WASHINGTON— In a narrow vote, on June 21 the U.S. House of Representatives passed a 2018 Farm Bill that contains an unprecedented provision that would allow the killing of endangered wildlife with pesticides.
With every Democrat and 20 Republicans voting in opposition, H.R. 2, the so-called Agriculture and Nutrition Act of 2018, passed by a vote of 213 to 211. Two Republicans abstained from voting.
“House Republicans just put killer whales, frogs and hundreds of other species on the fast track to extinction,” said Brett Hartl, government affairs director at the Center for Biological Diversity. “This is a stunning gift to the pesticide industry with staggeringly harmful implications for wildlife.”
The legislation would also eliminate the requirement that the U.S. Fish and Wildlife Service analyze a pesticide’s harm to the nation’s 1,800 protected species before the Environmental Protection Agency can approve it for general use. A separate provision would eliminate the Clean Water Act’s requirement that private parties applying pesticides directly into lakes, rivers and streams must first obtain a permit.
During this session of Congress, the pesticide industry has spent more than $43 million on congressional lobbying to advance these provisions.
In addition to giveaways to the pesticide industry, H.R. 2 includes a sweeping provision that would gut environmental protections for national forests to expedite logging and mining, including eliminating nearly all protections for old-growth forests in Alaska. The legislation contains nearly 50 separate provisions that would eliminate all public input in land-management decisions provided by the National Environmental Policy Act.
“This farm bill should be called the Extinction Act of 2018,” said Hartl. “If it becomes law, this bill will be remembered for generations as the hammer that drove the final nail into the coffin of some of America’s most vulnerable species.”
GENEVA / WASHINGTON DC – Three United Nations experts and a rapporteur from the Inter-American Commission on Human Rights have joined forces to denounce attacks on indigenous and environmental rights in Brazil.
“The rights of indigenous peoples and environmental rights are under attack in Brazil,” said the UN Special Rapporteurs on the rights of indigenous peoples, Victoria Tauli Corpuz, on human rights defenders, Michel Forst, and on the environment, John Knox, and the IACHR Rapporteur on the Rights of Indigenous Peoples Francisco José Eguiguren Praeli.
Over the last 15 years, Brazil has seen the highest number of killings of environmental and land defenders of any country, the experts noted, up to an average of about one every week. Indigenous peoples are especially at risk.
“Against this backdrop, Brazil should be strengthening institutional and legal protection for indigenous peoples, as well as people of African heritage and other communities who depend on their ancestral territory for their material and cultural existence,” the experts stated. “It is highly troubling that instead, Brazil is considering weakening those protections.”
The experts highlighted proposed reforms to the National Indian Foundation (FUNAI), the body which supports indigenous peoples in the protection of their rights, and which has already had its funding severely reduced. A report recently adopted by the Congressional Investigative Commission calls for the body to be stripped of responsibility for the legal titling and demarcation of indigenous lands. The experts were also concerned with allegations of illegitimate criminalization of numerous anthropologists, indigenous leaders and human rights defenders linked to their work on indigenous issues.
“This report takes several steps back in the protection of indigenous lands,” the experts warned. “We are particularly concerned about future demarcation procedures, as well as about indigenous lands which have already been demarcated.”
The Congressional Investigative Commission’s report also questions the motives of the United Nations, accusing it of being a confederation of NGOs influencing Brazilian policy through its agencies, the ILO Convention 169, and the UN Declaration on the Rights of Indigenous Peoples.
“The report also states that the UN Declaration presents a grave threat to Brazil’s sovereignty, and it further encourages the Brazilian government to denounce ILO Convention 169, claiming it manipulates the establishment of non-existent indigenous peoples in order to expand indigenous lands in Brazil,” the experts stressed.
“It’s really unfortunate that instead of exemplifying the principles enshrined in the Declaration, the Congressional Investigative Commission questions the motives behind it and those of the UN itself, and waters down any progress made so far,” they said.
Ms. Tauli Corpuz expressed particular alarm at accusations that her 2016 visit to Brazil intentionally triggered an increase in the number of indigenous peoples reclaiming their lands, exposing them to further violence. She highlighted the fact that some of these communities suffered attacks immediately following her mission.
The human rights experts also noted that a number of draft laws establishing general environmental licensing that would weaken environmental protection were being circulated in Congress on Friday 2 June. For example, the proposed legislation would remove the need for environmental licenses for projects involving agri-business and cattle ranching, regardless of their size, location, necessity, or impact on indigenous lands or the environment.
“Weakening such protections would be contrary to the general obligation of States not to regress in the level of their protections of human rights, including those dependent on a healthy environment,” they stressed.
The experts warned that the proposed laws were at odds with the American Declaration on the Rights of Indigenous Peoples, which guarantees the rights of indigenous peoples to the conservation and protection of the environment, and protects the productive capacity of their land and resources.
Both the report and the draft legislation had been submitted by members of the “ruralist” lobby group, a coalition representing farmers’ and ranchers’ associations, the experts noted.
“Tensions over land rights should be addressed through efforts to recognize rights and mediate conflicts, rather than substantially reducing the safeguards in place for indigenous peoples, people of African descent and the environment in Brazil,” they said.
The UN experts are in contact with the Brazilian authorities and closely monitoring the situation.
Ms. Victoria Tauli-Corpuz, Special Rapporteur on the rights of indigenous peoples, Mr. Michel Forst, Special Rapporteur on the situation of human rights defenders, and Mr. John H. Knox, Special Rapporteur on the issue of human rights obligations related to the enjoyment of a safe, clean, healthy and sustainable environment are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.
Mr. Francisco José Eguiguren Praeli, Rapporteur on the rights of indigenous peoples of the Inter-American Commission on Human Rights, was elected on June 16, 2015, by the OAS General Assembly, for a 4-year mandate ending December 31, 2019. A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.
Featured image: A pair of macaws in flight. The Amazon basin is under extreme threat, as the Brazilian government passes measure after measure to gut environmental, indigenous and social movement protections. Photo by Rhett A. Butler
“The first five months of 2017 have been the most violent this century,” Cândido Neto da Cunha, a specialist in agrarian affairs at the National Institute of Colonization and Agrarian Reform (INCRA) in Santarém, Brazil, told Mongabay. According to the Catholic Church’s Pastoral Land Commission (CPT), which has been compiling statistics on rural violence since 1985, 36 people have already been assassinated in rural conflicts this year.
The latest violence came on 24 May when nine men and a woman were killed in what seems to have been a deliberate massacre on the Santa Lúcia estate in the rural district of Pau D’Arco located 860 kilometers (535 miles) south of Belém, the capital of the state of Pará.
For many years, landless families had lobbied for the creation of a land reform settlement on this estate, saying that the man claiming to own the land, now deceased, was a land thief. His widow agreed to hand over the property, but had second thoughts when INCRA officials, who cannot pay above the market price, refused to pay her what she asked.
In the meantime, landless families had occupied the area and a security guard, working for the ranch, was killed on 30 April. A posse of military and civil police went in to evict the families and to investigate the death. The families say the police arrived shooting. This version is disputed by the police, who claim that the peasant families shot at them first. However, no police officer was killed or wounded.
A landless peasant occupation at KM Mil, a settlement near the Thousand Kilometer marker on highway BR 163 near the town of Novo Progresso in Pará state, Brazil. Violence against peasants involved in the agrarian reform movement is increasing across the nation as wealthy land thieves are emboldened by the Temer administration which has done little to stop the attacks. Photo by Thais Borges
As Cunha pointed out, this is only the latest in a series of violent land conflicts this year. On 19 April, ten peasants, including children, were tortured and then murdered in the rural district of Colniza in the northwest of Mato Grosso. On 30 April a group of Gamela Indians were attacked by a large group of armed men sent in by farmers. Over two dozen Indians were injured, with four hospitalised in critical condition. Two had their hands lopped off and their legs cut at the joints.
On 25 May, 19 organizations, including the CPT and the landless movements (MST), published a letter in which they railed against the systematic “impunity of human rights violations in the countryside.” They went on: “The State is not only complicit and absent… but also an active agent in encouraging the violence, not only through the policies and programs carried out by the Executive, but also by the action of the Legislative which is destroying rights won by the workers.”
Wave of violence spurred by bancada militancy
Cunha made a similar point, linking the spike in violence to the government’s rapid dismantling of environmental laws, agrarian reforms and indigenous protections, a process that gained greater momentum, he said, after Osmar Serraglio, a well-known member of the bancada ruralista agribusiness lobby in Congress, was appointed Justice Minister in February.
“Violence is one of the ways in which agribusiness and land thieves get rid of ‘obstacles’ to their never-ending expansion,” explained Cunha.
Indigenous leaders tear-gassed by police in front of Brazil’s National Congress in April. They were protesting the surging violence against Indians seen since Temer took power, as well as the government’s assaults on indigenous land rights. Photo by Wilson Dias courtesy of Agencia Brasil
However, his, or even Temer’s, removal seems unlikely to threaten the power of the bancada. Even if the President falls, a scenario that seems increasingly likely, the agribusiness lobby will remain strong — or grow even stronger. That’s because the bancada holds a firm grip on Congress, which will likely have a big say in selecting Temer’s successor who will most likely be chosen in indirect elections in Congress.
The only way that the agribusiness lobby’s power might be challenged is if Congress passes a constitutional amendment that mandates immediate direct elections for president — a solution to the crisis many social movements are demanding, but which, as yet, seems unlikely to happen.
Agribusiness attacks on indigenous rights
For the moment, the bancada (the members of which have again refused to grant Mongabay an interview), is pressing ahead with a program that heavily favors agribusiness and is extraordinarily hostile to Indians, the environment and social movements.
On 30 May a Parliamentary Commission of Enquiry into FUNAI, the federal agency responsible for Indian affairs, and INCRA (the National Institute of Colonization and Agrarian Reform), approved the final version of its report. The Commission, whose members came mainly from the bancada, called for 67 people to be indicted for allegedly illegal activities in support of the indigenous movement. The list included a former justice minister (José Eduardo Cardozo), anthropologists, FUNAI employees, INCRA employees and 30 Indians.
Brazil’s large scale farmers and commodities companies (such as Amaggi), aren’t the only ones to benefit wildly from an agribusiness-friendly Brazilian government that attacks indigenous land rights and environmental protections. International commodities companies like ADM, Cargill and Bunge will also greatly benefit. Photo by Thais Borges
The list of names will be handed to the Public Ministry and other authorities for possible prosecution. Though no other action has yet been taken against those named in the list, the report has created a climate of trepidation, with many of those named by the Parliamentary Commission fearful of possible arrest and prosecution.
The report’s rapporteur, Nilson Leitão, who had initially called for the closing down of FUNAI, changed his position, in the face of widespread criticism, with the report proposing, instead, the “restructuring” of FUNAI.
Featured image: Cofan Indigenous leader Emergildo Criollo looks over an oil contaminated river hear his home in northern Ecuador. Photo by Caroline Bennett / Rainforest Action Network (flickr). Some rights reserved.
Indigenous battles to defend nature have taken to the streets, leading to powerful mobilizations like the gathering at Standing Rock. They have also taken to the courts, through the development of innovative legal ways of protecting nature. In Ecuador, Bolivia and New Zealand, indigenous activism has helped spur the creation of a novel legal phenomenon—the idea that nature itself can have rights.
Rights are typically given to actors who can claim them—humans—but they have expanded especially in recent years to non-human entities such as corporations, animals and the natural environment.
The notion that nature has rights is a huge conceptual advance in protecting the Earth. Prior to this framework, an environmental lawsuit could only be filed if a personal human injury was proven in connection to the environment. This can be quite difficult. Under Ecuadorian law, people can now sue on the ecosystem’s behalf, without it being connected to a direct human injury.
The Kichwa notion of “Sumak Kawsay” or “buen vivir” in Spanish translates roughly to good living in English. It expresses the idea of harmonious, balanced living among people and nature. The idea centers on living “well” rather than “better” and thus rejects the capitalist logic of increasing accumulation and material improvement. In that sense, this model provides an alternative to the model of development, by instead prioritizing living sustainably with Pachamama, the Andean goddess of mother earth. Nature is conceived as part of the social fabric of life, rather than a resource to be exploited or as a tool of production.
The Preamble of the Ecuadorian Constitution reads:
“We women and men, the sovereign people of Ecuador recognizing our age-old roots, wrought by women and men from various peoples, Celebrating nature, the Pacha Mama (Mother Earth), of which we are a part and which is vital to our existence…. Hereby decide to build a new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumac kawsay.”
The traditional Quechua relation to the natural world is firmly rooted in the Constitution. The interchangeable use of nature and Pacha Mama testifies to the indigenous influence on the Constitution.
The concept and the praxis
In the 1970s, Christopher Stone, an American environmental legal scholar, articulated the legal notion of the rights of nature in his widely read essay Should Trees Have Standing? Stone envisioned a new way of conceptualizing nature through law that broke with the existing paradigm of the commodification of nature, often established through law.
Property rights are a primary example of commodifying the natural world. When treated as property, nature incurs damages that often go unrecognized. Stone writes that an argument for “personifying” nature can best be considered from a welfare economics perspective. Under capitalist economic logic, many externalities that negatively impact the environment are not registered when calculating the cost of an action. Transforming nature legally from mere property to a rights-holding entity would force byproduct environmental effects of production to factor into cost calculations. Under this framework, nature would be better protected.
Incorporating rights of nature into a national constitution is a powerful paradigm shift, but may seem hypocritical and idealistic given states’ continuing dependence on extractive industries. In Ecuador, 14.8 percent of the GDP comes from profits from natural resources as of 2014.
Moreover, under Ecuadorian law, the rights of nature are subject to principles of so-called national development. Article 408 of the constitution stipulates that all natural resources are the property of the state, and that the state can decide to exploit them if deemed to be of national importance, as long as it “consults” the affected communities. However, there is no state obligation to abide to the result of the consultation to these communities– a gaping hole in full protection of these environments and the people living within them.
Nonetheless, Ecuador’s Constitution was a significant step in changing the legal paradigm of rights to one that is inclusive of nature.
Bolivia follows
Bolivia followed in Ecuador’s footsteps. Evo Morales, the first indigenous head of state in Latin America, was elected in 2005 and called for a constitutional reform that ultimately established rights to nature in 2009.
Again, indigenous philosophies were instrumental in the formulation of Bolivia’s new Constitution. The constitution’s preamble states that Bolivia is founded anew “with the strength of our Pachamama,” placing the indigenous understanding of nature as central to the very creation of the revised political state. Like in Ecuador, the Bolivian Constitution allows anyone to legally defend environmental rights.
Bolivia’s government soon instituted the Law of Mother Earth in 2010, later re-coining it as the Framework Law of Mother Earth and Integral Development to Live Well. The law lays out a number of rights for nature, such as the right to life and to exist, to pure water, clean air, to be free from toxic and radioactive pollution, a ban on genetic modification, and freedom from interference by mega-infrastructure and development projects that disturb the balance of ecosystems and local communities.
Part of the rationale behind the law is the hope of helping the environment through reducing causes of climate change, which is directly in Bolivia’s interests. Increasing temperatures in Bolivia pose problems to the nation’s farming sector and water supply.
Again, however, this legal concept does not match economic realities. The rights of nature are directly at odds with extractive industries that are intimately tied to Bolivia’s model of economic development. Despite legal frameworks defending the rights of nature, Bolivia’s profits from natural resources comprise 12.6 percent of the GDP as of 2014.
But there are alternatives to the Andean experience. Across the Pacific, New Zealand has also granted a legal status of personhood to specific rivers and forest, thus enabling the environment itself to have rights.
The New Zealand Take on Rights of Nature
Unlike Ecuador and Bolivia, New Zealand’s rights of nature are not embedded in its constitutional law, but rather protect specific natural entities. Native communities in New Zealand were instrumental in creating new legal frameworks that give legal personhood, and thus rights, to land and rivers.
New Zealand has bestowed legal personhood on the 821-square mile Te Urewara Park, and the Whanganui River, the nation’s third-largest river. This was part of the government’s reparation efforts for the historical injustice at the foundation of New Zealand’s state: colonial conquest of land from native peoples.
The Tuhoe tribe’s ancestral homeland is currently the Te Urewara Park. With the imposition of colonial governance, most of their land was taken from them without consultation, resulting in great spiritual and socio-economic losses. The land was designated a national park in 1954.
The Tuhoe tribe never signed the 1840 Treaty of Waitangi with the British Crown, which stripped the tribe of their sovereign right over their land. They have since contested the British assertion of sovereignty that undergirds the formation of the modern New Zealand state.
Their centuries-long struggle finally yielded results. As part of New Zealand’s reparation process towards Indigenous Peoples, the national government negotiated with the Tuhoe tribe regarding their historic land. In 2012 the Tuhoe tribe accepted the Crown’s offer of financial reparations, a historical account and apology and co-governance of Te Urewera lands. The national government renounced ownership of the land, giving the land its own personhood.
Under this framework, the land is now a legal entity in itself, owned neither by the government nor the Tuhoe tribe. The land is no longer property. It is its own untamed natural presence in and of itself, with, as per native understanding, its own life force and identity.
The land is now co-governed by the Tuhoe people and the New Zealand government.
The 2014 Te Urewara Act declares the park “a place of spiritual value.” The Act acknowledges that it is the sacred home of the Tuhoe people, integral to their “culture, language, customs and identity,” while also being of intrinsic value to all New Zealanders.
In a similar process of granting legal personhood, the local Maori tribe, the Iwi, helped the Whanganui River earn legal personhood status in 2014 after winning a long-fought court case.
This was part of a centuries-long struggle that the Whanganui tribes undertook to protect the river. Since the signing of the Treaty of Waitangi, the river has been subject to gravel extraction, water diversion for hydro-electric plans, and river bed works to better navigability, under protest from local tribes.
The Maori fought to protect the river through a series of court cases beginning in 1938, defending their claim to the management of the river as its rightful guardian. Throughout the court cases, negotiations were undergirded by the native saying “Ko au te awa, ko te awa ko au,” which translates to “I am the river and the river is me.” This reflects native philsophies of reciprocal and equal relations between people and nature.
New Zealand’s attorney general Chris Finlayson was quoted in the New York Times as acknowledging the Maori perspective as formative in the granting of rights to these natural entities, saying “In their worldview, ‘I am the river and the river is me,’” he said. “Their geographic region is part and parcel of who they are.”
Expanding Legal Horizons?
The legal concept of rights of nature signal the influence of Indigenous Peoples as political actors in state-making, fundamentally reimagining law and how the natural world is conceived. These ideas present a revolutionary rupture in the conventional anthropocentric understanding of sovereignty, and a realignment of how the natural world is valued. In fact, they could chart the path forward for a new understanding of mankind’s relation to the natural world, even if they operate within the legal structures that are not conducive to indigenous philosophies.
It is true that the rights of nature as they currently stand have deep limitations, particularly given the ongoing extraction of non-renewable natural resources in Ecuador and Bolivia. Problems of corruption, environmental inequality and economic dependence on extractive industries are major challenges to the full realization of the rights of nature.
Yet small acts can lead to lasting change. This shift in the way we relate to and legally protect nature, however small and plagued by obstacles, could be an incremental step toward a more sustainable relation to the planet that could allow us to preserve the earth for future generations.
If treaties are the supreme law of the land, as the U.S. Constitution states, then how is it that treaties can be so easily broken by a government that claims to uphold a respect for the law? An even more unsettling question: how is it that the trail of broken treaties has been able to span generations under an outdated, imperial logic unknown to the majority of the U.S. citizens? The founding of the United States is predicated on this painful contradiction between principles of equality and rule of law on one side, and the colonial appropriation of land from native peoples who have inhabited them for millennia, on the other.
The current resistance against the construction of the Dakota Access Pipeline (DAPL) is inscribed in this contradiction, making evident the non-rule of law when it comes to appropriating native lands.
The history of Standing Rock is marked by the history of colonization predicated on the Doctrine of Discovery. The progressive erosion of its Sioux territory goes hand in hand with the logic of terra nullius, which framed land in the Americas as “empty” in order to justify settler colonization.
The Sioux Nation has historically engaged in sovereign government-to-government relations with the US government. The first treaty in which the two parties engaged as diplomatic equals was the Treaty of Fort Laramie of 1851. It was the U.S. government who sought the treaty to allow for safe passage of the influx of settlers travelling west through Sioux territory during the Gold Rush from the east coast to California.
The process of negotiating the Treaty of Fort Laramie followed the colonial settler standard used in contemporary treaty negotiations. While the process was equal in theory to the traditional communal decision-making processes under which many Native Nations operated, the colonial method, which uses elected representatives, heavily favored the interests of the colonial government. Ultimately, the treaty established distinct territories for just under 10 Great Plain tribes. The treaty also permitted settlers to travel on the Platte River Road, achieving the U.S. government’s goal.
The 1851 treaty defined Sioux territory as the land where the DAPL is now being constructed. The territory fell within the western half of modern South Dakota, northwest Nebraska, a portion of northeast Wyoming, and a small part of southeast Montana and southwest North Dakota.
From the very beginning, various parties continuously broke the Treaty of Fort Laramie. Many tribes, unaware of the existence of the treaty, continued to carry out raids on tribes on legally different territories. Furthermore, settlers increasingly trespassed into the treaty territories, disrupting the buffalo hunting grounds of Native Nations. The settlers’ wrongful presence on native land led to various hostile skirmishes and bloody battles in which natives were massacred often without provocation.
But the violation of the Treaty of Fort Laramie didn’t stop there. Over the years, the U.S. government has continued to appropriate Sioux land in an ongoing process of colonization that disregards the treaty. (See map.)
In 1861, the discovery of gold in present-day Montana accentuated the flood of fortune-seekers overrunning Sioux lands in violation of the decade-old Laramie Treaty. Sioux protests to defend their rights and territory were ignored, so the Sioux took matters into their own hands to stop the trespassers. The U.S. responded by sending in a military presence.
Instead of adhering to the terms of the treaty, the U.S. government attempted to negotiate another treaty more preferential to its interests. Treaty making, instead of a diplomatic engagement between two equally powerful sovereign nations had turned into a destructive means of grabbing land and resources from native people; a form of “conquest by law” as per the book by Lindsay G. Robertson.
The result was a second treaty of Fort Laramie signed in 1868. This new treaty shrank the territorial boundaries of the Great Sioux Reservation in exchange for the U.S. federal government’s removal of all existing forts in the Powder River area, among other specifications. Yet it was a flawed treaty from the start. Most importantly, it stipulates that no changes can be made to the legally binding agreement unless ¾ of all adult Sioux males consent. Many members of the Sioux nation, particularly those within the boundaries of the territory signed the treaty. But many more bands residing north of the Bozeman Trail, such as the Hunkpapa and Sihasapa bands, did not. The treaty was not signed by three quarters of all adult Sioux males.
Yet, again, the U.S. government violated the treaty. The second Laramie treaty granted the tribes the right of regulating the entry of persons into their territory. Article II of the 1868 Treaty stipulates that nobody can enter the territory without tribal permission. But time and time again settlers have encroached on Sioux territory.
Some Americans may know that in 1874 the U.S. government sent George Custer with a group of scientists to search for natural resources, especially gold, in the isolated mountain range known today as the Black Hills. The gold they found led to an influx of miners, again in direct violation of the treaty.
Eventually, the U.S. government decided to pursue its strategy of land appropriation without bothering with the pretense of legality. The Sioux learned to be wary of treaties with the U.S. and refused to sign away their land.
In 1877, Congress unilaterally passed an act removing the sacred Black Hills from the Great Sioux Reservation, without the ¾ consent of the Sioux mandated by the Laramie Treaty of 1868. This illegal grab of sacred land brought no legal repercussions to the party that violated the treaty—the U.S. government.
In 1889, Congress again diminished the Great Sioux Reservation with the Dawes Act and Allotment Act, partitioning it into six sections, one of which was the Standing Rock Sioux Reservation. This opened up parts of the reservation to outside settlement, even though the native government still controls all reservation lands.
Sioux struggles for water are embedded in such displacements. In 1948, the U.S. government began construction of Oahe Dam, despite resistance from local tribes. Its creation flooded tribal land and forced a quarter of the reservation’s inhabitants to move.
In 1958, a federal court ruled that Lake Oahe was part of the Standing Rock territory according to the 1868 Fort Laramie Treaty. In this ruling the court said, “Where there is a treaty with Indians which would otherwise restrict the Congress, Congress can abrogate the treaty in order to exercise its sovereign right.” The court openly articulated the self-arrogated right of the U.S. government to go back on treaty obligations with Native Americans to unilaterally exercise its sovereign power.
The U.S. did just that, taking the Lake Oahe land from the Standing Rock tribe through legislation passed by Congress in September 1958 [Public Law 85-915].
Legal abrogation, or repealing legislation, dispenses with any idea of fair treaty making between equals. It undermines native sovereignty, following a racist logic of colonial elimination. It dispenses with numerous prior legal precedents that granted Native Americans some rights, such as the Indian Appropriations Act of 1871, which declared that no treaty obligation with an Indian nation before March 3, 1871 can be “invalidated or impaired.” It puts into question the idea of the “federal Indian trust responsibility,” articulated in the Seminole Nation v. United States case of 1942, which entailed an obligation on the part of the U.S. government to protect tribal treaty rights, land, assets and resources, per the Department of the Interior Indian Affairs branch.
As a federally recognized tribe, the Standing Rock Sioux Tribe is legally entitled to these obligations. However, as history has shown, U.S. principles and laws do not seem to have the same meaning when it comes to Native Americans.
The United States claim that it can abrogate treaties with Native Americans has been upheld by US courts as legal. Law in our modern eyes carries the weight of legitimacy.
But because something is legal does not make it right. In the case of the Sioux, alongside every other Native American nation, laws and treaties have all too often been used not as a protective shield, or even as a neutral arbitrator, but as a weapon. That weapon is predicated on a racist, colonial history that invalidated native people’s rights to their land, to their sovereignty, to their cultural expression, to their very lives.
Whether it is the gold rush or the oil rush, the U.S government continues even now to invade native land and break treaties. The proposed DAPL would pass under Lake Oahe, the land that was openly, “legally” taken from the Sioux tribe in 1958 by Congress, despite the prior 1868 Treaty that had legally granted the Sioux rights to the land.
Today’s protests at Standing Rock today can only be fully understood in light of this colonial legacy, which from the beginning proclaimed that native lands were empty and that native people, were, in effect, nothing more than the rocks, the trees, the water that they now so valiantly strive to protect.
Let us fight against this narrative, and show through Standing Rock that native tribes are sovereign nations that possess the inherent right to life on their territories. Let us show that Native American lands are not empty, but that proud sovereign peoples live there, alongside the earth, water, rocks and trees, wind and sky, encompassing a vibrant fullness in their long defense of life.
There never was terra nullius. The only emptiness to be found exists in the hollow promises of the United States, in the historic lack of equitable substance in the U.S. legal system.
In that spirit, many U.S. citizens are now, finally, refusing to turn a blind eye to the trail of broken treaties. They stand with Standing Rock, and are petitioning President Obama to honor the treaties (petition here): “The Native nations have upheld their end of the bargain; it is time the U.S. government did the same.”
