Deserving a Place at the Table: Effecting Change in Substantive Environmental Procedures in Indian Country

Abstract

This note explores how tribal-federal relations have impacted environmental justice efforts in domestic pipeline construction in and around Indian Country. The impact these poor relations have had on indigenous peoples has the potential to adversely affect indigenous people and their reservation and ancestral lands. This note discusses how the federal government’s consultation provision in the National Environmental Policy Act and Executive Order 12898—that were supposed to support and include tribal governments in the process—have disregarded tribal governments as indigenous sovereign nations that must be brought into the conversation long before the first shovel penetrates the ground to disturb sacred land. The Dakota Access Pipeline case through the Standing Rock Sioux Nation is used as a case study to further explore the consultation process and tribal-federal relations in the process. Drawing on Federal Indian Law, looking to federal common law and introducing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), this note suggests incorporating human rights law into the environmental justice platform as well as delving into the trust doctrine and an interest balancing test to improve tribal-federal relations in the consultation process. Including tribes in the decision-making process will help inter-government relations and garner tribal self-determination.