Standing Firm

In The Dakotas, An Oil Pipeline Runs Up Against What Native Americans Believe Is Sacred Space

To Native Americans, land can have a religiously sacred meaning. But despite their many years of using land for religious ceremonies, Native Americans’ access to it has often been tossed aside when the government has other goals in mind.

So when the U.S. Army Corps of Engineers announced Dec. 4 that it would seek alternative routes for the construction of part of the 1,200-mile Dakota Access Pipeline (DAPL) project, Standing Rock Sioux tribe members and thousands of indigenous rights activists, many of whom prefer to be called “water protectors,” cautiously celebrated what they hoped would be a lasting victory after a two-year struggle.

“The indigenous-led movement to ‘defend the sacred’ and ‘protect the water’ at Standing Rock was never considered a protest. We call ourselves ‘water protectors,’” Steve Pavey, an activist and photographer who was at the site in October, told Church & State. “‘Protest,’ as it is captured by mainstream media and government, skews realities on the ground by portraying water protectors as violent and law-breaking trouble-makers. So Standing Rock is much more about what we all had come together to stand together to protect, rather than protest.

“We were there to protect water, natural resources, the environment, indigenous people, indigenous ways of life and ultimately, our humanity,” he continued.

A Texas-based firm, Energy Transfer Partners, was to construct a crucial part of the oil pipeline stretching from a large oil field in North Dakota and Montana to Illinois. The company asserted that the pipeline would spur economic development in the area and be safer than transporting oil by trains.

But problems arose because the pipeline would run near the Standing Rock Indian Reservation, the sixth-largest Native American enclave in the country. The reservation is located in North Dakota and South Dakota, where the Standing Rock Sioux tribe, consisting of Hunkpapa Lakota, Sihasapa Lakota and Yanktonai Dakota, reside.

Native Americans argued that this pipeline, which was not planned to be directly on the reservation but would affect it, would poison their  water, and that the pipeline would thereby infringe their religious freedom. Protecting their reservations is essential to Natives’ religious, economic, cultural and social identities and well-being, they asserted.

“I’m from the Cannonball River and the Missouri River, I grew up there. And so this proposed pipeline would be outside my door, I would see it every day,” Ladonna Bravebull Allard, a member of the Sacred Stone Camp in North Dakota, said, according to the Camp’s website. “We’re asking for respect for our homelands. We must protect our water because water is life, and we have a right to live.”

 Water is religiously significant for North Dakotan tribes. Their prayers, for example, often prioritize water and nature. One Lakota prayer, “mni wiconi mni wicosini,” translates to “water of life, water of health.”

During their two-year journey as water protectors, which garnered national attention in 2016, drew thousands of supporters to Standing Rock and sparked demonstrations in several U.S. cities, tribal leaders charged that government officials were insensitive to Native Americans’ beliefs and practices.  

Arvol Looking Horse, the Lakota spiritual leader who led a prayer with President Barack Obama when Oba­ma visited Standing Rock in 2014, told PBS that when police raided his prayer circle’s space this year, they took sacred items. 

“They took their c’anupas (ceremonial pipes) and their prayer offerings,” Looking Horse said. “They called our prayer sticks weapons.”

“For us, it’s the freedom of religion,” Ben Rhodd, a Lakota elder who was among those in his prayer circle to be arrested, told PBS. “Constitutional rights are being violated here.”

Throughout the two years of opposing DAPL’s construction, more incidents such as the one Looking Horse experienced occurred, and water protectors were on the receiving end of tear-gas, rubber bullets and concussion grenades. (Some security guards hired to patrol the construction site have claimed they’ve been assaulted by anti-pipeline activists.)

Native Americans asserted that on Sept. 3, DAPL workers destroyed ancestral gravesites as activists monitoring the site watched and prayed. More recently, anti-pipeline activists were sprayed with water cannons despite the cold weather. Approximately 400 of them were arrested, but their persistence to protect what they perceived as sacred water and human rights remained intact.

“Standing Rock is much more than organizing to protect the water from the threat of the Dakota Access Pipeline,” Pavey said. “It is part of a larger movement struggle for justice and liberation that requires us to face our U.S. history that is also our present moment of settler colonialism. This system requires violence to maintain: violence against people, land and our environment.”  

Beyond the fate of the pipeline, observers say the clash in the Dakotas highlights an issue that has long simmered in American legal and religious history: the right of Native people to engage in their traditional spiritual practices.

“In the long, ugly history of persecution, exploitation, broken treaties, unkept promises and adverse court decisions, the victory at Standing Rock is a rare win for Native American religious freedom,” Charles C. Haynes, vice president of the Newseum Institute and founding director of the Religious Freedom Center, wrote in a Dec. 21 column on the Newseum’s website.

Haynes noted that Native American sacred spaces have been “at various times in our history, debased, mocked, bulldozed or completely ignored by government officials and courts.”

Indeed, the United States has a history of insensitivity toward certain Native American sacred practices and traditions. During the late 19th century, when Natives often clashed with white settlers who forcibly took their lands, some Indian religious practices were considered so threatening they were banned.

At different points in history, government officials promoted “Christianizing” American Indians as a way of pacifying them. Native American children were often removed from their homes and sent to schools where their traditional languages and practices were erased.

Although federal law now provides some accommodations for Native American religious practices, such as possession of eagle feathers, the Supreme Court has not been especially sympathetic to Native religious freedom claims concerning land. But the situation is not as clear as it may seem at first glance: In some cases, requests made by Native American groups have been considered too broad or have attempted to exert a measure of control over land that the tribes don’t own.

A crucial ruling came in 1988, when the high court ruled 5-3 that the U.S. Forest Service could proceed with a plan to build a road through the Six Rivers National Forest in northern California over objections lodged by several tribes.

Members of tribes in the area asserted that the road would damage Chimney Rock, a site they consider sacred. The Supreme Court ruled against the Indians, holding in part the government had the right to use its land as it saw fit.

Writing for the majority in Lyng v. Northwest Indian Cemetery Protective Association, Justice Sandra Day O’Con­nor acknowledged that construction of the road could create  “extremely grave” injury to Native Am­erican religious practices but es­­­­sentially said there was no constitutional remedy for that.

“However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires,” O’Connor observed.

Justice William Brennan, writing in dissent, asserted, “I find it difficult … to imagine conduct more insensitive to religious needs than the Government’s determination to build a marginally useful road in the face of uncontradicted evidence that the road will render the practice of respondents’ religion impossible.”

Given the Lyng decision, Standing Rock Sioux tribal members didn’t include religious-freedom claims in their lawsuit against the Army Corps, Standing Rock Sioux Tribe v. United States Army Corps of Engineers. Instead, tribe members argued that the Army Corps of Engineers violated the National Historic Protection Act and National Environmental Policy Act by failing to consult with them about the religious and environmental impact that DAPL would have on Standing Rock before it issued permits that greenlighted the pipeline’s construction through the area, even though this kind of consultation is required by the National Historic Protection Act and National Environmental Policy Act.

Although it was not originally included in their lawsuit, tribe members might also be able to rely on the Religious Freedom Restoration Act (RFRA), a statute that protects religious exercise to a greater extent than the Supreme Court’s interpretation of the U.S. Constitution does. RFRA prohibits the government from substantially burdening the exercise of religion unless it is pursuing a com­­pelling interest through the least restrictive means available. 

The Supreme Court in 2014’s Burwell v. Hobby Lobby Stores interpreted RFRA to give religiously controlled for-profit employers an exemption from federal regulations requiring coverage for contraceptives to be included in employer-provided health-insurance plans. It’s an open question whether this decision will make it easier for Native Americans to use RFRA to battle government-backed construction projects in situations such as Lyng and here. (Americans United disagrees with the way the high court interpreted RFRA in the Hobby Lobby decision.)

To many in the Western world, a sacred space means a house of worship, not land and water. But since houses of worship are privately owned buildings, while much of the land in dispute in the Dakotas is owned by the government, little equi­valency can be made.

Competing claims on how best to use federal land complicate the question. Pipeline advocates have argued that the country’s energy needs must be taken into consideration. The challenge, then, is to find a way to balance needs and rights that may be in conflict.

With federal infrastructure currently considered a bipartisan issue, some activists argued that lawmakers on both sides should not ignore the religious freedom rights of Native Americans. 

In this case, pipeline foes argue that Congress didn’t make it easy for them to be heard. And although Obama made what was considered a historic visit to Standing Rock in 2014 to attend an annual Cannon Ball Flag Day Celebration, he didn’t take a stance on the activists’ demands in 2016, when the issue picked up steam nationwide.

“We’re going to let it play out for several more weeks and determine whether or not this can be resolved in a way that I think is properly attentive to the traditions of the first Americans,” Obama told “Now This,” a news site, in a Nov. 1 interview.

Now with the new Congress in session and President Donald J. Trump in power, the situation at Standing Rock may become even more complicated.

Sen. Heidi Heitkamp (D-N.D.), a member of the Senate Indian Affairs Committee, told CNBC on Dec. 5 that people who are still at Standing Rock should go home because their long-term fight against DAPL is “not winnable.” 

“When you look at it, we know one thing for sure: When the administration changes, the easement is going to be approved,” Heitkamp said.

Trump has not directly addressed the issue, although he has expressed support for the pipeline. One of his spokesmen, Jason Miller, didn’t give the Native Americans cause for hope when he stated that although Trump has not made a decision yet, he supports a pipeline route through Standing Rock.

Native American activists and their allies are prepared to continue the resistance. 

“There was no DAPL win in terms of answering the prayers of Native Americans at Standing Rock, as one Native elder told me,” Pavey said. “It was a small victory in a larger battle to protect humanity and the world we live in. President Obama’s administration merely kicked the DAPL can down the road with a large knot to untie, as many Native Americans told me at Standing Rock.”

As there has been no formal ruling made by the U.S. government to stop DAPL from going through Standing Rock, Pavey said the process of determining the environmental assessment that will examine alternative routes to building the pipeline could take months.

“The indigenous-led movement to protect the water, land and treaty agreements at Standing Rock is not over,” Pavey said. “And not only is it not over at Standing Rock, this movement to ‘defend the sacred’ has grown to imagine a movement of justice and liberation to protect humanity and her environment everywhere. This was and is a movement grounded in prayer, and this religious freedom cannot and will not be limited to treaty lands.”