Can human rights be exercised in Native American communities?

Last June 24, 2019, the University of Arizona Rogers College of Law, Indigenous Peoples Law and Policy Program on behalf of the Water Protector Legal Collective, made public the report “Criminalization of Human Rights Defenders of Indigenous Peoples Resisting Extractive Industries in the United States” summarizing reports, complaints and denunciations filed with the Inter-American Commission on Human Rights (IACHR).

During the IACHR session, the leaders of the Tribes affected by the transit of the Dakota Access Pipeline presented testimonies, evidence and complaints of systemic human rights violations by the U.S. State. The U.S. government itself appeared at the session and explicitly acknowledged that the allegations were real.

The IACHR’s main concerns focused on the legislative processes in the U.S. to criminalize social protest, the lack of protection measures for human rights defenders, and the lack of legal protection for Native American communities in their territorial rights and right to be consulted.

The Case of the Dakota Access Pipeline (DAPL)

Native American First Nations in U.S. territory generally live under conditions of extremely high cultural, political, legal, economic and social segregation. Authentic apartheid ghettos where the Constitution, civil rights, democracy and justice are distant illusions or very difficult to achieve. Legal conditions, including court rulings, qualify legal rights as unenforceable for those who belong to Native American communities and who live in territories “protected” by one of the Treaties signed with the Federal Government.

Pipeline Spills, Source: Pipeline and Hazardous Materials Safety Administration (PHMSA)
Pipeline Spills, Source: Pipeline and Hazardous Materials Safety Administration (PHMSA)

Now it is not even necessary for the land to be productive in order to dispossess them again. Now there are land expropriations, because oil pipelines are going to pass through there, as when the railroads or highways were built.

Oil pipelines are not only one of the least efficient and most accident-prone engineering infrastructures in the history of mankind[1], they expand a wave of exponential environmental risks. Under the legal figure of Eminent Domain, it is legal to seize or expropriate communal lands in order to install pipelines.[2] The oil pipelines are also a major threat to the environment.

As it is, it is a problem to be a U.S. Citizen – Native American, because your rights are practically nullified by bureaucratic determinations. When a community, in this case the Great Sioux Nation or Oceti Šakowiŋ, whose territory is formally recognized in the Laramie Treaty of 1851 with the United States government, decided to assert the letter of the Treaties that give reason for territorial possession and peace with this country; the U.S. Army Corps of Engineers, a minor bureaucratic agency of the Federal Government, decided without any process of consultation, that the design of the DAPL by a corporation private (Energy Transfer Partners), with private revenues, and a private oil pipeline construction project for private oil extraction and transfer was legal to assert Eminent Domain[3] (legal instrument used in public good) and take the Oceti Šakowiŋ lands.

Accidents in oil pipelines, Source: Pipeline and Hazardous Materials Safety Administration (PHMSA)
Accidents in oil pipelines, Source: Pipeline and Hazardous Materials Safety Administration (PHMSA)

The U.S. Army Corps of Engineers violated Section 106 of the National Historic Preservation Act and other federal laws and policies, and the agency issued the permits in the absence of meaningful consultation and without the free, prior, and informed consent of the affected Standing Rock Sioux, Yankton Sioux, and Cheyenne River Sioux tribes.

In addition to the multiple institutional violations, the corporate Energy Transfer Partners hired an illegal security company, TigerSwan[4], to provide security for the illicit work of installing the private pipeline. Standing Rock tribal officials informed the federal government and Dakota Access construction managers that construction of the proposed pipeline was in direct conflict with traditional sacred areas and burial grounds, that was on September 2, 2016, the next day, Energy Transfer and TigerSwan personnel bulldozed ancestral burial sites, amid an indiscriminate dog and gas attack on the Standing Rock Sioux people, who were injured, all in the face of a silent local police presence.

The escalation of violence against the unarmed community of the Standing Rock Sioux Tribe was reinforced by the involvement of the National Guard, federal, state and neighboring county police. Military weaponry, surface-to-surfacemissile launchers, heavy equipment, gases, chemical weapons, indiscriminate use of high-pressure pumping hoses in freezing temperatures, and thousands of troops were deployed and used to violently repress those claiming the legal right to remain and protect their land.

They were detained massively and inhumanely in dog cages. The type of weaponry used, such as rubber bullets, gas grenades, when used inappropriately or maliciously, can be lethal or cause irreparable damage to the victims. Several villagers have irreparable injuries.

In this context, 841 protectors of water, land and Sioux territory were detained, many of them illegally by the private company TigerSwan, who in an open act of police impersonation assaulted, tortured and detained dozens of Native American settlers out of court.

Toughening and criminalization of social protests

As the Report to the Inter-American Commission on Human Rights denounces, there is a sustained process at the national level to toughen prison sentences and state and federal legislative processes to establish an escalation of new laws, including unconstitutional ones – as the ACLU has denounced.In South Dakota, there is a new legislation that incorporates the legal figure of “riot boosting” as an unconstitutional criminal offense, because it speaks of activities prior to a protest, calls, acts of solidarity, and the simple participation in a protest, without incidents, blockades, or interruptions of any pipeline, can be considered “riot boosting”.

ACLU denounces: “Over the past two years, we have seen an increase in government efforts to stifle protests, particularly those led by indigenous and environmental activists, often in opposition to pipelines. There have been attempts to equate protesters with domestic terrorists and saboteurs. Police authorities have partnered with private security companies to monitor activists and control protests. Known FBI informants have infiltrated activist spaces and camps. The federal government has implemented “no-fly zones” to block media coverage during intense police crackdowns.”

Special Session of the Inter-American Commission on Human Rights[5]

The U.S. boasts stronger constitutional protections for free speech and assembly rights within its borders than virtually anywhere else in the world. “This reputation may soon change,” said Commissioner Margarette May Macaulay of the Inter-American Commission on Human Rights, during a hearing on the rights to freedom of association, expression and peaceful assembly in the United States: “We are concerned about what has been happening lately…. There is a regression in these pillars of democracy…from the highest levels of power.”

Indeed, this country has embarked on a path towards the criminalization of the defense of the environment, water, land and territories by First Nations communities. On June 3, 2019, the Trump administration announced that it would seek to amend current legislation that prescribes a maximum penalty of 20 years in prison for damaging or destroying existing pipelines. The amendment would apply the same penalty to pipelines under construction, as well as to pipeline disruption.

This federal action follows an alarming trend by 35 state legislatures that have proposed approximately 100 bills against social protest, 14 of which have become law, 26 are pending, and 58 that have expired or been defeated. The bills generally impose a draconian regime and disproportionate punishments for nonviolent civil disobedience, including up to 10 years in prison and $100,000 in fines.

Some bills criminalize organizations that “help” protesters to take responsibility for the actions of their members. The state of North Dakota, where DAPL is located, went so far as to introduce a bill (it did not pass) that would eliminate civil and criminal liability for drivers who encountered protesters blocking public roads. Permission to run over protesting pedestrians!

The Inter-American Commission on Human Rights has identified indigenous peoples as particularly vulnerable human rights defenders and described the duties of states to protect human rights in the context of extractive industry development.

The U.S. government has acknowledged in the IACHR Thematic Hearing, related to the situation of HR in its territory, that, its duty was to consult with tribes under federal statutes, 135 executive orders, 136 treaties, and agency or department regulations and policies. However, many of these laws and policies are interpreted as procedural, and therefore DO NOT GRANT ENFORCABLE RIGHTS IN COURTS, AS THEY ARE NOT LEGALLY BINDING WITH APPLICABLE LAW. In other words, the legal framework for the protection of U.S. First Nations is, in fact, non-existent.

As noted in the Report to the Inter-American Commission on Human Rights, prepared by the University of Arizona Rogers College of Law, Indigenous Peoples Law and Policy Program on behalf of the Water Protector Legal Collective[6], the Standing Rock case is an emblematic case of indigenous resistance to extractive industry that drew worldwide attention when water protectors convened on the banks of the Missouri River in a peaceful gathering in what was the largest gathering of indigenous peoples in the United States in 100 years. There, human rights violations, the denial of the legality that gives reason to exist to the territorial possession of the tribes of the first Native American nations, and now a legality is being built with even more exclusion and repression of the defense of the environment, water, land, territory and culture that gave rise to this country, have become more acute and extreme.


[2] In the last 20 years there have been 11,992 pipeline spills in the United States, with economic losses of at least $8,309,015,801.00 according to the Pipeline and Hazardous Materials Safety Administration (PHMSA) Report of the U.S. Department of Transportation. Accidents and image

[3] The right of a government or its agent to expropriate private property for public use, with payment of compensation. “The Supreme Court held that the general benefits a community would enjoy from the promotion of economic development are sufficient to qualify as a “public use.””

[4] TigerSwan was hired (without meeting the legal requirements to exist in those states) to execute an “information operations campaign” that included inspecting, infiltrating, sowing divisions within and attempting to discredit the growing anti-DAPL movement and falsely portraying water protectors as dangerous and violent. “worked closely with local police, providing surveillance information and even infiltrating the camp. They were present at the police Joint Operations Command Center, assisted prosecutors in building cases against water protectors, and reportedly reportedly directed police on occasion.”

[5] Criminalization of human rights defenders of indigenous peoples and the extractive industry in the United States. Participants: State of the United States, Center for Constitutional Rights (CCR), American Civil Liberties Union Foundation (ACLU), Global Witness, American Indian Law Clinic University of Colorado Law School , International Indian Treaty Council, Food & Water Watch,, Americans for Indian Opportunity (U.S.), AIM-West (American Indian Movement), Albuquerque Center for Peace and Justice (U.S.), Albuquerque Center for Peace and Justice (U.S.), American Indian Law Alliance (U.S.), Arbeitskreis Indianer Nordamerikas (AKIN) , BankTrack , Bismarck-Mandan Unitarian Universalist Congregation (U.S.), Business & Human Rights Resource Centre, California Native Vote Project (U.S.), Carrizo, Comecrudo Tribe of Texas, Climate Defense Project, Continental Network of Indigenous Women of the Americas (North Region), Divest, Invest, Protect (U.S.), Divest L.A, Dooda (NO) Desert Rock, Earthcare, Fair Trials (Americas), First Peoples Investment Engagement Program, Fundacion Semilla Warunkwa (FUNSEWA), Honor the Earth, Hunkapi ONLUS Association , INCOMINDIOS, Indigenous Rights Center, International Association of Democratic Lawyers (IADL), Law Union of British Columbia (Canada) Lipan Apache Women’s Defense, Mazaska Talks, Minnesota Unitarian Universalist Social Justice, NDN Collective (U.S.), New Energy Economy (U.S.), North Dakota Human Rights Coalition (U.S.), Climate Change Iwi Leadership Group -National Iwi Chairs Forum, National Lawyers Guild International Committee, Native American Community Academy, NACA-inspired Schools Network (U.S.), Pascua Yaqui Tribe, Public Bank L.A, Rainforest Action Network , Red Nation Coalition, Rio Yaqui Pueblos, Santa Feans for Justice in Palestine, Securing Economic and Energy Democracy) of Southwest New Mexico (SEEDs), Seventh Generation Fund for Indigenous Peoples, Sixth World Solutions, Society for Threatened Peoples (Switzerland), Southwest Native Cultures (U.S.), Tewa Women United, Urgewald, S. Human Rights Network, We CopWatch, Women’s Earth and Climate Action Network (WECAN), O’odham Voice Against the Wall. Countries: United States. Topics: Rights of Indigenous Peoples, Economic, Social and Cultural Rights, Human Rights Defenders, Environment. 172 Period of Sessions; Date: Thursday, May 9, 2019

[6] Report to the Inter-American Commission on Human Rights.