Excerpted From: Laura Waldman, No Settled Law on Settled Land: Legal Struggles for Native American Land and Sovereignty Rights, 26 CUNY Law Review 220 (Summer, 2023) (294 Footnotes) (Full Document)


LauraWaldmanLaDonna Brave Bull Allard, a Lakota historian and activist, had several reasons to oppose the construction of the Dakota Access Pipeline running through and next to the Standing Rock Reservation in North and South Dakota. One was the risk of a burst pipe, which could contaminate the reservoir where the Standing Rock Lakota get their drinking water, and the nearby land, where buffalo literally roam. Another was the affront to the wishes of the Indigenous people of the Dakotas that the land be preserved and respected, both for environmental reasons and to protect a Lakota burial ground. Though any of those reasons alone would have been enough, Ms. Brave Bull Allard's son was also buried next to where the pipeline was to be built.

In 2016, Ms. Brave Bull Allard offered her own land as a place to camp for Indigenous rights and environmental activists and other supporters of the global movement against the Dakota Access Pipeline. That year, at least 4,000 people gathered at Ms. Brave Bull Allard's land and other camps at Standing Rock. Together the protestors delayed the construction of Energy Transfer Partners' oil pipeline. Energy Transfer Partners, militia members, and, to Ms. Brave Bull Allard's horror, the National Guard met the protestors with resistance. As a police officer's daughter, Ms. Brave Bull Allard did not want to believe that an arm of the government would turn against the people in favor of a private corporation, yet that is exactly what it did.

The executive has not been the only branch of government to throw its weight against Indigenous rights in recent years--the judicial branch has, too. In the summer of 2022, the Supreme Court decided Oklahoma v. Castro-Huerta in favor of the State of Oklahoma, overturning the 2020 case McGirt v. Oklahoma. McGirt represented a significant step toward protecting Native American sovereignty in the United States. In McGirt, the Court held that most of Eastern Oklahoma was “Indian country,” therefore criminal cases in Indian Country were under the jurisdiction of federal courts rather than state courts, as per the Major Crimes Act. In Castro-Huerta, the Court backtracked, differentiating between Mr. McGirt, who was enrolled in a tribe, and Mr. Castro-Huerta, who was not. The Court concluded that Oklahoma could prosecute Mr. Castro-Huerta, since he was not an enrolled tribal member, for a crime committed on the treaty-granted Cherokee reservation. Though seemingly about criminal justice matters, these cases rely on a framework with roots in treaties between tribal nations and the federal government, where they have broad consequences for federal and state jurisdiction over Native American people and land.

Today, Indigenous land is at risk largely because of the greed of extractive industries for natural resources and society's reliance on conventional energy sources. I write this Note from the perspective that today's oil and natural gas have much in common with yesterday's cotton and gold. From 1838 to 1839, settlers in the southeastern United States, enabled by the federal government, drove members of five Native American nations from their homes during the Trail of Tears in an effort to seize land for mining and plantation agriculture. This serves as an example of the “doctrine of discovery” that said white settlers had the racial, moral, and spiritual authority to take the lands they wanted. Two general responses to mitigating the harms caused by the discovery doctrine were treaties between the U.S. federal government and tribal nations and the national allotment policy, which carved up remaining land that had been under tribal control into individual plots, with the goal of weakening tribal cohesion.

The cases described infra trace the judicial debate over the relationships among tribal nations, the United States, and individual states, which have frequently been formed on a foundation of greed, betrayal, and white supremacist colonial ideology that began well before the founding of the U.S. government. The legislature did not offer tribal members any better protection from displacement and genocide than did the courts, as it was concerned with protecting the interests of settlers' land theft. For example, the Treaty of New Echota in 1835 led to a forced displacement from the southeastern United States to the land now known as Oklahoma, where the McGirt and Castro-Huerta cases would start almost two centuries later.

This Note asks what justice, if any, is possible for colonized people within a government established by colonizers, and if justice is possible, what frameworks are the most effective at securing it. By exploring the historical backdrop of colonial policies and Supreme Court decisions that led to and enabled settlement, and by tracing the themes that emerge to recent cases and open controversies, this Note intends to unearth the legal vulnerabilities in establishing Native American land and sovereignty rights. It arrives at a place of hope by highlighting the work of Indigenous attorneys, activists, academics, and their allies who are demanding restitution for historical and ongoing harms.

[. . .]

The law has long been an accomplice to genocide, dispossession, and ecological devastation. Nothing, no amount of fear, greed, ignorance, or delusion, can justify it. Each generation has included people who have realized this. Whether by spreading knowledge, by confronting colonial forces with direct action, or by using the law to expose hypocrisy and express demands, Native American people have never stopped resisting.

LaDonna Brave Bull Allard died in 2021 at the age of 64. In 2018, she spoke at the United Nation's Permanent Forum on Indigenous Issues about her long struggle to oppose the Dakota Access Pipeline. Across the table sat Michelle Cook, founder of Divest Invest Protect. The two had been working together, and Ms. Cook addressed Ms. Brave Bull Allard and said:

We have no other choice but to act; we must act. We have no other choice. And I'm very thankful for the opportunity and for the invitation, to stand with you, because it changed my life for the better. And so I'm so thankful for your invitation, and I would not change my choices, and I have no regrets, and I'm thankful to stand with you, Ms. LaDonna Brave Bull Allard. And we will have justice, and we will have truth, and we're not going to give up. On each other, on this land, or [on] all the Indigenous peoples all over the world. And I love you so much, and I'm sorry--I'm sorry that this happened.

People from all over the world had come to New York to the United Nations building, crowded into a too-small room, and we were listening.

Laura Waldman is a paralegal, mediator, and CUNY Law student.