2016 outside Cannon Ball, North Dakota, as Native Americans and activists from around the country gather at the camp trying to halt the construction of the Dakota Access Pipeline. / AFP / JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)

measuring the influence of their posts and stories, and may have kept something like an “Enemies List” to trace leaders of the protest movement.  All of this in the name of a corporation, the business interests of which they protected against an overwhelmingly peaceful protest movement run by people worried that the DAPL could jeopardize waters flowing through the Standing Rock Reservation.  To the mercenaries at Tiger Swan, the protesters were “jihadists” and they should be countered using similar tactics.

Fort Apache, the Bronx.  You remember that.  Or American soldiers in Vietnam marching out on patrol into “Indian Country.”  The supposedly warlike qualities of native peoples and the supposedly violent lands on which they lived have been transposed time and again as a way for American soldiers and officers to comprehend whatever conflict they engaged in.  These soldiers enter the theater in Apache helicopters, following the Tomahawk cruise missiles that preceded them.

Here, the scenario is flipped. The Jihadists that American forces fight in other parts of the world provide the language for Tiger Swan’s understanding of the #NoDAPL movement and, in effect, their lens for understanding native peoples at home attempting to protect their quality of life.  The language of war, of insurgency, has returned to Native America.

I have written about Standing Rock and the #NoDAPL movement before, so you know how I feel about it. If you are reading this blog, chances are you read about the protests, watched the DIY reporting from the protestors themselves, or saw the courageous on-the-ground journalism by Amy Goodman, her colleagues at “Democracy Now!” and other media sources.  Some of those reporters put their bodies on the line to bring this story to you and me.

You also will remember, no doubt, the images of private security forces roughing up the Water Protectors.  Painful images.  Disturbing.  Police dogs.  Military vehicles.  Body armor, automatic weapons, violence.


IF YOU WATCH or listen to right-wing media, you will learn that left-leaning college students, protesting on their campuses, are the major threat to freedom of thought, speech, and expression. Coddled and intolerant, the story goes, these fragile snowflakes will not expose themselves or allow others to be exposed to ideas with which they disagree. They will drown out the voices of those whose ideas they oppose.  You read about the protests at Middlebury.  And maybe you saw the recent news coming out of Evergreen State College in Washington. Be afraid of the students, we are told, and too many people seem willing to comply.

I am going to use this Intercept piece in my Native American history class in the fall. I may use it the first day, or I might assign it at the end. Whichever, I feel my students need to see this stuff, think about it, and remember that the power of history can hang heavy on the backs of too many Americans. It might rile the students up.  Maybe they will protest.  Maybe they will get pissed and start breaking shit.  More likely, if they are good history students—and most of them are—they will see this story for what it is.

In recent weeks, David Grann’s Killers of the Flower Moon has gained a lot of attention.  He tells the story of the murder of oil-rich Osages in the early twentieth century. It is a riveting story.  Historians have known about the Osage murders for a long time, but it is good that Grann brought it to the attention of a broader public.  Its significance should be clear.

From Jamestown to Standing Rock, from the Virginia Company of London to Energy Transfer Partners, the partnership of corporate and business interests with the forces of the centralized state has been a constant in American history.  This is not partisan.  Tiger Swan was doing business during the Obama presidency.  It continued its work under Creon Trump.

I reason here from the premise that no corporate asset is more valuable than a single human life.  Yet, as I write, I read about how state after state is trying to enact measures to criminalize protest.  I listen to the recording of Montana’s new congressman pummeling one reporter (who cannot fight back) and read how the tough-guy governor of Texas took a break from tormenting LGBTQ kids to joke about shooting others.

It is abundantly clear that the forces of suppression and violence that have been part of the lived experience of peoples of color on this continent for centuries are now threatening to affect non-native peoples in unprecedented and alarming ways.

There is a wonderfully revealing passage in Vine Deloria’s famous book Custer Died for Your Sins: An Indian Manifesto. “When the Kennedys and King were assassinated,” Deloria wrote, “people wailed and moaned over the ‘sick’ society.  Most people took the assassinations as a symptom of a deep inner rot that had suddenly set in.  They needn’t have been shocked. America has been sick for some time. It got sick when the first Indian treaty was broken. It has never recovered.”

Dakota Access, and the sorts of collusion between law enforcement, corporate interests, and for-profit armies like Tiger Swan, show that the sickness Deloria described is still here. Indeed, it has festered, become malignant, and done its damage in new ways in this new world order. Tiger Swan did its work during the Obama years.  It continues its work now.  It continues to protect ETP’s corporate assets.  The sickness runs deep. The rottenness is profound. If, as Felix Cohen once wrote, native peoples, “like the miner’s canary,” mark “the shifts from fresh air to poison gas in our political atmosphere,” then “our treatment of Indians…reflect[s] the rise and fall in our democratic faith.”

Let’s not forget Tiger Swan.  Let’s remember that history is not only part of the past.

The Winters Doctrine and Dakota Access

After class a couple of weeks ago, one of my students asked me why the Winters decision had not played a larger role in the Water Protectors’ efforts to defeat the Dakota Access Pipeline. The students had read Winters v. US (1908) and they had been following closely developments at Standing Rock in their current events reading.

I have been teaching college history for a long time, but I am still reminded quite often how much there is that I do not know. My very best students frequently drive me back to the piles of books in my office, or to the library, or to the wonderful world of resources available online.  Sometimes their questions force me to ask my friends—historians, anthropologists, and, in this instance, lawyers—for guidance.  I learn a lot through teaching.  It is why I am so happy and feel myself so fortunate to be at Geneseo.

Winters, as Charles Carvell noted in an extremely useful article that appeared in the North Dakota Law Review, is quite simply a phenomenal ruling. “It occurred at a time,” Carvell writes, “when Indians wars were not distant memories and when federal Indian policy was      not to promote or even protect Indian interests but to break apart tribal communities and assimilate Indians into white society.” This was, Carvell continues, the era of Allotment, and of boarding schools—a full court press against native peoples and their cultures.   “The decision occurred at a time when the disappearance of ‘the Indian’ and Indian tribes was thought to be at hand.  It was issued a few years after Lone Wolf v. Hitchcock,” the 1903 decision that recognized the plenary power of Congress over Indian affairs and the ability of Congress, unilaterally and regardless of context, to abrogate an Indian treaty.  Winters was litigated as settlers crossed the Plains in droves. Still, “despite the milieu in which it was litigated, the Winters decision protected tribal interests.”

How did it do that? The Court held that when Congress established an Indian reservation, it established as well a right to the water necessary for that reservation to achieve its purposes.  Since one of the stated goals of the reservation policy involved leading native peoples towards what the federal government and many reformers considered a civilized way of life—and in this instance the native peoples in question were the Gros Ventre and Assiniboine communities residing near the Milk River on the Fort Belknap Reservation—that meant guaranteeing them the water they needed to undertake stock-raising and agriculture.  Thus the Winters Doctrine. Settlers upriver had diverted waters from the Milk River and this, the Court held, was unlawful.

So at the very time that Congress was seeking to dispossess native peoples and eradicate their culture, the Court, in this quirky case, recognized that these reservations had a claim to water superior to that of the settlers who coveted this vital resource.

Water is essential on the plains.  As the Water Protectors have asserted, “water is life,” and in their view, the Dakota Access Pipeline jeopardized waters flowing through the reservation.  As early as 1976, according to Carvell, the Standing Rock Sioux Tribe asserted that it controlled water and other natural resources on its reservation. The Standing Rock Sioux that year began demanding that all users of water obtain the approval of the tribal government.

And the Standing Rock Sioux have not only stated that they have control over their waters, but they have acted on their words. “They have developed on-reservation water resources, and reject any notion that in doing so they are subject to state regulatory authority. They have developed,” Carvell continues, “irrigation projects and water for domestic, municipal, and government purposes.”

Standing Rock, in other words, has asserted that its reservation was established as a permanent homeland and, as a result, that it “is entitled to use all water necessary to make itself economically self-sufficient, and because what is necessary to ensure self-sufficiency is never stated the tribe’s water right is ‘inherently unquantifiable.’” The scope of their claim is immense, extending to “the full spectrum of uses necessary to the ‘arts of civilization.’”

It is not difficult to imagine that an oil spill or a pipeline break upriver would threaten these water resources. Pipelines break. They leak. Oil spills.  It has happened in the vicinity of the Dakota Access in recent months. It is obvious that these accidents would threaten tribal water resources.  But North Dakota is unique in terms of western water law. The amount of water to which tribes in North Dakota are entitled has never been quantified, and as a result, one might argue that the Winters doctrine has, strictly speaking, never been applied to Standing Rock and other reservations in the state.

The efforts of the Water Protectors and their lawyers to obtain restraining orders to prevent the completion of the Dakota Access pipeline did not address these issues.  Nor have treaty guarantees and other matters received a full airing in court.  Needless to say, if the Dakota Access Pipeline is completed, and it is beginning to look like that is what is going to happen, many of the most pressing historical and legal question will not have received a full hearing.  And that, along with President Trump’s determination to undermine the Environmental Impact review, makes this episode even more disappointing and unfortunate than it otherwise might have been.

Donald Trump to Native America: Go To Hell

Today comes news that President Donald Trump, the Creon for the new millennium, will sign an executive order authorizing the completion of the Dakota Access Pipeline.   Before the confirmation of his nominee for Secretary of Interior, before any nomination for a new undersecretary for Indian Affairs at Interior, before any consultation with Native American tribes, before the confirmation of the fool he nominated to head the Energy Department (and who owns stock and sat on the board of the companies most interested in completing Dakota Access),  Our Creon has told America’s Native Peoples, in essence, to go to hell. Damn your protests. Damn your water.  Damn you and your quality of life.  Stock in Energy Transfer Partners, the parent company of Dakota Access, meanwhile, was up 4%.

This is disappointing news, but it is not surprising, for Donald Trump is no friend to American Indians, and it looks like his presidency is going to stand in stark contrast to that of his predecessor, in this as in so many other ways. Some have expressed the fear that he will bring back the Termination era.

Little Hands

Barack Obama’s presidency, after all, had been one of great consequence for the nation’s roughly five and a half million Native Americans, and he left large shoes for the man with little hands to fill.

Native peoples voted for Obama in overwhelming numbers, contributing to his landslide victory in 2008 and his reelection in 2012.  President Obama kept the promises he made to Native peoples. He worked with Congress to secure significant increases in funding for the Indian Health Service. He appointed a policy advisor to counsel him on Native American issues, and he held an annual White House Tribal Nations Conference in order to “strengthen the government-to-government relationship with Indian Country and to improve the lives of American Indians and Alaska Natives.” He signed legislation settling at long last the notorious Cobell case, involving the government’s terrible mismanagement of individual Indian trust accounts, and implemented a land buy-back program that has returned more than half a million acres to tribal control. And when President Obama signed legislation reauthorizing the Violence Against Women Act, it included a new provision allowing tribes to arrest and prosecute non-Indians who committed acts of domestic violence against Native American women, a major problem when courts had held in the past that tribal governments lacked the power to prosecute non-Indians on reservations.  The bipartisan HEARTH Act, signed by President Obama in 2012, allowed tribal governments additional control over their lands. And in 2010, he announced his support for the United Nations Declaration on the Rights of Indigenous Peoples, allowing the United States to join the rest of the world community in a statement affirming the rights of native peoples to live their lives in their own way under institutions of their own choosing.  Read it, if you have not done so already.

As was his wont, President Obama was always cautious.  Too cautious for many of us. He took his time in intervening at Standing Rock, but the Army Corps of Engineers placed a hold on construction of the controversial pipeline while the project was given further review.  In this, as in so many areas of his presidency, President Obama did not go as far as many of his supporters wanted.  Construction might resume, as the thousands of protestors at Standing Rock pointed out.  Still, despite his caution, the record of accomplishment was a significant one.

I am not sure if the steps President Obama took, and the recent publication by the Army Corps of Engineers of its intent to begin the environmental impact process, will be adequate to stave off Our Creon’s executive order.  If you know environmental law, I would love to hear and learn from you.

Because I am not sure what will happen next.  I am not optimistic. And that I am not optimistic really bums me out, because there are a hell of a lot of problems out there that sane political leaders from our two major parties might be able to solve. If they wanted to.  It is a choice, really.  Solve them or not.  But no excuses. Our Creon has said nothing about Indian affairs. Perhaps, despite his record and the racial vitriol his campaign generated, there is room for those who know the issues to work together.  Sometimes I think so.  Ryan Zinke, who Trump nominated to head the Interior Department, made a point of reaching out to Native American communities in his home state of Montana during his brief congressional career.  Collaboration and cooperation between the federal government and Native nations is not only sound policy; it’s the law.  But Zinke did it, and some Native Americans appreciated his efforts.

Of course the Republicans’ promise to repeal Obamacare, aggressively exploit fossil fuels in Indian country, and drastically cut federal spending all bode ill for Native American communities.

But Our Creon campaigned in part on a promise to restore the nation’s aging infrastructure.  He could fulfill a campaign promise and aid Native nations by pushing through Congress a program to repair and replace roads, bridges, and dams on Indian reservations.

Senators and representatives from states with large Native American populations have urged caution in repealing the Affordable Care Act, noting that the progress made in reducing the still gaping health disparities between Native Americans and non-natives were indeed significant and much work remains to be done.

Republicans who supported their candidate’s call for “law and order” might support additional legislation to protect Native American communities, especially women and children, from domestic violence.

And Republicans who favor a smaller federal government might recognize the virtues of supporting the inherent sovereignty of Native American nations and cooperate with Democrats in providing them the resources they need to govern their communities, develop their economies, and tackle the myriad challenges they face.  This could happen.  But the initiative certainly will not come from the Executive Branch.

President Obama left office with significant achievements but with much in the realm of Indian affairs unsettled.  The new president has already weighed in on Dakota Access.  But there are many other challenges that still must be confronted.  Native peoples, for instance, will continue to face concentrated conservative assaults on important and successful pieces of legislation like the 1978 Indian Child Welfare Act. Poverty and a lack of opportunity in Indian Country remain vexing challenges to policy makers and tribal leaders alike. Racial violence remains a problem, with a “Red Lives Matter” movement slowly growing in the shadow of the Black Lives Matter campaign against police brutality.  And, of course, the slow burning insults of cultural appropriation and the use of Native American symbols and images as offensive mascots for sports teams continues.  Congress, in recent years, has found bipartisan support for programs and policies that have helped to close, ever-so-slowly, the enormous gaps between Native peoples and non-native peoples in health, education, and welfare, and President Obama played an immensely important role in that. We might have hoped that this slow but steady progress of the last eight years not be abandoned by our leaders.  But today’s unilateral and aggressive action makes that hope seem ever so remote.

Updates on Dakota Access

The Sierra Club has produced an excellent, brief, overview of the current state of the Dakota Access Pipeline, and the efforts of the Water Protectors to halt its construction.  This may be the best brief summary of the issue I have seen.  You and your students will find this useful in arriving at an understanding of a movement that is both alike and unlike so much of Native American History: A protest movement, utilizing social media and networking to assemble a widespread, grass-roots protest movement, and yet another chapter in the long struggle of native peoples to protect not only their lands, but the land.



If you are reading this post, you probably already have been following the news from Standing Rock. You likely have been reading posts on Facebook and Twitter and watching video clips showing armed police officers, or state troopers, or private security guards and their gnarly dogs, roughing up protestors who have stood against the Dakota Access Pipeline. You have probably read reports of these same police forces, doing the pipeline company’s business, firing rubber bullets at peaceful protestors and locking them up in small pens. You have likely read about how they have attempted to suppress free speech by shutting down wireless service, because they do not want you and I to know what they are doing to disrupt the protests, and how they have now started using Facebook to compile information on those gathered to oppose the pipeline.  You may have checked in on Facebook in solidarity with the protestors to defeat this effort.

Much of the information about the protests comes from participants in the protests. Some of it is polemical.  It is likely that some of the reports are exaggerated.   But watch the videos, and read what you can.  You can draw your own conclusions.

This is an important story. My students, I know, want to know more about it.  It is a protest, and a movement, of significance, and it is one on which we must inform ourselves.  The mainstream media has begun to cover the protests, but the #NoDAPL movement still receives little coverage relative to the presidential election and the Democratic candidate’s email problems.  Still, there are good sources of information out there.  The Indian Country Today Media Network has provided solid coverage.  Pechanga.Net is a great go-to source for updates from newspapers across the country, as is

The Dakota Access Pipeline, according to the useful primer presented by the Seattle Times, will transport oil from North Dakota to a shipping center in Illinois.  From there the oil will be sent to refineries in the Midwest and along the Gulf Coast. The pipeline, which is already nearly 60% complete, was originally slated to run closer to the town of Bismark, ND, but was rerouted to pass under the Missouri River just a short distance upstream from the Standing Rock Reservation’s northern border.  Residents of Bismark did not want the pipeline to jeopardize their own water supply, so it was directed to the south.  The pipeline does not run through the reservation, but it does threaten defend_the_sacred_-_courtesy_indigenous_environmental_networkStanding Rock’s water supply. It runs through lands that had been guaranteed to the Lakota Sioux in the treaties held at Fort Laramie in 1851 and 1868.  Lakota Sioux lived on these lands, knew these lands, and buried their dead there.

How those lands slipped from the Indians’ control is a worth noting. The 1851 Fort Laramie treaty was an agreement in which the United States attempted to secure peace between those Indian nations “residing south of the Missouri River, east of the Rocky Mountains, and north of the lines of Texas and New Mexico.” The many Indians who came to Fort Laramie to meet with American officials agreed “to abstain in future from all hostilities whatever against each other, to maintain good faith and friendship in all their mutual intercourse, and to make an effective and lasting peace.”  The Indians who signed the treaty agreed to allow the United States to “establish roads, military and other posts, within their respective territories,” and in return, the United States agreed “to protect the aforesaid Indian nations against the commission of all depredations by the people of the said United States, after the ratification of this treaty.” The territories of the tribes were defined, chiefs with whom the United States would interact were to be designated, and an annuity paid by the United States for ten years.  It was an attempt by the American government to sort out the players on the Plains, to control a region where its authority was still exceptionally weak.

The 1868 Fort Laramie treaty modified this agreement. It was a peace agreement between the United States and the Sioux. It was a critical component, along with the 1867 Treaty of Medicine Lodge Creek, in achieving the American policy of Concentration.  In so doing, it defined the boundaries of the “Great Sioux Reservation,” a tract mostly in today’s South Dakota west of the Missouri River where their possession would be undisturbed. The United States, however, never expected that native peoples would remain as they were, and the treaty included provisions directed towards fundamental change in how the Sioux lived upon the land. The treaty gave to the President of the United States the right to begin individualizing Indian landholdings, to move towards the policy that later would be called allotment.

Congress passed legislation in 1871 that formally ended treaty making.  And, in 1888 and 1889, Congressional commissioners succeeded in breaking up the Great Sioux Reservation, depriving the Sioux near the Standing Rock Agency of the lands under which the Dakota Access Pipeline will now burrow.  The state of North Dakota recites the sordid tale on its official website.   The agreement to reduce the reservation was obtained through threats and duplicity.  Congress, well before the notorious Lone Wolf decision of 1903, did not feel that it was bound by its own treaties, and viewed them as obstacles it must find ways to overcome.

If you have read the news reports, you will know that some of these lost lands are considered sacred by the Standing Rock Sioux, and that in the process of constructing the pipeline, graves have been dug up and desecrated.  National political leaders, by and large, have been silent.  Democratic candidate Hillary Clinton’s campaign released a deeply unsatisfying statement that recognized the protestors’ rights to free speech, while acknowledging as well the pipeline workers’ right to do their job. Because the protestors wanted to stop construction, Secretary Clinton’s campaign has encouraged the protests, only so long as they have no effect on the pipeline project.  Hold up your signs, but get the hell out of the way, she seems to be saying.

Students of Native American history will know well that native peoples have long faced the combined power of corporate and state power.  The railroads, mining companies, hydroelectric, the fossil fuel industry—all aided by state and federal authorities—have appropriated tribal lands and resources.  It is an old story.

Perhaps something has changed in the country. During the presidential primaries, the insurgent candidacy of Bernie Sanders drew upon a growing disaffection with increasing corporate wealth.  Many Americans, even some of those who support Donald Trump, expressed a belief that their lives are not their own, that huge, multinational corporations call the shots.  Native peoples could have told them about this long ago, of course.

I have no idea how long the protests will go. I do not know whether they will survive the brutal winter that will soon descend upon North Dakota.  I do not know whether the protests at Standing Rock will call attention to other instances, going on right now, where corporate interests are seeking access to the resources in native communities, or threatening Indian lands and water supplies.   These other struggles have not drawn nearly the attention of Standing Rock. Perhaps the #NoDAPL movement will force us to consider what sort of country we want to be:  one in which corporations, shipping fossil fuels, are not more important than the right of native peoples to clean water and control of their lands.  Perhaps we might all consider our own appetite for the products of extractive industry, and consume less, in the awareness that we are all at some level complicit in creating the demand for the fossil fuels that oil companies want to ship across and under Native Ground.


The Dakota Access Pipeline story continues to work its way into the mainstream media.  The Nation Magazine continues its coverage here.  Now, for someone, somewhere, to try to get the two major party candidates for President to take a position on this controversy, perhaps the most significant Native American protest movement in the last decade.