Still Standing

In the Standing Rock Sioux Tribe’s case against the Dakota Access Pipeline, youth activism and legal advocacy work hand-in-hand in the fight for justice.

A group of protestors march on a road. In front, leading the group is Catcher Cuts The Rope. He is wearing a camouflage print jacket, a feather headdress, and carrying a swagger stick. To the right, other protestors are holding up a flag of the Unites Sta
Catcher Cuts The Rope, an Iraq War veteran, leads a protest march to a sacred burial ground at the Standing Rock Indian Reservation in North Dakota on Sept. 9, 2016. (Alyssa Schukar / New York Times via Redux)

Update: In April 2021, representatives from the Biden administration’s U.S. Army Corps of Engineers indicated that the agency will not shutter the Dakota Access Pipeline, despite the ongoing threats it poses to the Standing Rock Sioux Tribe and the fact that it is operating without a federal permit. The Corps is conducting an environmental and safety review. Once this review is complete (expected early next year), the agency will determine whether the pipeline is safe to operate or must be permanently shut down.
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After years of legal battle and a historic grassroots resistance, the Standing Rock Sioux Tribe have achieved a long-sought victory.

In July, a federal judge struck down permits for the controversial Dakota Access pipeline, and ordered the U.S. Army Corps of Engineers to review the project’s environmental impacts.

The Standing Rock Sioux Tribe has long feared the catastrophic threat of a spill from the pipeline, which crosses the Missouri River within a mile of the Tribe’s reservation in South Dakota. Protests against the project in 2016 drew hundreds of thousands of people to the river’s banks and fueled a global movement for Indigenous sovereignty.

The youth-led protest was only one part of the Tribe’s fight to protect its homeland from an exploitative government system. During the height of the water protectors’ resistance and long afterward, the Tribe persisted in a quieter, years-long court battle to stop the pipeline and obtain a fair environmental review. Victory was never certain, and at times seemed unlikely.

But for the Tribe, backing down has never been an option.

It all started with a prayer ceremony.

In a room packed with families, youths, and tribal elders, patience was wearing thin. It was April 2016. After a year of empty “consultations,” the U.S. government was signaling to the Standing Rock Sioux Tribe that it would approve the plan to run the Dakota Access oil pipeline beneath the Missouri River, just upstream from the Standing Rock reservation that crosses North and South Dakota. Now the tribal members had to weigh their remaining options for defending their drinking water and homeland from potentially irreversible contamination.

Dave Archambault, who was chair of the Standing Rock Sioux during that tumultuous year, remembers the overwhelming sense of frustration permeating that meeting.

“People felt that it wasn’t enough,” says Archambault. “At the meeting, a medicine man asked the spirits how we could stop this pipeline. The spirits said: With prayer and with peace, the pipeline can be stopped; but with any form of violence, the pipeline would go under the river.”

Channeling that spiritual call to action, a group of Sioux teenagers traveled to where the pipeline was slated to cross the river. Snow covered the ground as they pitched their teepees and tents. Resilient against the biting, wintry South Dakota wind, the youth established the camps to protest an industry bent on silencing Native voices.

That spirit camp, called Sacred Stone, eventually grew into multiple camps and spawned a global movement in support of Indigenous rights, inspiring thousands to descend on Standing Rock. A generation of young, mostly Native activists found new ways to organize, fueling parallel movements around the world.

The Standing Rock story illustrates how different forms of opposition can achieve necessary change, both in the minds of the public and in the halls of justice.

The same month the Sioux youths pitched their tents, Earthjustice attorney Jan Hasselman made his first visit to the reservation headquarters in Fort Yates, North Dakota. The Tribe’s elders had reached out to discuss whether Earthjustice could help them fight the pipeline, which few outside of the Tribe had heard of.

The Standing Rock Sioux’s choice to enter a legal battle was not without misgivings. U.S. courts have a long history of providing legal cover for the government to dispossess tribes of their rights. The Tribe needed a legal firm they could trust.

“We needed to make sure we were aligned,” Archambault says. “We decided that if Earthjustice is fighting for Mother Earth, those are our values; and Earthjustice said, ‘If they’re protecting their land for future generations, that’s also protecting Mother Earth.’ That was when we knew we could be partners in this battle.”

A key basis of the Tribe’s case is that the government is required to conduct an environmental analysis, and consult with tribal governments, when an infrastructure project — such as a pipeline or an interstate highway — could endanger a tribe’s health or sovereign land. The government rushed approval of the Dakota Access Pipeline (DAPL) without fully conducting that analysis.

“We saw a draft environmental analysis in 2015 that completely ignored the Standing Rock Sioux Tribe,” recalls Archambault. “It was as if we didn’t exist.” A map of the proposed crossing site did not even have the Tribe’s reservation identified.

A Tribal staff member took Hasselman on a tour of the proposed route, and he got his first look at the treeless, windswept landscape at the confluence of the Cannonball and Missouri rivers. As the lawyer and the Tribe met to formulate legal strategy, none of them dreamed that barely six months later the same site would capture the world’s attention.

Over the summer of 2016, the Tribe carried out a two-pronged approach of legal and grassroots resistance. In July, the Tribe, represented by Earthjustice, sued the U.S. Army Corps in response to its hasty approval of the pipeline’s water permits without full environmental and cultural reviews involving the Tribe.

At the same time, the camps along the Missouri River entered a new phase — one that would forever change the lives of its inhabitants.

“From the beginning, it was known that it was a youth-led movement,” says Terrell IronShell, a member of the Oglala Lakota Tribe. At the start of the protest, he and a small group of Native youths formed the International Indigenous Youth Council. Their leadership ushered the camps through trials and triumphs that tribal elders often compared to the Native defenders at Wounded Knee 1973.

When IronShell first arrived in early August, the spirit camp was still sparse. Tall, wet grass slithered over his knees as he waded through empty fields. Wary of crowds, he set up his tent on a patch of grass far removed from the main gathering area, nestled near the horse pen.

By week’s end, that same field was covered with tents. As a group of Native youths ran from North Dakota to Washington, D.C., to deliver a petition to the Army Corp’s headquarters, Dakota Access brazenly started construction, even before all the permits had been received. Hundreds of Native activists who had heard about the run traveled to Standing Rock.

Over 300 tribes were represented at the camps, including some that made their living from oil drilling or coal mining. Longtime adversaries put aside differences to draw attention to the U.S. government’s centuries-long practice of exploiting Native land. They were joined by Indigenous people from around the globe.

“So many of us came from Tribes that historically didn’t get along,” says IronShell. “We built our relationships with each other and felt stronger for it. We found unity among Indian movements around the country.”

Each morning, before the sun rose over the teepees, the camp was awakened by the booming call of veteran Oglala Lakota activist Guy Dull Knife. IronShell, who practices the Lakota ceremony of sun dancing, would make his way to the camp’s sacred fire to dance, pray, and smoke a ceremonial pipe with other sun dancers as daylight broke.

Afterward, IronShell and the youth council would spend the day circulating around camp. Their community-organizing skills were in constant demand: coordinating truckloads of donations, crafting press releases, and leading group trainings on nonviolent action, like road blockades and silent prayer sit-ins.

In the evenings, people would sit around their campfires, singing songs, telling stories, and praying to their ancestors.

“The bonds I made with the people at that camp are lifelong,” says IronShell. “They’re my family now.”

By the fall of 2016, the camps had swelled to 10,000 inhabitants. Non-Native people came in solidarity, including human-rights activists, journalists, Hollywood stars, politicians, and veterans who saw defending the rights of Indigenous people as a way to atone for the abuses of the U.S. military.

Behind the major media story at the camps was the Tribe’s continuing legal battle. After a series of hearings, the judge denied the Tribe’s request to halt construction of the pipeline. Yet the enormous pressure from the camps and the Tribe’s administrative advocacy began to affect the case: Minutes after the judge’s ruling, the Obama administration signaled a change of heart and put the permits on hold.

“Every infrastructure project the Sioux has ever faced changed the way we lived,” says Archambault. “The government says, ‘This is in the best interest of the nation’ — but they never give us an opportunity to say if we believe this is good for our nation.”

For a brief but beautiful moment, the grassroots power generated by the Standing Rock spirit camps turned the tide in favor of the Tribe. In December of 2016, during the waning weeks of the Obama administration, the Army Corps effectively denied DAPL’s water permits and kicked off the environmental review that the Tribe was seeking.

Tribal leaders, veterans, and activists celebrated, hailing the decision as a watershed moment for tribal sovereignty. Archambault asked the inhabitants of the spirit camp to return home and to keep pressure on their elected representatives. The camps began to empty.

Then, a new administration took over. Within days of taking office, President Trump walked back Obama’s order and directed the Corps to issue DAPL’S permits.

In the three years that followed, Earthjustice represented the Standing Rock Sioux through a complicated period of victories and setbacks. A federal judge eventually ruled that the administration had acted illegally and ordered the Army Corps to reassess why the permits should be authorized without a full environmental review. Yet the ruling was bittersweet: The court later declined to halt the pipeline’s operations (which had commenced only a few weeks earlier) while the new review was conducted.

Since its completion, the Dakota Access Pipeline has moved 600,000 barrels of crude oil a day within hailing distance of the reservation. Yet despite failing to stop the pipeline’s construction, the Standing Rock Tribal Council has voted unanimously every year since to continue the fight.

“As long as there’s a pipeline under the Missouri River, there’s a threat,” Archambault says. “Even if we were to win, there’s a threat to the children who are not even born yet that waits underneath that river.”

When the Army Corps unsurprisingly concluded in 2018 — after a year of review — that it had lawfully issued the permits, Earthjustice challenged it in a last push for justice. The final path forward would hinge on whether a judge agreed with the Tribe — or took the Army Corps at its word.

As the final hearing approached in March of this year, Hasselman was ready. The legal team had worked with the Tribe and its technical advisors for months to form an airtight case, offering pages of citations from independent environmental experts proving DAPL’s potential for an oil leak with disastrous impact on the Tribe.

What Hasselman did not anticipate was the COVID-19 pandemic.

“It became obvious that I really should not be flying across the country,” says Hasselman, who is based in Seattle. As air travel became too risky, Hasselman cancelled his trip to the court in D.C. and requested that the hearing be held via teleconference.

By phone, Hasselman argued that the Army Corps never fully assessed the imminent danger to the Tribe should the pipeline rupture. Despite not being able to see the judge’s body language, Hasselman found ways to make the virtual accommodation work: Surrounded by fact sheets and regulatory citations taped to the wall of his home office, Hasselman had everything he needed to answer the judge’s questions.

Exactly one week later, the court issued a sweeping decision: The pipeline’s permits were illegal. The judge ordered the Army Corps to start the process over and conduct the full environmental review that the Tribe had sought since the pipeline’s conception. In a follow-up ruling, an appeals court upheld the decision, so that the pipeline is now effectively operating illegally. While the issue of temporarily stopping the pipeline will be resolved with further court proceedings, the ultimate decision on shuttering DAPL for good won’t be made until after the November 2020 election.

Four years after the Sioux youth staked their tents, the case against DAPL is entering its final stages.

For the Tribe, the victory validates the sacrifices they made to continue this fight. The current chairman of the Standing Rock Sioux, Mike Faith, expressed hope that this time the government would heed the wisdom of the Tribes.

“After years of commitment to defending our water and earth, we welcome this news of a significant legal win,” he said. “It’s humbling to see how actions we took four years ago to defend our ancestral homeland continue to inspire national conversations about how our choices affect this planet.”

The seeds of grassroots action planted at the spirit camps continue to grow. Indigenous-led movements inspired by Standing Rock are fighting environmentally destructive projects in New Mexico, Washington, Arizona, Alaska, Canada, and elsewhere. Today, the International Indigenous Youth Council operates in seven states, advocating for Indigenous sovereign rights at the local level.

After leaving the spirit camp in 2017, Terrell IronShell led trainings in nonviolent direct action across the country. At home in Rapid City, South Dakota, his community is resisting uranium and gold mining that threaten the city’s drinking water. Now, after time in Canada helping Indigenous communities mobilize against transcontinental pipelines, IronShell is rejoining the fight against the Keystone XL pipeline, which began construction this year.

“There were a lot of things that happened, and all we had was each other,” he says, reflecting on Standing Rock. “We made each other strong.”

Earthjustice’s Northwest Regional Office has been at the forefront of many of the most significant legal decisions safeguarding the Pacific Northwest’s imperiled species, ancient forests, and waterways. Learn more.

Jan Hasselman, a senior attorney in the Northwest Regonal Office, joined Earthjustice in 1998. His legal docket covers a number of regional and national issues including listings of salmon under the Endangered Species Act, stormwater pollution, coal fired power plants, and coal and crude oil terminals. @JanHasselman

Alison Cagle tells the stories of the earth: the systems that govern it, the ripple effects of those systems, and the people who are fighting to change them — to protect our planet and all its inhabitants.

Originally published on Jun. 22, 2020. Updated with the Jul. 6, 2020, court ruling to shut down the pipeline.

Earthjustice represented the Standing Rock Sioux Tribe in litigation against the Dakota Access Pipeline from 2016 to 2022.