A twenty-first century trail of tears

Scrolling through my ever-so-informative Snapchat stories, one in particular stops me: Shailene Woodley, the outspoken Beatrice Prior in the hit movie Divergent, has taken her rebellion to the real world. She’s under arrest. Whaaaaaat!? Immediately intrigued, I looked up exactly why she has been arrested.

It turns out that Shailene, alongside Jaden and Willow Smith, was protesting the installation of the Dakota Pipeline, which would allow for 470,000 barrels of oil a day from the oil fields of western North Dakota to Illinois, linking the Dakota Pipeline to other pipelines along the way. Not only will the 1,720 mile pipeline, roughly 30 inches in diameter, touch 50 counties in four states to transport crude oil, but it will also touch on very important issues of injustice.

graphic by <span class="credit credit- "><a href="/credit/“”/" title="View all of this person's work">“”</a></span>

graphic by Helen Schrayer

This issue dates back to July 26, 2016, when the Sioux Standing Rock tribe filed a lawsuit against the U.S. Army Corps of Engineers. Nine days later, a preliminary injunction was filed. The tribe sought an injunction prohibiting construction for 20 miles on either side of Lake Oahe, a place of tremendous religious and cultural significance to the tribe, and a place that was part of the tribe’s treaty land but later taken away by unilateral acts of Congress. Lake Oahe is also the source of the tribe’s drinking water.

But the problem is that the Dakota Access Pipeline is being constructed almost exclusively on private land: Roughly 97 percent of the total length of the pipeline lies outside the jurisdiction of any federal agency.

The federal government can only regulate those portions of the pipeline that affect federal land or federal water. What this means, as a practical matter, is that the federal government and its agencies—in this case the U.S. Army Corps of Engineers—only have jurisdiction to review very small portions of the pipeline (the three percent that is not exclusively private). If the federal agency concludes that there is no harm to the Native Americans’ cultural heritage or water within their jurisdiction, then they have no ability to regulate the pipeline’s impact on a culturally sensitive site and burial ground that lies outside of their jurisdiction—even sites just a few miles north or south, or at the “water’s edge” of areas are subjected to federal jurisdiction. As the Army Corps of Engineers phrased it while opposing the tribe’s request for an injunction, pipelines “can ‘almost always’ be undertaken without the Corps’ authorization, ‘if they are designed to avoid affecting the waters of the United States.’”

The absence of any federal agency that can review an entire pipeline calls for a national solution. Federal agencies need to be able to review pipelines as a whole—not only small portions of federal land and federal waters—to ensure that any impact on a culturally sensitive sites could also be subject to review and prevented. A solution could take the form of a “National Pipeline Review Act” that would grant a new administrative body the power to review the environmental and cultural impacts on indigenous and impoverished communities across the country that are disproportionately affected by pipeline projects.across the country that are disproportionately affected by pipeline projects. When was the last time anyone heard of a pipeline spanning across the Hamptons?

Interestingly enough, the legality of this issue will be in the hands of President-elect Trump—who has not come out with any sort of response. It’s up to all of us—not just Shailene Woodley and other celebrities—to make sure the new president addresses this issue with a comprehensive solution.

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