Carla F. Fredericks & Jesse D. Heibel have posted “Standing Rock, the Sioux Treaties, and the Limits of the Supremacy Clause,” forthcoming in the University of Colorado Law Review.

Here is the abstract:

The controversy surrounding the Dakota Access Pipeline (“DAPL”) has put the peaceful plains of North Dakota in the national and international spotlight, drawing thousands of people to the confluence of the Missouri and Cannonball Rivers outside of Standing Rock Sioux Reservation for prayer and peaceful protest in defense of the Sioux Tribes’ treaties, lands, cultural property, and waters. Spanning over 7 months, including the harsh North Dakota winter, the gathering was visited by indigenous leaders and communities from around the world and represents arguably the largest gathering of indigenous peoples in the United States in more than 100 years. 

At the center of the fight are the 1851 and 1868 Treaties entered into by the United States and the Great Sioux Nation. The pipeline route, which was chosen without input from the Tribes, runs directly through the heart of treaty lands secured to the Great Sioux Nation in the 1851 Treaty of Fort Laramie, lands to which the Sioux Tribes continue to have strong cultural, spiritual, and historical ties. Furthermore, the construction and operation of an oil pipeline directly upstream from their current reservations undoubtedly threatens the Tribes’ hunting and fishing rights expressly reserved in the 1868 Treaty and affirmed in numerous subsequent Acts of Congress, as well as their reserved water rights pursuant to the Winters Doctrine. 

But as the Tribe and their attorneys battled for injunctive relief in federal court, the Treaties were largely absent in the pleadings and court opinions. However, with the District Court’s ruling on June 14, 2017, it appears the Treaties now present the crux of the surviving argument, presenting problems for the Court in terms of both their applicability in the face of Congress’ plenary power over Indian tribes and diminished Trust responsibility as well as the appropriate remedy for the Tribes when and if these Treaty rights are violated. As such, the case provides an opportunity to analyze the truth and lies surrounding the Constitutional place of Indian Treaties in federal courts. 

Article VI, Clause 2 of the Constitution states “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Known as the “Supremacy Clause,” this consitutional provision has serious implications in federal Indian law. Of particular importance is whether treaties made with Indian tribes can be considered the “supreme Law of the Land”. The current litigaiton and historic indigenous uprising against the Dakota Access Pipeline, the route of which lies within recognized tribal treaty boundaries, provides a contemporary example of the limitations of Supremacy Clause. This article attempts to place the Standing Rock and other Sioux Tribes’ legal battle against the Dakota Access pipeline against the history of Indian treaties and treaty rights for a contemporary examination of federal courts application of Indian treaty rights and the limits of the Supremacy Clause to ensure Indian treaties and treaty rights be respected as the “supreme law of the land.”