Native Americans ride last week to a sacred burial ground that was disturbed by bulldozers building the Dakota Access Pipeline (DAPL). Hundreds of people have gathered to join the Standing Rock Sioux Tribe's protest of the oil pipeline near Cannon Ball, North Dakota.

Native Americans ride last week to a sacred burial ground that was disturbed by bulldozers building the Dakota Access Pipeline (DAPL). Hundreds of people have gathered to join the Standing Rock Sioux Tribe's protest of the oil pipeline near Cannon Ball, North Dakota.

At the Sacred Stone Camp, near the Standing Rock Sioux Reservation In North Dakota, thousands of people from more than 200 Native American tribes have joined the protest against a pipeline that would carry crude oil from the Dakotas through Iowa to Illinois. And more demonstrations have emerged across the country this week. They say the project would damage drinking water and sacred ground. The Texas company behind the pipeline says it poses no risk, and a judge ruled last week that the stakeholders went beyond their legal obligations to get approval for it. Meanwhile, an order from the Obama administration has halted construction of the pipeline around certain waterways near the reservation. The controversy has sparked a renewed conversation over how energy projects are approved—and who is involved in the process. What’s next for the Dakota Access Pipeline and how infrastructure decisions are made in the U.S.


  • Brian Cladoosby President, National Congress of American Indians; president, Association of Washington Tribes.
  • Amy Harder Reporter covering energy and climate policy, The Wall Street Journal
  • Dallas Goldtooth Representative, Indigenous Environmental Network. She's been at the camps near the Standing Rock Sioux reservation for the past six weeks.
  • Christi Tezak Managing Director of Research, Clearview Energy Partners LLC
  • Frederick Hoxie Swanlund Professor of American Indian Studies at the University of Illinois, focused on indigenous politics and American social and political history; author, "This Indian Country: American Indian Activists and the Place They Made"; co-author, "The People: A History of Native America."

Read: Statement From Energy Transfer Partners

Energy Transfer Partners declined an invitation to join the Diane Rehm Show. They shared this statement that was sent to employees this week.

ETP Internal Memo 9 13 16 Final to Employees by wamu885 on Scribd

Map: Dakota Access Pipeline

These maps from Energy Transfer Partners show the route of the Dakota Access Pipeline.

Map: Dakota Access Pipeline by wamu885 on Scribd


  • 10:06:54

    MR. A. MARTINEZThanks for joining us. I'm A. Martinez of Take Two on KPCC, Southern California Public Radio, sitting in for Diane Rehm. Last week, a court ruled against the Standing Rock Sioux tribe in their case against a pipeline that would bring oil from the Dakotas to Illinois near some of its reservation's waterways. But hours later, the Obama administration suspended construction on parts of the pipeline so it could review the permits issued near tribal lands.

  • 10:07:21

    MR. A. MARTINEZNow, this week, protests continued in more than 100 locations across the country and as the company building the pipeline defends the projects, the Army Corps of Engineers reconsiders whether to proceed with the construction near the reservation land. Joining me in the studio to talk about what's next for the Dakota Access Pipeline is Brian Cladoosby, president of the National Congress of American Indians, Amy Harder, a reporter for The Wall Street Journal, Christi Tezak, managing director of research, Clearview Energy Partners, LLC.

  • 10:07:52

    MR. A. MARTINEZAnd by phone, Frederick Hoxie, Swanland professor of American Indian studies at the University of Illinois. Welcome to all four of you.

  • 10:08:00

    MS. CHRISTI TEZAKThank you.

  • 10:08:00

    MS. AMY HARDERGreat to be here.

  • 10:08:01

    MR. BRIAN CLADOOSBYThank you for having us.

  • 10:08:02

    MARTINEZNow, before we start our conversation, let's go, by phone, to North Dakota. Standing by there is Kandi Mossett. She's an organizer with the Indigenous Environmental Network who has been protesting the pipeline. Kandi, welcome.

  • 10:08:15

    MS. KANDI MOSSETTThank you for having me this morning.

  • 10:08:17

    MARTINEZKandi, tell me about what it's been like on the ground there for the past few weeks. Who's there right now?

  • 10:08:24

    MOSSETTIt's been interesting. It's been kind of an emotional rollercoaster. On the weekend, we have number spouts around 4 or 5,000. Right now, during the weekdays, there's probably about 1,000 people from around the country with more continuing to come every day. And the past few weeks have been, like I said, crazy with Dakota Access, first off, destroying the sacred and cultural site, which was very triggering for many of us and that also put a call out to people to join us, after seeing the video footage that went out.

  • 10:08:55

    MOSSETTAnd also, after hearing that Amy Goodman from Democracy Now had a warrant out for her arrest for (technical) and then, recently, you know, people were very upset about the injunction being denied and then, literally, a half an hour later, hearing that, you know, there was going to be a stop-work order for underneath the Missouri River and also, that includes 20 miles on the east and west side of the river. But it's important that people know that construction is continuing. Here in North Dakota on the pipeline, 22 people were arrested yesterday as they went out about 100 miles from camp to lock down onto equipment and stop the workers.

  • 10:09:35

    MOSSETTAnd there's an action happening right now, as we speak, this morning, people are locked down to equipment where construction continuing about 100...

  • 10:09:43

    MARTINEZContinuing in the areas where they're not supposed to be working right now?

  • 10:09:46

    MOSSETTNo. No, they're doing what they can do legally. The only thing that was stopped by the administration's office was 20 miles to the east and west of the river. So this is about 98 miles northwest of here in North Dakota where construction continued, where they're actually trenching now and where they are healing pipe and welding pipe. All of that work has continued business as usual.

  • 10:10:12

    MARTINEZSo they're setting up in case there's a change in the case.

  • 10:10:17

    MOSSETTIt's almost as if they're just, okay, there's a temporary stop. Maybe all these people will go away now or maybe they're going to try to find another -- I'm not sure, but they're continuing to build just as if nothing ever happened from the administration.

  • 10:10:30

    MARTINEZNow, for the most part, have protests remained peaceful?

  • 10:10:34

    MOSSETTProtests have always remained peaceful and I don't even know -- you got to say protest. We're protectors. And, you know, it's good that we have social media, that we have Facebook Live because we've been able to show what we mean by nonviolent direct action, which is physically putting our bodies in the way of the bulldozers to stop them from harming our sacred sites and destroying the water and that has always been what we've done out here.

  • 10:10:59

    MOSSETTAnd we haven't been armed and so I think that we've been able to show that, by and large, in the media that we're not the ones that are violent. In fact, it's the company that's been aggressive and has moved in without warning and destroyed, intentionally and purposefully destroyed a sacred site that they had GPS coordinates for, disturbing two, if not more, gravesites and yet, we're being called the violent ones. It's -- social media tells the story.

  • 10:11:28

    MOSSETTThey have pepper spray. They have dogs. We've been attacked trying to protect water for everyone.

  • 10:11:34

    MARTINEZKandi, you've said this isn't just about North Dakota. Tell me about some of your concerns outside of that.

  • 10:11:41

    MOSSETTWell, obviously, the pipeline doesn't stay in North Dakota, first of all. It goes through several states, South Dakota, Iowa, Illinois and on down. But what the company has been able to do successfully is use nationwide permit 12, which allowed them to break this pipeline into little bitty sections in each state and that's how they got away with not doing a full environmental impact statement on the damage that was going to be caused by this long pipeline.

  • 10:12:07

    MOSSETTAnd the -- in addition to that, people need to understand that here we are in Standing Rock North Dakota, above the reservation, but it is on the Missouri River. 28 million people are downstream from this specific site, as the water flows all the way down to the ocean, that would be impacted when that pipeline leaks if it were to go into the water. We know now, all pipelines leak in some way, shape or form.

  • 10:12:31

    MOSSETTBut the biggest thing that I had just gotten information about in the past two days is that if this pipeline, Dakota Access Pipeline, were allowed to be constructed, it would increase emissions into the atmosphere that would be equivalent to 29.5 new coal-fired power plants in this country, which is also equivalent to 21.4 million new vehicles. And this is per year that it would commit to the atmosphere in...

  • 10:12:58

    MARTINEZKandi, where is that information coming from, Kandi?

  • 10:13:01

    MOSSETTOil Change International. They did studies and reports and came out with a report and the statistics on this information. So if this country, the United States, is serious about improving our climate emissions due to the climate chaos we've already caused, they would not allow Dakota Access Pipelines to be built.

  • 10:13:20

    MARTINEZKandi, how strong is the resolve there? Because here's the thing. If the company gets all of the -- say it gets to the point where they get every possible approval they can from the federal government and they start building, they start building in those areas that you're opposed to them building on, what will happen then?

  • 10:13:43

    MOSSETTPeople power. In fact, that's the only thing that has happened so far. Had we not been here, had we not been doing the nonviolent direct actions, that order would've never came from the administration, you know. This pipeline would've been built already. And it’s the same story as Keystone XL Pipeline. People told us it's a done deal. What are you doing? You're not going to stop it. Well, we stopped the Keystone XL Pipeline and we're gonna stop the Dakota Access Pipeline.

  • 10:14:05

    MOSSETTAnd then, we're going to be ready for the next pipeline in the works. We already know investors are pulling out. We already know that they're losing money and that's where you need to hit these kinds of corporations is in their pocketbooks because at the end of the day, the bottom line is about how much money is going to be made. It's not even necessarily about the oil because this country is not suffering from a lack of oil. There's oil floating around on barges. There's oil in storage tanks.

  • 10:14:27

    MOSSETTWe have so much oil in this country, we don't even know what to do with it. We're addicted to oil and we're here to show the world that we can get off that addiction. Join the Native Americans 'cause we have never changed our story over the past thousand years about not raping and pillaging the Earth because it'll come back and harm us, which it's doing now.

  • 10:14:44

    MARTINEZKandi, what do you say to the company's claims that they have tried their best to work with tribes on this, that they have tried...

  • 10:14:49

    MOSSETTIt's an absolute lie. It's a fabrication. What they consider consultation is maybe taking out one person in a nation of hundreds or thousands and all one has to do is look at -- in history of what has happened to us as Native Americans in this country, how our treaty rights have been broken time and time and time again and this case is no different. The Fort Laramie Treaty of 1851 and 1868 is being trampled upon.

  • 10:15:16

    MOSSETTIf we had been properly consulted, sacred sites wouldn't be destroyed right now. I wouldn't be crying from my ancestors bones that have been disturbed and dug up right now if they had actually consulted with us, the Native American people, that are mostly impacted.

  • 10:15:32

    MARTINEZKandi, so what's next for you? What's -- so what do you have today, what do you have tomorrow, for the rest of the week? What's the immediate outlook look for the rest of the week?

  • 10:15:41

    MOSSETTThe immediate outlook is to get our people out of jail that were arrested yesterday and to get the people out of jail that are being arrested right now today for locking down to equipment and successfully halting construction. We are also making plans for winter camp. This is currently a summer camp, but this is North Dakota. It's September. It's starting to get pretty cold at night so we plan on being here for the long haul. We're not going anywhere so donations and supplies are definitely still needed to help us as we winterize the camps.

  • 10:16:08

    MARTINEZAre people okay, though? I mean, are they holding up physically? Are they getting enough food, water, blankets, all that? Are they okay?

  • 10:16:16

    MOSSETTBy and large, people are okay. I'm actually, you know, I have a -- my three-year-old daughter is with me and there's been a cold kind of going around camp and so people are just trying to take a lot of vitamin C and trying to stay healthy. But by and large, people are in good spirits, still really beautiful in the camp at night. There's the drums. There's the singing, the hand games, the different performances that people don’t see.

  • 10:16:40

    MOSSETTA lot of the media and the reporters, they leave during the day. They don't hear all of the beautiful round dancing and different songs and things that are happening in the camps throughout the night, which keeps up people's morale. We're here as a community and it really is a beautiful thing.

  • 10:16:55

    MARTINEZKandi, one last thing. You said that there's as many as 1,000 people there. Do you expect more or is that about the limit of what that area can hold?

  • 10:17:04

    MOSSETTNo, like I said previously, we've swelled on the weekends to 4,000, 5,000 people.

  • 10:17:08

    MARTINEZ4,000, okay.

  • 10:17:08

    MOSSETTSo we can hold -- we can have more and I've been getting calls. I can make it out in about two weeks, will the camp still be there? So people are, like, well, what's happening now with the stop work order? There's a confusion. People think that work has stopped and it hasn't. Right here, immediately where we're camped, they don't appear to be doing activity, but they're still continuing activity in the northwest part of North Dakota and then, indeed, in the other states as well.

  • 10:17:33

    MOSSETTSo I keep telling people, we're going to be here. We're here. Come support us. We still need bodies on the ground.

  • 10:17:39

    MARTINEZKandi Mossett, thank you very much for joining us.

  • 10:17:41

    MOSSETT(speaks foreign language) Thank you.

  • 10:17:42

    MARTINEZAll right. Coming up on "The Diane Rehm Show," more. We'll dive deeper into the Dakota Access Pipeline. This is "The Diane Rehm Show," A. Martinez filling in.

  • 10:20:00

    MARTINEZWelcome back. I'm A. Martinez of Take Two on KPCC, Southern California Public Radio, sitting in for Diane Rehm. All right, let's dive deeper into the Dakota Access Pipeline. Let's reintroduce our guests, Amy Harder, reporter covering energy and climate policy with the Wall Street Journal, Christi Tezak, managing director of research, Clearview Energy Partners LLC, and Frederick Hoxie, Swanlund Professor of American Indian Studies at the University of Illinois, and also Brian Cladoosby. I'm going to get your name right eventually, Brian. I'm sorry about that, president, National Congress of American Indians, Association of Washington Tribes.

  • 10:20:36

    MARTINEZAmy, let's start with you. Let's go back to the very beginning. We had a very emotional conversation just a few minutes ago from the scene there in North Dakota, but let's go back to the beginning of the project. A lot of people are hearing about these protests and all the emotion that goes with it, but let's get to the basics and the facts of how it started and how far along is it.

  • 10:20:53

    HARDERWell, it's been trickling in, the pipeline, no pun intended, for a few years now. The Wall Street Journal reported in 2014 that because of the Keystone XL Pipeline debate, organizers, including Native American tribes and environmentalists, have created a template to fight other pipelines, including Dakota Access. At the time, we labeled it one of 11 pipelines. At this particular time it did not have any particular delays yet. And so we're seeing now in the national media this -- these protests that have really catapulted it to the front burner here in Washington.

  • 10:21:31

    HARDERThere was a protest yesterday at the White House with several hundred people. But for a while it was going through the process like any other pipeline, save for the Keystone XL Pipeline, of course. In July, for example, the Army Corps of Engineers, which is the primary federal agency with jurisdiction over this project, it had awarded nearly all of the permits that were necessary for this project. And so it is quite unusual, I would say unprecedented, for the Army Corps to do what it did, along with the Justice Department and the Interior Department last week, which was to -- to say that it wasn't going to give final authorization to one part of the route that it has jurisdiction over.

  • 10:22:13

    HARDERAnd so right now we're at the tail end, or at least what should be, in typical review fashion, the tail end of the process. The speaker earlier talked about how the company is continuing to construct the pipeline. That's because it has the legal right to. We're only talking about, you know, 40-or-so mile range where they cannot build.

  • 10:22:32

    MARTINEZAnd she mentioned that, that they're operating under the...

  • 10:22:36

    TEZAKActually it's not even that big an area. The voluntary temporary restraining order that Dakota Access agreed to with Judge Boasberg in D.C. District Court actually only limits work two miles east -- two miles west of Lake Oahe and 20 miles to the east.

  • 10:22:56


  • 10:22:56

    TEZAKSo it's not even the full 20-mile buffer on each side. The Standing Rock have appealed to the D.C. Court of Appeals to have the full length of the voluntary request made by DOJ, Interior and the court to cease work 20 miles on both sides.

  • 10:23:10

    MARTINEZAnd we actually have a map of the route on our website, at And we invited Energy Transfer Partners, the company building the pipeline, to join the show this morning. A representative said they were unavailable. The company did, though, send a statement, which you can also read in full on our website, And it reads in part that the company is committed to completing construction and safely operating the Dakota Access Pipeline within the confines of the law and that they would meet with officials in Washington this week.

  • 10:23:38

    MARTINEZBrian, how does -- I mean, just there are emotions all over the place, from the company in Texas, from the people there in North Dakota. I mean how do you -- what's your view of it so far?

  • 10:23:47

    CLADOOSBYWell, so far when you look at the history of the United States and the history of how tribes are treated, especially in the last 100 years, the federal government, as our trustee, has a trust responsibility to ensure that our homelands are protected. And when the U.S. Army Corps of Engineers, who is, you know, the governmental body in charge of the nation's waterways, in February 2015 sends a letter to the tribe indicating that this project was going to start, sending a letter to their tribal historic preservation officer, you know, on -- you know, in February, and the tribal historic preservation officer responds to the Core of Engineers in February and in April with no response from our trustee, that's very concerning for the tribes, especially when they know that there's known sacred sites, burial sites and things like that, in this area where they're going through.

  • 10:24:42

    CLADOOSBYSo I believe our trustee did the right thing here by asking the company to voluntarily stop until they have more consultation on this project. So once again, it's very important that the tribes are initiated early on.

  • 10:24:56

    MARTINEZHow is a sacred site determined? I think a lot of people don't understand maybe the process of how it's agreed upon.

  • 10:25:00

    CLADOOSBYRight, you know, there's 567 tribal nations across the United States. Many of your listeners don't -- are not aware that they are all individual governments with the government having a trust responsibility to each and every one of those 567 nations. And all those 567 nations ceded territory to the United States, which created the greatest nation on Earth, and each and every one of those tribes have sacred sites and burial sites in those ceded territories that they had given up.

  • 10:25:31

    CLADOOSBYAnd so the Standing Rock Sioux were part of the 1851 treaty. At that time in 1851, their land base was seven states, and in 1868 it was reduced to basically two states, North Dakota and a little bit of South Dakota. So that property that they had lost contains a lot of very sacred sites and burial grounds, and part of this pipeline is going through that area.

  • 10:25:55

    MARTINEZBecause I keep reading 99 percent of this is on private land. So how does that figure in?

  • 10:25:58

    CLADOOSBYWell once again, we ceded property to the federal government to create the greatest nation in the world, and the federal government still has a trust responsibility to protect those sacred sites on land that we have ceded and reservations that were diminished over the last 100 to 150 years, which contains untold amounts of burial grounds and sacred sites that the federal government as our trustee needs to protect.

  • 10:26:24

    MARTINEZAmy, let's get to the lawsuit and everything that happened late last week. What did the judge rule?

  • 10:26:28

    HARDERIt was a bit of a whiplash moment, I think, for a lot of people who haven't been following it too in-depth. So Friday afternoon the judge ruled against the tribe's appeal to stop construction, but then minutes later, about a half-an-hour later, the Justice Department and the Army Corps of Engineers and the Interior Department interjected and said -- they asked for the voluntary stop of construction, but they also are holding back approval of one easement, which from a physical perspective is not that much of the pipeline, but of course you can't move oil if even one mile of the pipeline is not connected. It's not an efficient thing to do.

  • 10:27:09

    HARDERAnd so now the next step in the legal process is the tribe is appealing that ruling, and there's a conference meeting on that on Friday. But the biggest thing that is outstanding is what the administration is going to do and whether or not the Army Corps is going to follow through an approve the final easement that they would have -- were about to go follow through and approve that, whether or not they follow through with that.

  • 10:27:34

    MARTINEZChristi Tezak?

  • 10:27:36

    TEZAKWhat the judge ruled actually was that the tribe wasn't able to make the case that there was insufficient consultation. In fact he found that on several issues, the Corps of Engineers actually went beyond the requirements. And where the difference of opinion lies between the Standing Rock and the Corps of Engineers is how far beyond these water crossings the National Historic Preservation Act applies.

  • 10:28:05

    TEZAKAs the chairman explained, the tribe's interpretation is that this is very expansive, that it applies to all land between the crossings, and the way the law has been applied and the way court precedent is and what the judge relied upon was that for the areas within how the Corps of Engineers looks at the National Historic Preservation Act relative to these crossings is much smaller.

  • 10:28:29

    TEZAKAnd that's really the crux of the case. The injunction was denied because the precedent says that the Corps did their job, and it was -- he was quite explicit in how he worked through the interactions between the tribe and the corps, and if someone cares about this issue, they should read it because I think they would find the decision informative. But it doesn't resolve the underlying complaint that Amy referenced that is still to be decided, which is how far should the court's jurisdiction apply.

  • 10:29:00

    TEZAKAnd the way the law and regulations stand today, this narrow interpretation looks very likely to prevail, and we think there is a possibility that the easement could eventually be granted. But perhaps what's more important is the state of play for regulation going forward. The NWP, the nationwide permit process that our caller referenced earlier, is under renewal right now. The proposal was issued in June. Comments ended on August 1.

  • 10:29:37

    TEZAKThe Standing Rock Sioux participated and had very robust comments asking the Corps of Engineers to either take oil pipelines out of this particular program altogether, which has more limited environmental review, or expand the scope of that review. And so going forward, I think where the real opportunity is telegraphed in what the Department of Justice and Interior did with the Army, to meet with the tribes and talk about what needs to be changed, and there's a unique opportunity here for the administration to make good on such a promise because they want to meet with the -- with the tribes, and, you know, I hope you hear from them soon, to talk about this, and they may be able to capture some of these changes in the regulation that is going to be finalized probably early next year.

  • 10:30:19

    MARTINEZWhen it comes to pipeline, though -- I'm sorry, Brian.

  • 10:30:21

    CLADOOSBYNo problem.

  • 10:30:23

    MARTINEZWhen it comes to the pipeline, why are pipelines built to begin with? Why can't they just put them in a truck and take them to where they need to go?

  • 10:30:29

    TEZAKWell because it's easier to move high volumes in a pipeline. The rail -- putting them on rail cars, as the chairman could tell you, firsthand experience, is also very problematic in terms of potential risk of accident. Per -- for volume and over miles traveled, pipelines are safer. I would quibble with the caller's assertion that every pipeline leaks, but it's generally far safer, and to the extent that this nation still relies on fossil fuels to power most of our cars, then I think that there's still demand to move the resource wealth that we have in this country to the refineries that turn it into products all of us can use, whether it's gasolines or plastics.

  • 10:31:13

    MARTINEZHow many issues have pipelines had with contamination in the past, other pipelines?

  • 10:31:17

    TEZAKWell, recently the issues we have had in terms of leaking pipelines have been those that are older, and so that is incontrovertible evidence. In fact the Standing Rock mentions several significant recent accidents related to pipeline leaks. What the company, of course, argues is that they're bringing, you know, brand new, safer infrastructure, which will be a better way to move resources.

  • 10:31:48

    TEZAKBut certainly the history of, you know, that we've seen in the last few years in terms of contamination, there was an Enbridge line, there's an issue in Arkansas, in Michigan. So there's definitely a body of anecdotal evidence that pipelines over time can fail. But what is -- the company plans to put in the ground now is arguably not our grandfather's pipeline.

  • 10:32:07

    MARTINEZI'm A. Martinez, and you're listening to the Diane Rehm Show. If you'd like to join us, give us a call, 800-433-8850. Or send an email to You can find us on Facebook or send us a tweet. You can find me on Twitter @amartinezla. Let's bring in Frederick Hoxie, Swanlund Professor of American Indian Studies at the University of Illinois. Frederick, these demonstrations, they're -- they're in the headlines every single day, and the amount of emotion attached to this, it's something that I don't think many people have really seen if they haven't been paying attention. So how does this compare to maybe other protests that you've observed and studied?

  • 10:32:49

    MR. FREDERICK HOXIEWell, I think this is a fascinating moment and a very different moment in many ways from things we've seen in the past, the Alcatraz takeover in 1969 and the Wounded Knee occupation in 1973. Those were events that captured national attention the way this does and created the same kind of surprise and concern and emotional response. What makes this one so different, I think, and so interesting is that it is -- the previous major protests that I mentioned, from the Red Power Era, revealed deep divisions within the American Indian community, as well as anger at the outside world.

  • 10:33:37

    MR. FREDERICK HOXIEThey were also hampered by the fact that their goals were not entirely clear. They were cultural, broadly political and so on. This protest, by contrast, I think just by the presence there today of the president of the NCAI and the broad representation of people who were at the encampment appears to be quite a unified group of Native people and their supporters who are there.

  • 10:34:04

    MR. FREDERICK HOXIEAnd the goal of the protest also seems quite focused on a particular issue that people can understand. So I think this is a remarkably different kind of protest and unprecedented in that respect.

  • 10:34:18


  • 10:34:19

    HARDERI would say the Keystone XL Pipeline debate really laid the groundwork for this coalition of Native Americans who are upset about what some of these companies are doing and environmental groups who want to elevate the issue of climate change and then also local landowners and ranchers. And this has been a very powerful coalition, more powerful than I think a lot of people have given it credit for.

  • 10:34:43

    HARDERI was at the protest yesterday at the White House, and many of the speakers, who are from the tribe, you know, they were talking about their sacred rites and their sacred lands, they were talking about healthy water. They didn't really talk about climate change. But then we saw Senator Bernie Sanders, of course a former presidential nominee, and he was focused largely on climate change. And I think you're seeing, depending on who you ask and what part of this debate you're coming at this from, it's about a lot of other -- about a lot of issues that overlay with each other and all have a common goal, even if they're coming at it from slightly different angles.

  • 10:35:17

    HARDERI would note that the Army Corps decision and the statement from the administration on Friday didn't say anything about climate change except that's what it's about for a lot of people, especially here in Washington.

  • 10:35:28

    MARTINEZBrian, when it -- you heard Bernie Sanders. We've seen him be on the side of the Native Americans here. But you've got Leonardo DiCaprio, Susan Sarandon, and they're pushing their own agendas, too. How do you -- how do you keep focused, or how do people there in North Dakota keep focused on what's important to them without having other people kind of glom on and say -- and be part of it but also pushing what they want, as well?

  • 10:35:51

    CLADOOSBYWell, this issue has resonated in a way that other issues haven't in a long time, like the professor said. And so when you hear the power of collective tribal voices come together, it's -- we're seeing something that is unprecedented. And when others come in to support, we embrace them because they have concerns like we do. And when you look at this project, which is just about as long as the XL pipeline and was able to go through because it didn't cross a border, and if you look at the history that the pipeline was originally supposed to go across the river in front of the governor's mansion at Bismarck, but the governor and the residents says no, we don't want it there because of a potential spill that could impact our people, so let's move it down half-a-mile in front of the Indian reservation, that'll be okay, that's things that we've witnessed for 100 to 150 years where we've been run over.

  • 10:36:42

    CLADOOSBYIf this was happening 50 years ago, you wouldn't see this. You wouldn't see this collective voice. Tribes wouldn't be able to travel to North Dakota like you see them traveling now, and the power of social media, people getting on board, people reporting about this, just like Detroit. You know, Detroit had a water issue, and the people heard it loud and clear. They weren't caller protestors or agitators. They were concerned citizens. They were a government concerned for their people, just like Standing Rock is a government concerned for not only their people but the seventh generation.

  • 10:37:13

    MARTINEZComing up, the conversation continues. We'll also have your calls and questions, too, 1-800-433-8850, that's 1-800-433-8850. Or you can email us, I'm A. Martinez, filling in for Diane Rehm.

  • 10:40:01

    MARTINEZWelcome back. I'm A Martinez of Take Two on KPCC, Southern California Public Radio sitting in for Diane Rehm. We're talking about the Dakota Access Pipeline and we're joined by Frederick Hoxie, Swanlund Professor of American Indian Studies at the University of Illinois. Christi Tezak, Managing Director of Research, Clearview Energy Partners LLC. Amy Harder, Reporter covering Energy and Climate Policy, The Wall Street Journal. And Brian Cladoosby, President, National Congress of American Indians, President, Association of Washington Tribes. Amy, you were going to say something about previous cases.

  • 10:40:32

    HARDERRight. Well, we're talking about the unprecedented nature of this, and it certainly is quite unprecedented, in terms of what the Army Corps has done in the past and the fact that it's approved most permits, but is now holding back this one that the company needs. But, in terms of the power of Native American tribes and this loose coalition around the country of different interested parties, it's not wholly unprecedented. Of course, Keystone Native Americans were active in that.

  • 10:41:01

    HARDERBut even more so, I recently visited Bellingham, Washington, where a coal export terminal near there was rejected again by the Army Corps, citing sacred fishing rights of the Lummi Nation, and I understand that was the first ever rejection of a permit like that, citing those types of rights. And so, that was a very similar case. It's not a pipeline, but it's still a fossil fuel infrastructure. And if you go as broadly as you can on this issue, it's really about the concerns raised about a whole range of fossil fuel infrastructure. Pipelines.

  • 10:41:36

    CLADOOSBYAnd that is, that is my backyard. So that is about 30 or 40 miles away, the crow flies, from my homeland. And it was going to be the largest coal exporting facility in the world. And they were desecrating sacred sites of the Lummi Nation and they were potentially going to destroy fisheries sites of nine other -- eight other tribes beside the Lummis. And so, when the Corps rejected this based on treaty rights, it was a major, major victory for Native Americans all across the US.

  • 10:42:04

    MARTINEZLet's go out to...

  • 10:42:04

    HOXIEI'd like to add something.

  • 10:42:05

    MARTINEZGo ahead, Frederick. Go ahead.

  • 10:42:07

    HOXIEThe -- I think these are absolutely correct comments in that the seeking out of alliances like this and connecting native issues to broader issues of climate change and environmental protection are -- have been key to the success in recent years. But I think there's another issue here as well, and that is this, I think, in some ways, more significant, which Christi mentioned in the issue of consultation going forward. Tribes spent -- have spent the last half century asserting their treaty rights, organizing their own political institutions.

  • 10:42:41

    HOXIERehabilitating their economies, raising themselves in many ways. And now, tribes are poised to become active members of the political conversation in the United States. They've always had a voice and they've always wanted to participate. But there's now an opportunity because of these issues, and also because of the power and sophistication of tribal governments and tribal organizations to really insist on recognition and consultation in a way that really hasn't happened before.

  • 10:43:08

    HOXIEAnd that consultation also to extend to issues beyond simply the borders of the reservation, that tribal leaders are saying, as the President just said, that the tribal nation has a responsibility to its -- to the homeland. To the entire nation and to its preservation, the preservation of its environment. And those -- that kind of aggressive, assertive statement of sovereignty and of purpose for tribal groups, I think, is a growing trend. And something that I expect to continue in the future.

  • 10:43:41

    CLADOOSBYAnd just one quick point I want to make. Those sacred sites that the Lummis were protecting was off their reservation. Just like these sacred sites are off the reservation of the Standing Rock Sioux, but we still have a responsibility to take care of our elders who have gone before us.

  • 10:43:55


  • 10:43:55

    CLADOOSBYAnd so, I think that point needs to be made also.

  • 10:43:58

    MARTINEZChristi, when it comes to companies building pipelines, I mean, they have to know that they're going to get resistance, especially now, going forward. I can't imagine a company ever building a pipeline going forward without getting some resistance. But why do they still build anyway?

  • 10:44:09

    TEZAKWell, I think in the case of Dakota Access, and I mentioned earlier the posture of current regulation. The route was modified 147 times at the behest of tribes that did interact with Dakota Access and with the Corps of Engineers. And so, I think that the judge makes clear that the Standing Rock were holding out for something that is beyond the current posture of regulation in an effort to change the way the administration of the process currently is.

  • 10:44:42

    TEZAKMoving forward, when, you know, they didn't have this permit that's been questioned and there's been a lot said that they did it at their own risk. This last permit, ironically enough, given the green field distance that this pipeline crosses, is actually a modification of an existing utility easement. Where there is already a transmission line and a natural gas pipeline that run, you know, underneath the lake that was created when the Corps of Engineers dammed the Missouri River.

  • 10:45:13

    TEZAKSo, would it be folly, necessarily, to expect that in a country where there's a huge push in the policy of this administration to colate -- to co-locate utility infrastructure. To think that after July 25 when all of the National Environmental Policy Act reviews were completed, that they wouldn't get that piece of the permit. So, I think that when you look at the posture of the current case and precedent, it's more understandable why the pipeline moved forward when it did is because in the past, that has not been an issue.

  • 10:45:50

    TEZAKAnd to expect the modification of an existing utility easement when the policy of the Obama Administration is to drive co-location of utility crossings, particularly like this one, through an existing area that has already been disturbed, then I don't think it would be illogical to conclude that that, you know, approval would be forthcoming.

  • 10:46:13

    HARDERThis company was basically at the last couple of miles of marathon. Whereas Keystone, for example, they hadn't even started laying the pipe. They were at the beginning, and so that's an important difference. And gives us some insight into why the company continues to do what it's doing, which is laying the pipe where it can.

  • 10:46:29

    MARTINEZLet's go out to...

  • 10:46:29

    CLADOOSBYIt's very important, you know, 50 years ago, the tribes would have been rolled over. They would have ran this pipeline right through their homeland without any of -- without the tribe being able to object, so once again, people got to understand, this is about the tribe protecting its homeland, protecting its sacred sites. And protecting the next seven generations. You know, whatever industry is coming in to potentially destroy the homeland of a Native American tribe, our trustee has to really seriously consider that just like they did with the Lummis.

  • 10:46:59

    CLADOOSBYAnd protecting their sacred sites and protecting their treaty rights. So, whether it's a nuclear power plant, whether it's a pipeline, whatever. And this company, for not getting its permits in hand before starting this project, they were probably thinking, well, that's the way we've always done it. Well, this is the 21st century, and tribes are 21st century tribes now.

  • 10:47:18

    MARTINEZAnd social media too, being a big component here. Let's go out to Scott in Dallas, Texas. Scott, you're on the Diane Rehm Show.

  • 10:47:25

    SCOTTHi. I have a great degree of familiarity with how oil and oil products move around the US. There are currently 55,000 miles of crude oil truck lines in the United States. And this oil will be produced, regardless of whether the pipeline is laid or not. It will move by rail, if not by pipeline. The only time it's oil moved by pipeline is ground water issues if there is a leak in the pipeline. And pipelines have sophisticated systems of coatings and also cathodic protection, which is an electrical protection from corrosion.

  • 10:47:57

    SCOTTAnd they are very rare. And so it's a proven, efficient way of transportation. Also, real quickly, this will not affect climate change in a significant way, because the climate change is defined by, is affected by how much energy the United States uses. And, not produces, how much it uses.

  • 10:48:18

    MARTINEZScott, thanks a lot for the phone call. Christi, he says that the oil is going to be moved no matter what, even if the pipeline is laid down or not. But is it too far along for this company to take that road? I mean, have they gone down the road a little bit too far now?

  • 10:48:32

    TEZAKWell, I certainly can't speak on behalf of the company, but we are in an advanced stage of completion. The -- according the judge's decision, over 48 percent of the pipeline is complete. Almost, I think, 99 percent or 90 percent of the grading and excavating is completed in the four states. So, you're talking about something that is very well advanced. And, you know, people raise rational concerns when they, when they see this issue. And, you know, the profile it's taken.

  • 10:49:00

    TEZAKThey say, well, can't they just go around? And the question is, well, at some point, you cross the river. And, you know, where does that crossing take place? Does it take place in front of the governor's mansion? Does it take place in this existing crossing under Oahe? Does it take place somewhere else? And if it does, and if you reroute it, then the question is, is do you run the risk of disturbing more land and more sites? Do you create other problems?

  • 10:49:29

    TEZAKSo it's difficult, because when you read the judge's decision, you know, he seems to find that the pipeline made a deliberate effort to steer clear of everything they could that they felt would be subject to national -- the National Historic Preservation Act. And that is -- the current posture of regulations suggest that that may not be enough, given the emotions and the concerns that are raised here. And so, what I think is really important is, you know, the chairman has spoken about this evolution.

  • 10:50:00

    TEZAKAbout how 50 years ago, this situation would have been so different. And you look at the opportunity now for policy change in the coming months, with the Nation Wide Permit Renewal. We're really at a unique cusp to see something change dramatically going forward, whether or not this pipeline actually gets built, that will do a better job at integrating their priorities.

  • 10:50:22


  • 10:50:22

    HARDEROne other factor, important factor in this debate we haven't talked about much is the role of low energy prices. I believe that one of the biggest reasons that President Obama was able to, from a political perspective, reject the permit for the Keystone XL Pipeline was because oil prices had dropped so significantly, by half, between 2014 and the next couple of years. And so, now, you're seeing -- of course, these companies are still pursuing these projects, but regular people are not going to the, to the gas station and seeing sky high prices.

  • 10:50:54

    HARDERThat's important. That -- I believe that if prices, if oil prices had remained around 100 dollars a barrel, President Obama would have found it much more difficult to reject the Keystone XL Pipeline. Similarly, with the coal export terminal in the northwest, coal prices, perhaps people don't realize as much, because we don't see it in big letters at the gas station, they've also dropped. And that also made it easier for this opposition to gain ground.

  • 10:51:19

    MARTINEZI'm A Martinez. You're listening to "The Diane Rehm Show." Frederick, considering how organized this has been, I'm wondering, from what you've observed, could this lead to a higher level of organization when it comes to issues down the road for tribes?

  • 10:51:39

    HOXIEAbsolutely. Although, I'm not sure how much more organized. This reflects a pretty well organized and very sophisticated group of leaders. I should also just mention that as a little historical footnote, is that many of the protests of the past, most dramatic that I referred to earlier, were led by men and were sort of the whole idea of militancy, of sort of young warriors and so on.

  • 10:52:03

    HOXIEThis is a very different kind of protest. It's community protest. Women are very prominent in it. And I think this is another reflection of how sophisticated they are. The tribal governments today established with environmental protection offices, with offices of legal counsel and so on. They are going to continue their push to be recognized and to be involved in the conversations about energy and about other issues in their homelands.

  • 10:52:33

    MARTINEZAnd it sounds, Brian, as if there's no going back now. I mean, it's gotten to a point where I can't imagine tribes from -- going forward, not having their voice heard.

  • 10:52:43

    CLADOOSBYThat's correct. Once again, this is a generation that our grandparents and great grandparents dreamed of. The infrastructure in Indian country is amazing. We are 21st century governments. Our governments are sometimes second to none to those governments around us. And yes, this issue is very important to us and once again, it is an issue of our trustee doing the right thing for us. Something that our trustee hasn't necessarily done in the last 100 years.

  • 10:53:11

    CLADOOSBYAnd when you look at the environmental degradation and the pollution based economy that has damaged mother Earth in the last 100 years, it is unprecedented where tribes have lived here since time and memorial. And now, our water's polluted, our air is polluted, and our soil is polluted, and if you look at the statistics, 40 percent of the world's population, each year, is dying because of water, air and soil pollution. And it's sad, and a lot of those impacts happen to the poorest of the poor.

  • 10:53:37

    CLADOOSBYAnd nobody is more poorer in the United States than the Native Americans. So, our government has to step up and be our trustee and protect us like they haven't done in the past.

  • 10:53:46

    MARTINEZChristi, what does the company do at this point? Energy Transfer Partners. They just need to just sit back and wait or do they kind of keep moving forward here?

  • 10:53:56

    TEZAKWell, it's not clear what they can do about the easement -- the temporary restraining order related to the work stoppages that are in place will remain until the status conference in Judge Wasber's (sp?) court, on Friday. Unless the D.C. circuit changes it and expands it beyond the current two miles on the west side. The next steps we're looking for is what steps that the Corps is going to take in terms of the relook that they have suggested. It looks like it goes beyond the National Historic Preservation Act issues raised in the injunction request.

  • 10:54:34

    TEZAKBut includes a criticism of the NHPA environmental assessments. So, we'll have to see where that goes. To me, I think what will be critical is how fast the administration moves in making good on its initiative to have the government to government meetings that were specifically mentioned in the announcement on Friday. And have those this fall and that they be constructive. If they are constructive and if issues and concerns that have been raised can be addressed, then perhaps there is a way to keep this project going forward.

  • 10:55:06

    TEZAKBut I -- my expectation is consistent with the information that you have from Energy Transfer Partners, that I saw as well, is that they plan to complete all of their work in areas where they are allowed to work. And that's what they're going to do in the near term.

  • 10:55:19

    MARTINEZLet's squeeze in one more caller real quick. Kenneth in Cleveland, Ohio. Kenneth, you're on "The Diane Rehm Show."

  • 10:55:23

    KENNETHYes, hello and good morning. Basically, my statement, my question is just based upon the historical and systematic destruction of America's native people, it's appalling at best. Just on account of profit and personal gain. Imagine the outcry if western or traditional sacred spaces like, let's say like Arlington Cemetery or the old North Church in Boston were marked for a pipeline to go through it. I mean, imagine what the outcry would be from that.

  • 10:55:49

    KENNETHAnd I don't understand why these companies are even -- the government has -- there's never actually utilized, you know, that kind of foresight just to say, oh, well, what if this were, you know, the type of (word?) that we're currently in? You know, they don't even bring that to question. They don't bring that thought to mind.

  • 10:56:07

    MARTINEZKenneth, thanks a lot for the phone call.

  • 10:56:07

    CLADOOSBYYeah, that, that, that's a great, that's a great point there. As I was traveling down, I've been out to North Dakota the last two weeks and as I traveled down to Cannonball, there's a beautiful military cemetery for our veterans, right before you get to Cannonball, and my thought was the same. You know, what if they tried to put that pipeline underneath that cemetery, or what if they brought their bulldozers in and tried to destroy those sacred sites? You know, how would people feel? So, that's a really good point.

  • 10:56:34

    MARTINEZAmy, from your end of things, the reporting end of things, what goes next? What happens next?

  • 10:56:39

    HARDERWell, we also await more clarity from the administration about when these -- you know, they said on Friday that they're going to set up some meetings this fall with tribes to try to ensure that there's better input from not just the Standing Rock tribe in this instance. But tribes all around the country in terms of infrastructure projects. That was one note that I know the organizers against the pipeline really saw as a positive part of that statement was that the administration was considering some sort of national pipeline review.

  • 10:57:12

    HARDERI would note, though, that we are three or four months away from President Obama leaving office. I don't see them rushing to make a decision.

  • 10:57:19

    MARTINEZBrian Cladoosby, Amy Harder, Christi Tezak and Frederick Hoxie. Thank you very much for joining us.

  • 10:57:25

    CLADOOSBYThank you.

  • 10:57:26

    MARTINEZOn a very, kind of, emotional issue. But thank you for all your thoughts.

  • 10:57:29

    HARDERThank you.

  • 10:57:29

    HOXIEThank you.

  • 10:57:30

    MARTINEZI'm A Martinez of Take Two on KPCC, Southern California Public Radio, sitting in for Diane Rehm. Thanks for listening.

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