The Great Sioux Nation V. The 'Black Snake': Native American Rights and the Keystone Xl Pipeline

Abstract

The Keystone XL Pipeline has been shrouded in controversy almost since its conception. As a structure intending to cross the Canadian border into the United States, the pipeline must receive presidential approval before construction can commence. Since 2008, TransCanada has attempted to obtain this approval unsuccessfully. Criticism against the pipeline has focused largely on the negative environmental impacts that will likely accompany its construction and utilization, and it is precisely these environmental concerns that have ultimately stymied presidential approval and made international headlines. In November 2015, the U.S. government denied TransCanada’s application, effectively killing the Keystone XL project. While the Keystone XL project no longer poses a physical threat to the environment, an overview of the U.S. government’s consideration of the project reveals drastic flaws in process, specifically in regards to the human rights of a substantial portion of individuals who would be negatively affected by the Keystone XL Pipeline — the Sioux Nation.The pipeline is set to run through a substantial portion of the Black Hills of South Dakota — the sovereign and treaty lands of the Great Sioux Nation. This “black snake” threatens not only the environment of the Sioux lands, but also sites sacred to the tribes. The Sioux Nation has risen up in defense of their lands, and their right to free, prior and informed consent (FPIC) before the state can undertake projects on their indigenous lands. While the U.S. government maintains it has complied with domestic standards regarding Indian consultation and with its perverse interpretation of the right to FPIC protected under the U.N. Declaration of the Rights of Indigenous Peoples, its actions have fallen drastically short of those expected by the United Nations and required by the inter-American system. This paper argues that under the American Declaration on the Rights and Duties of Man, the United States is obligated to obtain the fully informed consent of the Sioux Nation before approving the Keystone XL pipeline.