The Supreme Court ruling on Oklahoma was welcome, but Indigenous people deserve more

To realize a complete vision of Indigenous sovereignty and environmental justice takes people power.
A man faces a row of police as activists and members of different tribes from the region block the road to Mount Rushmore National Monument in Keystone, S.D., on July 3, 2020.
A man faces a row of police as activists and members of different tribes from the region block the road to Mount Rushmore National Monument in Keystone, S.D., on July 3.Andrew Caballero-Reynolds / AFP - Getty Images
Get the Think newsletter.
SUBSCRIBE
By Nick Estes, assistant professor of American Studies at the University of New Mexico

The U.S. legal system from the Supreme Court on down delivered a suite of rulings over the past week that have reaffirmed Indigenous land rights and environmental protections. From the Virginias to the Dakotas, they pushed back on the industrial development that would have further imperiled tribal lands and the environment.

On Thursday, the Supreme Court ruled that 3 million acres of eastern Oklahoma — including most of Tulsa — remain American Indian reservation land. Last Monday, the court also denied a Trump administration request to allow the construction of the long-delayed northern leg of the Keystone XL Pipeline, which would carry slurry crude from the Alberta tar sands to Nebraska.

The recent Dakota pipeline decision is a part of a broader movement for decolonization that seeks to restore land to Indigenous people.

On the same day, a federal judge ordered that oil must stop flowing through the Dakota Access Pipeline, which runs from North Dakota to Illinois, by Aug. 5. And the day before, two of the United States' largest utility companies — Duke Energy and Dominion Energy — announced that, because of pending lawsuits from environmentalists, they had canceled the Atlantic Coast Pipeline, which would have transported natural gas from Virginia to North Carolina.

These are welcome legal victories. But taken together, they only serve to highlight that Indigenous people can't merely rely on the courts of the conqueror. Because courts can only protect our land, not expand it, much more is needed. To realize a complete vision of Indigenous sovereignty and environmental justice takes people power — the kind that energized the 2016 Standing Rock protests against the Dakota Access Pipeline but that in fact goes back much further.

For the courts can't even always protect our land. Back in 1980, the Supreme Court ruled that the Black Hills had been stolen from the Lakotas in 1876 in violation of the Fort Laramie Treaty of 1868. But the court didn't award the land back, proposing instead a monetary settlement per the Fifth Amendment's "just compensation" clause. The Lakota tribe responded that "the Black Hills are not for sale," and to this day it refuses to accept nothing short of a return of its land.

The case stemmed from the taking of the Black Hills, an Indigenous sacred site, for illegal mining. In 1980, a planned expansion of energy exploration galvanized white ranchers and farmers to ally themselves with the Lakota people. The result was the Black Hills Survival Gathering, which brought together thousands of people from diverse backgrounds to halt the extractive industries in a historic demonstration of what social movements can do. The gathering marched under the banner of "water is life" and "Mni Wiconi," phrases now most commonly associated with the Standing Rock uprising.

The failure of federal courts to return Indigenous land and uphold treaty rights was also partly the impetus behind the 1974 formation of the International Indian Treaty Council, in which about 5,000 people representing 97 Indigenous nations from around the world looked to the United Nations for a solution to their sovereignty claims. The hosting nation, the Standing Rock Sioux Tribe, spelled out its intentions clearly: "The Great Sioux Nation does not want money damages and is determined to enforce the Treaty of 1868 for all Sioux people."

The International Indian Treaty Council, alongside other international Indigenous organizations, went on to spearhead the drafting of the 2007 U.N. Declaration of the Rights of Indigenous Peoples. Although imperfect — declarations are, after all, aspirational and nonbinding — the declaration provides a universal mechanism for free, prior and informed consent with Indigenous nations over the decision-making process of development projects. Genuine implementation of this touchstone document in the United States would bolster Indigenous authority over lands they control and landscapes that they have historic and cultural ties to.

That Indigenous movement reawakened in 2016 at Standing Rock, unleashing a cascade of uprisings against fossil fuel projects and winning important legal battles, from victories against pipelines to securing land rights. And it is that momentum we must continue to harness now.

As with Black Lives Matter, the seeds of the new Indigenous movement were sown during the Obama administration and bore fruit during President Donald Trump's term. Amid the recent George Floyd protests and calls to defund the police, statues of colonizers and symbols of white supremacy have also begun to fall. The changes, however, are more than symbolic. Now the fossil fuel economy — the key driver of global warming, once thought indomitable — appears to be on the ropes despite its recent historic growth.

At the center of it all is Indigenous sovereignty, which is at the forefront of protecting the rights to a clean environment for Indigenous and non-Indigenous people. The recent Dakota pipeline decision is a part of a broader movement for decolonization that seeks to restore land to Indigenous people and implement a much more comprehensive framework for environmental justice.

Indigenous movements have demonstrated the profound shortcomings of the U.S. legal system in administering justice. We shouldn't, however, minimize the role social movements play in affecting legal decisions and shaping public consciousness.

Unarmed Water Protectors in prayer camps at Standing Rock withstood attack dogs, a constant barrage of chemical weapons such as tear gas and the presence of at least 76 different law enforcement forces. More than 800 people were arrested, with several Indigenous Water Protectors still in federal prison.

The last time there was such a mobilization in the area was in 1890. About half the United States' standing army, according to my research, was deployed against starving, horseless and mostly unarmed Dakota and Lakota Ghost Dancers. The military campaign culminated in the assassination of the famed Hunkpapa spiritual leader Sitting Bull at his home in the Standing Rock reservation and the massacre of Chief Big Foot's band at Wounded Knee.

The Water Protectors and the Ghost Dancers weren't hapless victims. They represented a legitimate threat to unrestricted corporate access to Indigenous land and resources. They also represented a different political order grounded in the land, a legacy that continues to grow today.

Indigenous movements have demonstrated the profound shortcomings of the U.S. legal system in administering justice. We shouldn't, however, minimize the role social movements play.

Lakota people led a protest against Trump's visit to Mount Rushmore in the sacred Black Hills this month. The action was about more than the president's visit. It was about the continued dispossession of the Black Hills from the Lakota and the refusal of the U.S. to honor its own Constitution, which says treaties "shall be the supreme law of the land." A poem was spray-painted on a riot shield as police advanced on the road blockade. It read, "LAND BACK."

The recent Dakota Pipeline decision is an unprecedented victory for the Standing Rock Sioux Tribe. LaDonna Brave Bull Allard, a Standing Rock historian who played a leading role in opposing the pipeline, declared in a recent interview in response to the ruling: "We've only just begun."

CORRECTION (July 12, 2020 2:15 p.m. ET): A previous version of this article misstated the target of the 2016 Standing Rock protests. They were held against the Dakota Access Pipeline, not the Keystone XL pipeline.