Steve Russell :
Dakota Access Pipeline: Legal encounters of
the third kind

The Indians do not claim their right to safe drinking water as U.S. citizens, but as human beings.

By Steve Russell | The Rag Blog | September 28, 2016

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Listen to the podcast of Thorne Dreyer’s September 23, 2016 Rag Radio interview with Steve Russell and Geronimo Son about the Native American protests against the Dakota Access Pipeline, here:

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Briefcase warriors who start out meaning to defend their people quickly discover the practical meaning of a lawyer Latin phrase, sui generis. It’s a fancy way to describe a class of one, and it’s the only way to make sense of federal Indian law.

U.S. law everywhere but Louisiana is rooted in the English common law. Historians pretend that the modern nation-state came to be in the Treaty of Westphalia in 1648. If that pretense were true, the elevation of secular law over canon law would date from that time. Some other fake dates for the common law are 1066, when William the Bastard became William the Conqueror by completing the Norman conquest of England and reshuffling the feudal land titles at the base of the law, and 1215, when King John was forced to sign the Magna Carta and admit that the power of kings is not absolute.

These dates derive their power from the view of the common law as a coherent whole and, by and large, it is. The common law starts with trespass in the classic sense (on land) and branches out to “trespass on the case,” from which we get tort law. The earliest contracts involve land titles; the principal concern in the laws of descent and distribution involves title to real estate.

All of the law fits together in a coherent manner and at the base of it all is “livery of seisin,” the ceremony that vests an interest in real estate from the king to his vassal, the basis for feudal land title.

Criminal law originally meant whatever
annoyed the king.

The criminal law also grows out of the feudal relation. The earliest criminal writs would allege an act contra pacem Domini Regis, against the peace of our lord the king. It originally meant whatever annoyed the king — nothing more or less. Even today a criminal indictment usually reads “against the peace and dignity of the state,” in our times understood to be against a law passed by the legislature.

All of the common law is a big consistent structure with title to land arising from the sovereign as the basis.

In the U.S. — allegedly a common law country — the Supreme Court has made us a gift called federal Indian law. It appears in the early 19th century from the fertile imagination of Chief Justice John Marshall and attaches itself to the smooth symmetry of the common law like some ugly cancerous growth.

The only things federal Indian law has in common with the common law generally are that title to land is at the base of it, and that title is conferred by a European king. It is in this land of John Marshall’s imagination that the Standing Rock Sioux and their allies are having a legal encounter of the third kind.

Many people, particularly those not prosperous enough to keep a lawyer on speed dial, live out their whole lives without any direct contact with the legal system. They never enter the courthouse except maybe to serve jury duty or deliver a pizza.

Most people are restricted to legal encounters of the first kind, straightforward applications of valid law by persons with proper authority. The Congress, the state legislature, the board of supervisors, the city council — somebody with authority makes a law and when a person is accused of violating the law he or she comes to the courthouse for a procedure to decide if the law was violated and, if so, what the consequences ought to be, if any.

Donald Trump routinely does not pay contractors and makes people sue for their money.

Some people who are prosperous enough to have a lawyer on speed dial have legal encounters of the first kind so regularly that at any given time, they have several lawsuits going. Donald Trump, for example, routinely does not pay contractors and makes people who have done work for him sue for their money,

While a legal encounter of the first kind may seem cut and dry — did he follow the law or not? — cases have a nuisance value (sum offered in settlement less than the cost of going to trial) and a settlement value (what is owed discounted by the chances of losing at trial) and most cases stop at one of those two figures rather than going through a trial and potentially an appeal to determine the “real” value.

I was often reminded when paying attention to my conduct in the courtroom that the most common legal encounter of the first kind is a traffic ticket. So the conduct of a dinky-ass municipal court judge — that would be me — could shape an accused citizen’s opinion of the entire legal system.

To some judges, a fair trial of a traffic ticket was nothing to obsess over because the worst that could happen was a small fine. To me, it was something to obsess over because I was representing the entire legal system.

Legal encounters of the second kind

When I involved myself in the Civil Rights Movement, I spent time where ordinary citizens seldom go, in legal encounters of the second kind. This would be when there is a law and there is no serious question that the law was violated but the issue in the courthouse is whether the law was valid in the first place.

My first arrest in Austin (not to be confused with first arrest ever) was over my violation of a city ordinance regulating parades. People opposed to the Vietnam War had applied for a parade permit and had the permit denied because the city council was loath to issue a permit for an anti-war demonstration.

That got us a quick ride in the paddy wagon.

The organization denied the permit determined to walk on the sidewalks and obey traffic signals so as to not need a permit, but I was one of about 20 people who would not stand for the denial. We walked right down the middle of Austin’s main drag, Congress Avenue, as if we had a permit. That got us a quick ride in the paddy wagon.

I won’t bore you with how the prosecutors kept trying to gin up something we had done against the law that could be tried without opening up an argument that what the city council had done was against the law.

Constitutional law trumps city ordinances, state laws, or even acts of Congress. But when there is a law on the books, the presumption is that it’s a valid law and the trial is merely a legal encounter of the first kind. Taking on the law itself creates a legal encounter of the second kind and takes lots of players in the system — including judges — outside their comfort zone.

We look back on the sixties and seventies and what we called at the time “The Movement,” and most of it took place in legal encounters of the second kind. The wholesale violations of laws on the books did create a cost in terms of public opinion.

For some people opposed to racial segregation or to the Vietnam War, legal encounters of the second kind were asking too much. This was the cause of MLK’s Letter From Birmingham Jail.  King was not writing to his enemies, but to his friends who endorsed his goals but not his methods.

Following the law takes courage from the
wrong side of public opinion.

King’s assertion that the Constitution and Bill of Rights would vindicate his actions was more optimistic prediction than moral certainty because words on paper don’t become actions unless judges have the courage to speak the law and executives have the courage to enforce it. Following the law takes courage from the wrong side of public opinion.

Public demonstrations by their nature disrupt business as usual, and the persons whose lives have been disrupted often respond with violence. MLK had to respond to the argument that the demonstrators must politically own the violence they “provoke” by their actions.

King denied a robbery victim provokes a robbery by having money. In different times, he might have denied that a woman provokes a rapist by the length of her skirt.

Indians should identify with the African-American struggle against color and ethnic prejudice because we are victims of the same. Those of us whose tribal nations bought into chattel slavery and acquired racist attitudes to justify it should be even more ashamed than the white slave mongers because we had every reason to know better.

King’s Birmingham letter was directed towards white people who claimed to know better. Our struggle generally, and the struggle over the Dakota Access Pipeline in particular, will be short of allies who claim to know better than the mindless corporation on the other side.

MLK’s reaction to the claim that the demonstrators must own the violence deployed against them was to observe, “Society must protect the robbed and punish the robber.” Which brings us to well robbed American Indians and why they are a step beyond African-Americans and into areas that even civil rights veterans find intimidating: Legal encounters of the third kind.

Legal encounters of the third kind

Legal encounters of the third kind confront directly the argument that nonviolence can never be revolutionary. These encounters are never chosen, but rather forced upon people who have no recourse to law. Unlike in legal encounters of the second kind, there is not much hope of rescue by any reading of the Bill of Rights the federal courts — as presently constituted — are likely to entertain.

Legal encounters of the third kind can be revolutionary, but that which may be revolutionary may also be fatal. Direct action with no constitutional safety net is not to be undertaken lightly and never over anything less than a gut issue where negotiations and conventional legal actions have failed.

Each individual deciding what to do about the Dakota Access Pipeline will have to decide for herself or himself whether that point has been reached. If it has, then you must either accept the unacceptable or go all in. It is the sort of commitment that the English colonists that did us so much harm made when they determined the time had come to shuck off the authority of the English king.

When you take yourself outside the law, you are repudiating your sovereign.

When you take yourself outside the law, you are doing just that: repudiating your sovereign. The risk the colonists took was palpable. While they have done and continue to do terrible things, they are not without courage, the sort of courage that led them to pledge to each other their lives, their fortunes, and their sacred honor.

To interrogate whether we are as serious as the colonists were in facing the authority of King George III, we must consider the situation the Standing Rock Sioux are facing and by implication the choices in front of those who choose to support the Standing Rock Sioux. By “consider,” I mean more discussion than solution because what they and their allies should do is not the sort of decision that should be directed by an old man speaking from the cheap seats.

Some people who oppose the Dakota Access Pipeline (DAP) say they oppose eminent domain powers — the very existence of eminent domain powers. This is nonsense. Without eminent domain, one landowner who does not agree about the community’s needs or is simply greedy can stop a school, a library, a fire station, a road, a bridge — or, yes, a pipeline.

Lots of materials move by pipeline and, as we should know by now, pipelines leak. How much they leak depends on the rules set up to regulate them and how diligently the rules are enforced but, regardless of that, pipelines have to be compared to rail and trucking as methods of shipment. If the real objective is simply to leave the contents of the pipeline in the ground, then we are seeking moral clarity from a dishonest premise. That is a fool’s errand.

Those who choose not to deny climate science may reasonably differ over what should be done.

Climate change is real and it is a real emergency, but those who choose not to deny the science may reasonably differ over what should be done. At this time, the support for leaving oil and gas in the ground is minimal. Coal is not being mined because the record low prices for natural gas destroyed the market, making the cleaner fuel also the cheaper fuel. Candidate Donald Trump has promised to re-open the coal mines but has not said who will buy the coal.

The Dakota Access Pipeline issue is not about eminent domain, climate change, or even safety. The bottom line is easier to see and harder to remedy even for people of the utmost good will. The very practical and obvious issue underlying the fight over the DAP is the immorality of taking away from another people the right of self-determination — which includes eminent domain. A subsidiary issue is whether a colonized people can get fairness in a colonial court.

Chattel slavery was the Original Sin of the U.S. and the U.S. has paid and continues to pay a steep price. The Civil War cost more lives than any other conflict in the nation’s history, but the curse continued though the Black Codes, the Jim Crow laws, and the great northern migration that resulted in ghettoized cities.

Why was slavery the Original Sin and not the prodigious amounts of theft and homicide visited upon the peoples using this land when the settlers arrived? There was no United States before the Constitution and that document made the deal with slavery that caused a historical parade of horribles that is ongoing. Indians were simply ignored except for two provisions that assumed separateness.

The Indian Commerce Clause conferred on Congress the power to regulate commerce “with the Indian tribes.” This excludes the states absent a federal delegation of some kind but, more important, is assumes the United States is over here and the Indian tribes are over there.

The other mention of Indians excludes “Indians not taxed” from the population count that apportions Congress. A logical argument could be made that “Indians taxed” might be voters and therefore citizens, but both the practice and the court decisions said otherwise. Even if submitting to taxation could somehow confer citizenship on an Indian (to use the word “naturalize” seems absurd) that would not change the status of Indian tribes.

The United States made treaties with Indian nations until 1871.

The United States made treaties with Indian nations until 1871. You can’t make a treaty with yourself or a political subdivision of yourself.

The Indian nations didn’t get set apart by the scriveners of the Constitution. The Indian nations were apart, and every instance of integration has been unilateral on the part of the settlers. Having made us involuntary citizens, the colonial government is in no position to claim that the Constitution is a social compact to which we are parties.

African-Americans started out with very similar status, and the Constitution managed to protect slavery without uttering the word. The fate of slaves in the apportionment clause was to enhance the representation of their owners by 3/5 of a person. After the Civil War, the former slaves made a belated entry into the Constitution by way of the Thirteenth, Fourteenth, and Fifteenth Amendments.

After the Civil War Amendments, Indians remained outside even when the plain language would have brought them inside. The right to citizenship by birth in the Fourteenth Amendment would seem to make Indian babies born after ratification citizens, but the courts held otherwise.

Indians finally got citizenship not by the birthright in the Fourteenth Amendment but rather by a federal statute in 1924. The law did not require Indians to apply for citizenship or to give up citizenship in their tribal nations. Therefore, once more, there was no assent to be bound by U.S. law.

Legal encounters of the Standing Rock Sioux

The Standing Rock Sioux, opposing a pipeline across their treaty lands that is apparently lawful and constitutional — and if it is not can become so by doing the procedures for approval in a way that recognizes tribal rights — are engaged in a legal encounter of the third kind.

This is not an ordinary application of an ordinary law (first kind) or a claim that the law authorizing the pipeline is unconstitutional (second kind). The Indians do not claim their right to safe drinking water as U.S. citizens. They claim it as human beings, fellow denizens of Mother Earth who have certain inalienable rights based on that fact alone. You know, like Thomas Jefferson said when claiming the colonies had a right to a separate political existence from England?

Most of the Indian nations either never had a war with the U.S. or the war ended with a treaty.

The Indian nations already had a separate political existence from the United States and it was recognized in the Constitution. A law, valid or invalid, never revoked that free and independent existence and it was never extinguished by conquest. Most of the Indian nations either never had a war with the U.S. or the war ended with a treaty that recognized their continuing free and independent status.

A legal encounter of the third kind can be resolved several ways.

1. By application of the customary doctrines called “conflict of laws” if there is a tribunal with the authority and the willingness to hear the case and render a judgment.
2. By mediation, if both parties can agree on an honest broker and that they will abide by the decision.
3. By military force, which is unlikely to prevail against the colonial state that spends more on “defense” than the entire rest of the world combined.
4. By militant nonviolence, refusing to comply with orders that lack moral standing because entered by a process that operates without the consent of the governed. Some say militant nonviolence works by awakening the moral core of the adversary. Others say it works by making oppression more costly in the political sense than freedom.

Any attempt to use military force against the most powerful military in the world would quickly degenerate into terrorism.

Any attempt to use militant nonviolence will cause the government to trot out the label of terrorism for the purpose of moving public opinion and gaining access to law stripped to the barest of procedural niceties.

The stakes are high for the Standing Rock Sioux.

We cannot control what they say but we can control what we do. The stakes are high for the Standing Rock Sioux but they are just as high for all Indian nations that refuse to give up their free and independent status.

It is not up to me to say whether the Standing Rock Sioux and therefore the rest of us have our backs to the wall. My colleague at Indian Country Today Media Network, Peter d’Errico, points out facts that call into question whether we have really exhausted every remedy short of civil disobedience.

Standing Rock is represented by Earthjustice, briefcase warriors for the environment based in Seattle. Good folks out to save the planet, by all accounts. In this case, saving the planet would start with getting a temporary injunction to halt construction of the DAP pending trial.

To get an injunction while the trial is pending, Standing Rock would have to show that if the injunction is not granted they will suffer “irreparable harm” and that it is probable they will prevail on the merits when the case is tried.

When Standing Rock lost its application for preliminary injunction, d’Errico pointed out, the judge only ruled on what he was asked to rule on: whether the project is in violation of the National Historic Preservation Act. Unless the lawyers put something forward at trial more substantial than this law, then this law is all that can be appealed. For obvious reasons, you cannot get a judge reversed for error in not doing something he was never asked to do.

It’s alarming, then, that the Earthjustice lawyers have not touched the real issue in the case, which is who has authority over the Great Sioux Nation’s treaty lands? Keep in mind that those treaty lands have been diminished not by any law, but by what the Court of Indian Claims called “settler encroachment.”

Even if the Earthjustice lawyers think the real issue is the environmental impact of the pipeline, whom would they rather have deciding that issue: the U.S. government or the Standing Rock Sioux tribal government?

The Water Protectors are way out ahead of the people representing them in court.

Meanwhile, the Water Protectors — the people who are putting their bodies in front of the bulldozers and getting hauled off to jail — are way out ahead of the people they think are representing them in court. Some of the Water Protectors may think the issue is the pipeline rather than tribal sovereignty, but most of them understand that the city of Bismarck, facing exactly the same threat (if it’s a threat), was able to send the Black Snake elsewhere.

The good news on the legal front is that another band of the Great Sioux Nation, the Cheyenne River Sioux, have filed a petition to intervene, and they seem to understand this is more about who had authority to decide than it is about what gets decided.

It could very well be that this life-tenured federal judge does not have the huevos to address a legal encounter of the third kind or that he does not have the intellectual firepower to sort though the implications of Indian nations existing outside the social compact embodied in the Constitution he is sworn to preserve. Maybe this is just one judge taking up for another, but I say unless he is asked to grapple with those tough questions it’s not right to criticize him as if he decided them.

Whether the issues get properly addressed in federal court or not, the Standing Rock Sioux have no choice but to stand as sovereign peoples and object to “settler encroachments.” There have been no events since the fish-ins for treaty rights in the Pacific Northwest that have presented descendants of the settlers with such a clear moral choice.

In the African-American struggle, white people who did not wish to take risks or inconvenience themselves could — most of them — claim correctly that their ancestors never owned slaves. Most white people didn’t.

No descendant of the colonists got zero benefit from the theft of Indian land.

No descendant of the colonists got zero benefit from the theft of Indian land and the mass killings. Whether the beneficiaries own up to the direct killings or understand disease to be the major cause, the deaths of the occupants made the land available. American Indians are less than one percent of the U.S. population at this time and they can win nothing by elections and nothing by direct action without allies.

If you can persuade yourself you never benefited from the taking of the Americas, there is still, in this particular fight, climate change understood as a clear and present danger.

It seems to me that if you don’t believe the science of climate change and you don’t believe the history and politics of how the original inhabitants of the Americas came to be so few living on tiny tracts of unproductive land, then all you have to do is remain silent and do nothing. The government will finish the job for you.

If, on the other hand, you wish to live fully in your times and stand with the people on whose bones you have been walking, there is a jail cell in North Dakota with your name on it. If you can’t answer the bell that way, you can send bail money or supplies to the Sacred Stones Camp.

Lots of people carried the Civil Rights Movement who never went to Selma. Lots of people will carry this struggle on without ever seeing the Cannonball River.

I do not know when ignorance becomes so egregious that only a racist could cling to it, but I do know that the usual canards are being raised as more and more tribes back up the Standing Rock Sioux. It is not terribly hard for anyone who really cares about the truth to establish:

• Indians do have to pay taxes.
• Indians do not get regular checks from the government.
• Most tribes do not have casinos.
• Most tribes that do have casinos do not pay per capita payments to all tribal citizens.

On the other hand, you may have heard that unemployment on some reservations exceeds 80 percent, that Indians have extremely high rates of alcoholism and suicide, and they are the least successful ethnicity in education at all levels. Those things are true.

If you can look at how people live on Indian reservations and read the history of how that came to be and then look me in the eye and tell me my DNA is coded for failure, I will do my very best not to react violently but do not expect me to endorse your racist hogwash.

Legal encounters of the third kind are rare, and involving yourself is difficult. The fight against Jim Crow was not easy. The fight against apartheid was not easy. I can’t claim supporting the Standing Rock Sioux is easy. Only that it’s right. If that jail cell is more than you can handle, go here to find something you can handle.

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Also see “Two wars for the American West” by Steve Russell on The Rag Blog.

Read more articles by Steve Russell on The Rag Blog.

[Steve Russell lives in Sun City, Texas, near Austin. He is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. Russell, who belongs to the Cherokee Nation of Oklahoma, is also a columnist for Indian Country Today Media Network. Steve was an activist in Austin in the sixties and seventies, and wrote for Austin’s underground paper, The Rag. He can be reached at swrussel@indiana.edu. ]