Is the DNC taking pages out of the Florida Democratic playbook?

The Florida Squeeze

Florida Democrats have patented how to lose elections, spin narratives internally to maintain some degree of control and make ideology all about the opposition to the other side rather than anything values based. Given the runaway success Florida Democrats have had in maintaining control of a weakened party and pushing business to consultants and campaign professionals who have almost nothing to show on their resume other than General Election losses (but importantly for the maintenance of control, lots of primary wins). I will note that the Democratic response to President Trump’s speech given by Governor Steve Beshear was excellent and perhaps means we will see more emphasis on economic issues and less on identity. But for now the critique of the Democrats remains because Beshear’s response is just an isolated data point until we see more evidence of a shifting Democratic narrative.

The DNC seems to be mimicking the Florida…

View original post 613 more words

Donald Trump and Andrew Jackson: More in common than just populism

U.S. President Donald Trump speaks in front of a portrait of former U.S. President Andrew Jackson. REUTERS/Kevin Lamarque
U.S. President Donald Trump speaks in front of a portrait of former U.S. President Andrew Jackson. REUTERS/Kevin Lamarque

Billy J. Stratton, University of Denver

At President Donald Trump’s request, a portrait of former President Andrew Jackson now hangs in the Oval Office. Commentators have cast Trump’s populist appeal and inaugural address as “Jacksonian,” while others have tried to emphasize their major differences. One writer lauded Jackson as “the president who, more than any other, secured the future of democracy in America.” The Conversation

However, these comparisons overlook experiences of marginalized people while defining history in terms of the ideologies of progress and American exceptionalism.

Jackson’s intolerant attitudes and harsh treatment of African-American and Native American peoples have not gone without mention. They are indeed inescapable. As a scholar who has written about Native American history and literature, I am aware of just how often the perspectives of native people are neglected in conventional historical discourse.

The criticisms Trump has directed against Indian casinos in the 1990s, along with his insult of calling Senator Elizabeth Warren “Pocahontas,” casts his veneration of Jackson in a particularly disturbing light.

Andrew Jackson and the Trail of Tears

Jackson was a staunch supporter of slavery and policies that forcibly removed Indians from their lands. The passage of the 1830 Indian Removal Act was aimed at isolating native peoples to prevent conflict over territory and allow increased settlement.

The solution, originally conceived by Thomas Jefferson, was to empower the government to evict native peoples living east of the Mississippi River from their lands. Those subjected to removal would be moved “beyond the white settlements” to distant reservations in the West, known at the time as “Indian territory.” It was a form of segregation.

R. Ridgway, engraving, c.1859, Muscogee Creek Chief William Weatherford surrenders to Andrew Jackson after the 1814 Battle of Horseshoe Bend. As a result, Jackson forced the Creek to cede over 20 million acres of land in Alabama and Georgia, including almost two million acres claimed by Cherokee Nation, allies who had fought in support of Jackson’s forces.
Library of Congress

In 1832, the Supreme Court struck down Georgia laws aimed at depriving the Cherokee people of their rights and property in Worchester v. Georgia. The court affirmed a degree of native political sovereignty and annulled state jurisdiction over native lands. It was the final case of the so-called Marshall trilogy, named for Chief Justice John Marshall – the author of the majority decisions – and established major precedents of federal Indian law.

The immediate effect of the decision was to grant protections to the Cherokee Nation, and by extension to other tribes. It could have prevented forced removals, but Jackson was reportedly indignant at the result. According to the famed journalist Horace Greeley, Jackson was said to have responded, “John Marshall has made his decision, now let him enforce it.”

Whether Jackson spoke those words has been contested by historians ever since. But his strong support for removal policy and subsequent refusal to enforce the court’s decision made his position clear. The response was a stern rebuke of the legitimacy of the Supreme Court, the doctrine of the separation of powers, the rule of law and ultimately the Constitution.

The result was the Trail of Tears, in which Cherokee and other native peoples of the Southeast were forced at gunpoint to march 1,200 miles to “Indian territory.” Thousands of Cherokee died during the passage, while many who survived the trek lost their homes and most of their property. Ironically, much of the land on which the Cherokee and other removed tribes were settled was opened to homesteading and became the state of Oklahoma some 60 years later.

Yet, the violent manner by which removal was carried out had been ruled illegal and unconstitutional by the Supreme Court in the Worchester case.

New assault on native rights?

The new administration is showing similar malice toward the legal status and rights of native peoples secured in American law. For example, Trump recently lifted President Obama’s injunction halting the construction of the Dakota Access Pipeline. Last week’s eviction of pipeline opponents from Sacred Stone Camp, led by the Standing Rock Sioux Nation, under threats of arrest has led to renewed uncertainty about native rights.

Statements by Trump’s advisers and government officials calling for the privatization of native lands guaranteed by treaties to seize valuable natural resources have only heightened these concerns.

This rhetoric echos policies that oppressed native people in the past. These include allotment, extending from 1887 to the 1930s, which eliminated communal ownership and led to the taking of millions of acres of native land. This was followed by termination and relocation of the 1950s, aimed at eliminating the legal status of native people while sending individuals from reservations to urban areas, further depriving native peoples of their lands, liberty and culture.

Native treaties are unequivocally assured in Article 6, the Supremacy Clause, of the U.S. Constitution. It states: “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”

Tribal leaders negotiated treaties in good faith to reserve what amounts to a fraction of their original lands, with all attendant rights. Privatizing tribal lands would be a violation of these treaties.

The casual rejection of these covenants heighten the insecurity among native people evoked by Trump. His esteem for Jackson and their shared attitudes toward their legal rights and status should give us pause. That journalists and historians continue to offer positive views of Jackson’s presidency in light of this legacy underscores how the suffering of native people continues to be ignored.

Billy J. Stratton, Professor of contemporary American literature and culture; Native American studies, University of Denver

This article was originally published on The Conversation. Read the original article.

Political Scrutiny 101 Top Stories in your inbox. Subscribe.

Red state rural America is acting on climate change – without calling it #climatechange

One primary concern in rural areas: higher temperatures put strain on water and energy sources. AP Photo/Robert Ray
One primary concern in rural areas: higher temperatures put strain on water and energy sources. AP Photo/Robert Ray

Rebecca J. Romsdahl, University of North Dakota

President Donald Trump has the environmental community understandably concerned. He and members of his Cabinet have questioned the established science of climate change, and his choice to head the Environmental Protection Agency, former Oklahoma Attorney General Scott Pruitt, has sued the EPA many times and regularly sided with the fossil fuel industry.

Even if the Trump administration withdraws from all international climate negotiations and reduces the EPA to bare bones, the effects of climate change are happening and will continue to build.

In response to real threats and public demand, cities across the United States and around the world are taking action to address climate change. We might think this is happening only in large, coastal cities that are threatened by sea-level rise or hurricanes, like Amsterdam or New York.

Research shows, however, that even in the fly-over red states of the U.S. Great Plains, local leaders in small- to medium-size communities are already grappling with the issue. Although their actions are not always couched in terms of addressing climate change, their strategies can provide insights into how to make progress on climate policy under a Trump administration.

‘Deliberate framing’

My colleagues and I did a survey of over 200 local governments in 11 states of the Great Plains region to learn about steps they’re taking to mitigate the effects of climate change and to adapt to them. We found local officials in red states responsible for public health, soil conservation, parks and natural resources management, as well as county commissioners and mayors, are concerned about climate change, and many feel a responsibility to take action in the absence of national policy.

In terms of framing, using wind energy is a way to improve local air quality and save money on energy, while also reducing emissions from fossil fuels.
paytonc/flickr, CC BY-SA

But because it is such a complex and polarizing topic, they often face public uncertainty or outrage toward the issue. So while these local officials have been addressing climate change in their communities over the past decade, many of these policy activities are specifically not framed that way. As one respondent to our survey said:

“It is my personal and professional opinion that the conservation community is on track with addressing the issue of climate change but is way off track in assigning a cause. The public understands the value of clean water and clean air. If the need to improve our water quality and air quality was emphasized, most would agree. Who is going to say dirty water and dirty air is not a problem? By making the argument ‘climate change and humans are the cause’ significant energy is wasted trying to prove this. It is also something the public has a hard time sinking their teeth into.”

In order to address the vulnerabilities facing their communities, many local officials are reframing climate change to fit within existing priorities and budget items. In a survey of mayors, we asked: “In your city’s policy and planning activities (for energy, conservation, natural resources management, land use, or emergency planning, etc.) how is climate change framed?” The following quotes give a sense of their strategies.

“In terms of economic benefit & resource protection. This framing was deliberate to garner support from residents who did not agree with climate change.”

“We frame the initiative as: energy savings (=$ savings), as smart growth/good planning, and as common sense natural resource management. Climate change is only explicitly referenced in our Climate Protection Plan adopted in 2009. Most initiatives fall under the “sustainability” umbrella term.“

“We mask it with sustainability, we call it P3 (People, Planet, Prosperity)”

“The initial interest in climate change came about as a result of concern about the potential for poor air quality affecting economic development in the City. Air quality and climate change were framed as being extremely related issues.”

“Climate change is framed as one of several benefits of conservation measures. Other benefits of conservation, recycling, walking, etc. include it’s ‘good for the earth’ (regardless of climate change), healthful, economical, etc.”

The results show that energy, economic benefits, common sense and sustainability are frames that are providing opportunities for local leaders to address climate change without getting stuck in the political quagmire. This strategy is being used across the Great Plains states, which include some of the most climate-skeptical areas of the country.

Local needs and values

Every region of the U.S. will need to address practical questions of how states and local communities can reduce emissions and adapt to climate impacts. Under the Trump administration, it is likely any progress on U.S. climate policy will continue at these subnational levels. That’s why a variety of experts argue that we should encourage the types of pragmatic strategies now being employed by local leaders in red states.

In the Great Plains in particular, local officials are facing severe impacts from higher temperatures, which will place greater demands on water and energy.

Capturing methane gases from landfill can reduce greenhouse gas emissions and be a local source of fuel for power.
Minnesota Pollution Control Agency, CC BY-NC

In our research we found local leaders focus on regional and local issues such as drought, energy and flooding. These are problems that are tied to climate change, but are already a priority on the local level. And the sought-for improvements, such as energy savings, health benefit and flood management, fit well with local needs and values.

For example, Fargo, North Dakota mitigates some of its greenhouse gas emissions and created a new source of city revenue by capturing the methane from its landfill facility and selling that gas to the electricity company. The city trash is now providing renewable energy for local residents and an industrial facility.

Perhaps the question facing us is: Should we reframe climate change and other environmental problems to fit the Trump administration’s priorities with a strong focus on practical solution ideas? For example, Trump has stated that infrastructure projects will be a high priority. That could easily translate into fixing the drinking water crisis experienced by Flint, Michigan and many other cities where it is likely to happen; Trump has also highlighted mass transit, which could help reduce air pollution and carbon emissions.

With an administration eager to expand fossil fuel development and consumption, the outlook for federal action on reducing climate-altering greenhouse gases is dire. Given that, reframing climate change to address cobenefit issues seems a logical strategy, and we can look for local government leaders in red states to show the way.

The Conversation

Rebecca J. Romsdahl, Professor of Environmental Science & Policy, University of North Dakota

This article was originally published on The Conversation. Read the original article.

Political Scrutiny 101 Top Stories in your inbox. Subscribe.

Where is ‘rural America,’ and what does it look like?

The view from Wyoming County, Pennsylvania. Cropped from nicholas_t/flickr, CC BY
The view from Wyoming County, Pennsylvania. Cropped from nicholas_t/flickr, CC BY

Kenneth Johnson, University of New Hampshire

Rural people and issues generally receive little attention from the urban-centric media and policy elites. Yet, rural America makes unique contributions to the nation’s character and culture as well as provides most of its food, raw materials, drinking water and clean air. The recent presidential election also reminds us that, though rural America may be ignored, it continues to influence the nation’s future.

“Rural America” is a deceptively simple term for a remarkably diverse collection of places. It includes nearly 72 percent of the land area of the United States and 46 million people. Farms, ranches, grain elevators and ethanol plants reflect the enduring importance of agriculture.

But, there is much more to rural America than agriculture. It includes manufacturing parks, warehouses and food processing plants strung along rural interstates; sprawling exurban expanses just beyond the outer edge of the nation’s largest metropolitan areas; regions where generations have labored to extract, process and ship coal, ore, oil and gas to customers near and far; timber and pulp mills deep in rural forests; industrial towns struggling to retain jobs in the face of intense global competition; and fast-growing recreational areas proximate to mountains, lakes and coastlines.

As a demographer studying rural America, I have documented both remarkable continuity and dramatic changes in the size, composition and distribution of the population spread across the vast rural landscape.

Where is rural America?

Clearly farms on the Great Plains are rural and the city of Chicago is not, but where is the boundary between what is rural and what is urban? There is no simple answer. The U.S. Department of Agriculture, the federal agency with primary responsibility for rural America, has multiple definitions of what is rural. The Census Bureau has yet another.

I rely upon a widely used USDA definition in which “rural areas” include everything that is outside a metropolitan area. These 1,976 counties were home to 46.2 million residents in 2015.

“Metropolitan areas” include counties with a city of 50,000 residents or more, together with adjacent counties – mostly suburban – closely linked to these urban cores. More than 275.3 million people live in these 1,167 urban counties.

Demographic trends in rural America

More that 90 percent of the U.S. population was rural in 1790. By 1920, that number had dwindled to just under 50 percent. Today, only 15 percent of the population resides in rural counties.

Growing economic and social opportunities in urban areas, coupled with mechanization and farm consolidation, caused millions of people to leave rural areas over the past century. The magnitude of the migration loss varied from decade to decade, but the pattern was consistent: more people left rural areas than arrived.

Hundreds of rural counties have far fewer people today than they did a century ago. In many, young adults have been leaving for generations, so few young women remain to have children. As a result, deaths exceed births in these counties, producing a downward spiral of population decline.

There were brief periods when the rural population rebounded in the 1970s and the 1990s. But, generally, the growth of the urban population throughout the 20th century has far exceeded that in rural areas. Between 2000 and 2015, the rural population grew by just 3.1 percent. Urban areas grew by 16.3 percent.

Hundreds of rural counties continue to lose population, but growth is widespread near urban areas and in recreational areas.
Provided by author

Demographic trends vary across the rural landscape. Rural population gains have been widespread in the west and southeast, at the periphery of large urban areas, and in recreational areas of the upper Great Lakes, the Ozarks and northern New England. Migration, largely from urban areas, fueled this growth. Migrants who venture just beyond the urban edge enjoy the lower density and housing costs of rural areas, but retain easy access to urban services and opportunities. In contrast, urban migrants to rural recreational counties enjoy a relaxed lifestyle in communities rich in scenic and leisure amenities.

In contrast, population losses were common in agricultural regions of the Great Plains and Corn Belt, in the Mississippi Delta, in the northern Appalachians, and in the industrial and mining belts of New York and Pennsylvania. Many people continue to leave these regions because economic and social opportunities are limited.

Recently, the Great Recession and its aftermath disrupted established rural demographic trends. Both immigration and internal migration diminished, as residents were “frozen in place” by houses they couldn’t sell and by a national job market that provided fewer incentives to move. Fertility rates also dropped to record lows during the recession and have yet to recover.

Fewer births diminished population gains in almost all rural areas, but migration patterns varied. Surprisingly, rural places that had once been fast-growing – rural countries adjacent to urban areas and recreational counties – seemed to slow down more. Meanwhile, the remote rural areas that had historically lost many people to migration were less affected, because fewer were willing to risk a move in such uncertain times. It’s not yet clear whether the reduced number of births and diminished migration to rural America in the era of Great Recession will continue.

Other demographic changes are underway in rural America as well. The population is rapidly becoming more diverse. Minorities represent 21 percent of the rural population, but produced 83 percent of the growth between 2000 and 2010. Hispanics are particularly important to this growing rural diversity.

Children are in the vanguard of this change. The rural minority child population has grown significantly recently, while the number of non-Hispanic white children diminished.

The rural population is also growing older. The median age in rural counties is 41.5. That’s already more than three years older than in urban counties. More than 16 percent of the rural population is over 65, compared to 12.5 percent of the urban population. While these older rural residents age in place, young adults continue to leave and the rural child population is diminishing.

Rural and urban America are intertwined

Few people appreciate that the fates of rural and urban America are inextricably linked. Improving the opportunities, accessibility and viability of rural areas is critical – both to the 46 million people who live there and to the much larger urban population that depends on rural America’s contributions to their material, environmental and social well-being. A vibrant rural America broadens the nation’s economic, intellectual and culture diversity.

Yet, rural areas face unique demographic, economic and institutional challenges. Distances are greater and places are more isolated. The advantages derived from businesses and services clustering together are limited. As a result, programs to expand health insurance and reform education may affect rural people and communities differently than in the 50 largest metropolitan areas. Such challenges are frequently overlooked in a policy and media environment dominated by urban interests.

Policymakers need to design comprehensive policies that can address the multifaceted challenges rural communities face. Fast-growing rural counties need programs capable of managing their growth and development.

In contrast, rural areas with diminishing populations need policies to ameliorate the adverse impacts of this migration. Sustained population loss can affect the availability of critical services like health care, education and emergency services. Resources such as broadband, capital and expertise can facilitate new development.

In the wake of the election upset which hinged, in part, on rural voters, more media companies have dispatched correspondents to rural areas. They, and everyone else with a newfound interest in rural America, need to understand that the people, places and institutions in this vast area are far from monolithic. Rural America has been, and continues to be, buffeted by a complex mix of economic, social and demographic forces.

The Conversation

Kenneth Johnson, Professor of Sociology and Senior Demographer, University of New Hampshire

This article was originally published on The Conversation. Read the original article.

Political Scrutiny 101 Top Stories in your inbox. Subscribe.

Long history of political racism in Florida 

Yesterday we discussed the parallels in antisemitic rhetoric between President Trump and President Nixon. Since so much has been made of President Trump’s purported racism, a political history here in Florida is in order. At least a twentieth-century history.

In 1916, Sidney Catts was elected Governor of Florida after being denied the Democratic nomination in a recount. Catts secured the nomination of the Prohibition Party and was elected. Catts talked extensively about political & bureaucratic reform and married that rhetoric with overt racism.

Here is an excerpt from Catts inauguration speech:

“Your triumph is no less in this good hour in beautiful Florida, for you have withstood the onslaughts of the county and state political rings, the corporations, the railroads, the fierce opposition of the press and organization of the negro voters of this state  against you and the power of the Roman Catholic hierarchy against you. Yet over all of these the common people of Florida, the everyday cracker people have triumphed.”

Read more for a political history in Florida…here:

 

Source: A brief history of political racism in Florida | The Florida Squeeze

Netanyahu’s meeting with Trump: Good for Israeli-Palestinian peace?

Trump and Netanyahu participate in a joint news conference on Feb. 15, 2017. P Photo/Pablo Martinez Monsivais
Trump and Netanyahu participate in a joint news conference on Feb. 15, 2017. P Photo/Pablo Martinez Monsivais

Dov Waxman, Northeastern University

At their meeting at the White House today, U.S. President Donald Trump asked Israeli Prime Minister Benjamin Netanyahu to “hold back on settlements for a little bit.”

There are now more than 400,000 Israelis living in over 100 settlements located in the West Bank. Another 300,000 or so are living in East Jerusalem, which Israel has officially annexed. Driven by a powerful combination of religious nationalism, economic incentives and security concerns, the continued expansion of Israeli settlements is one of the main reasons so many seasoned observers of the conflict, myself included, are increasingly pessimistic about the prospects for peace between Israel and the Palestinians.

A source of tension

Israel’s settlement building has long been an irritant in U.S.-Israeli relations. Successive U.S. administrations have opposed it, viewing it as a provocation to Palestinians and an obstacle to a two-state solution to the Israeli-Palestinian conflict.

The Obama administration was particularly vocal and unyielding in its opposition to settlement construction. It insisted that all Israeli settlement building had to stop, whether it was taking place in Jewish neighborhoods in East Jerusalem, in large settlement blocs near Israel’s pre-1967 border or in remote outposts deep inside the West Bank. In fact, the Obama administration’s refusal to officially countenance any settlement building was a source of persistent tension in U.S.-Israeli relations over the past eight years.

The Israeli settlement of Maaleh Adumim looms over Arab Bedouin shacks in the West Bank, Jan. 22, 2017. AP Photo/Mahmoud Illean
The Israeli settlement of Maaleh Adumim looms over Arab Bedouin shacks in the West Bank, Jan. 22, 2017. AP Photo/Mahmoud Illean

The Trump administration, by contrast, looks likely to adopt a more permissive attitude toward Israeli settlements. To be sure, it will not be as tolerant as those on the Israeli right and some on the American right initially hoped it would be.

During the presidential election campaign and before taking office, Trump and some of his advisers indicated that he was supportive of Israeli settlement building. Trump had even given money to the settlement of Beit El, and his designated ambassador to Israel, David Friedman, has raised millions of dollars for it. Buoyed by such high hopes, Naftali Bennett, the leader of the right wing Jewish Home Party which draws much of its support from Israeli settlers, triumphantly declared after Trump’s election victory: “The era of a Palestinian state is over.”

A few weeks into his presidency, however, it is becoming clear that such triumphalism was premature. Trump has expressed a desire to make in his words “the ultimate deal” and broker a peace agreement between Israel and the Palestinians. That will inevitably involve the establishment of a Palestinian state – even if the Trump administration doesn’t explicitly insist upon this. Trump has also stated in a recent interview with an Israeli newspaper that settlements are not “a good thing for peace,” and “every time you [Israel] take land for a settlement, there is less land left [for Palestinians].”

Trump will probably work out an agreement with Netanyahu that will allow Israel to build in the large blocs of settlements that it plans to keep in any peace deal and eventually annex. Such an agreement, similar to one reached in 2004 between President Bush and then-Israeli Prime Minister Ariel Sharon, will benefit both Trump and Netanyahu, and remove a source of controversy and conflict in the relationship between the United States and Israel.

But although it will be good for U.S.-Israeli relations, it will do nothing to improve Israeli-Palestinian relations. If anything, it will only further damage an already destructive relationship. After all, the land on which Trump will allow Israel to expand its settlements is land that the Palestinians regard as rightfully theirs.

There is something seriously amiss when an Israeli leader is interested only in reaching an agreement with an American president, rather than with his Palestinian neighbor. While gaining American acquiescence for future Israeli settlement building is certainly useful for Netanyahu, it is ultimately the Palestinians who must consent to Israel’s plan to eventually annex the large settlements, probably in exchange for an equivalent amount of land from within Israel’s pre-1967 borders.

The Trump administration cannot confer legitimacy on Israel’s settlements. Nor is it entitled to give Israel permission to build on land that the international community, international law and the Palestinians themselves regard as “occupied Palestinian territory,” that might eventually become part of a future Palestinian state.

Sadly for the Palestinians, they are in no position to stop Israel from building in the West Bank and East Jerusalem. They can only watch helplessly from afar as Israel and the United States decide on what happens to their land.

Nothing demonstrates more clearly the weakness of the Palestinians and the failure of their leadership to achieve their national aspirations. While the Palestinians and their leaders are no doubt partially responsible for their relative powerlessness, the Netanyahu government has done little, if anything, to bolster the Palestinian authority in the West Bank. While Netanyahu flatters and courts Trump, he largely ignores Palestinian President Mahmoud Abbas. Surely, if Israel is ever to make peace with the Palestinians, the prime minister of Israel should also focus on trying to talk with his Palestinian counterpart, and overcoming the latter’s resistance to such talks.

Whatever agreement concerning settlements Trump and Netanyahu might reach, it will not help to move Israel and the Palestinians any closer to a peace agreement.

The Conversation

Dov Waxman, Professor of Political Science, International Affairs and Israel Studies, Northeastern University

This article was originally published on The Conversation. Read the original article.

Subscribe to our mailing list

How will Native Tribes Fight the Dakota Access Pipeline in Court?

After the Army Corps of Engineers approved an easement for the North Dakota Pipeline, two tribes requested – unsuccessfully – to halt construction while their lawsuit over the project is resolved. AP Photo/Susan Walsh
After the Army Corps of Engineers approved an easement for the North Dakota Pipeline, two tribes requested – unsuccessfully – to halt construction while their lawsuit over the project is resolved. AP Photo/Susan Walsh

Monte Mills, The University of Montana

On Feb. 8 the U.S. Army Corps of Engineers reversed course and issued an easement allowing the installation of the Dakota Access Pipeline under Lake Oahe in North Dakota. That decision followed a presidential memorandum indicating that construction and operation of the pipeline would be in the “national interest,” and set the stage for a final showdown over the pipeline’s fate.

In response, two Indian tribes, the Standing Rock and Cheyenne River Sioux, filed new motions to halt the pipeline’s construction and operation. After an initial hearing on those motions, the federal judge on the case allowed construction to proceed but will be considering the Tribes’ claims before oil will pass through the pipeline under Lake Oahe. That means, unlike the voices of thousands who joined the Standing Rock Sioux Tribe in protest against the pipeline, the next chapter of this fight will be argued by a few lawyers in the pin drop silence of a federal courtroom.

Although the details of those arguments will be complex, as a legal scholar focused on Native American law I see the case addressing an essential question at the heart of our legal system: namely, how does federal law and judicial process protect the fundamental values and structure of the Constitution?

The central issues in the case are now whether the U.S. Army Corps of Engineers’ approval of the pipeline and easement illegally interferes with the tribes’ religious beliefs and whether the corps adequately considered the tribes’ water and other treaty rights before issuing that approval.

Religious Freedom and Restoration Act

According to the Cheyenne River Sioux Tribe, oil running through the pipeline would represent the fulfillment of a generations-old prophesy, passed down through the oral traditions of tribal members, that warned of a Black Snake coming to defile the sacred waters necessary to maintain the tribes’ ceremonies. Beyond the environmental concerns often at the center of the pipeline protests, the tribe’s motion for an injunction squarely defines final authorization of the pipeline by the Corps as an existential threat: destruction of the tribes’ religion and way of life.

One of the key legal questions in the North Dakota Access Pipeline case whether federal interests can supersede religious freedoms of native groups.
vpickering/flickr, CC BY-ND

The Constitution’s First Amendment guarantees the exercise of religion free from governmental interference. But the Supreme Court, in Lyng v. Northwest Indian Cemetery Protection Association, in 1988 upheld the Forest Service’s approval of a road across an area on federal land sacred to local tribes even while recognizing the road could have devastating effects on their religion.

Then in 1993, Congress enacted the Religious Freedom and Restoration Act (RFRA), which requires that the government demonstrate a compelling interest and use the least restrictive means to achieve that interest if its actions will substantially burden religious practice.

In other words, even if approving the Dakota Access Pipeline served a compelling governmental interest, RFRA may require the U.S. Army Corps of Engineers to show that the pipeline easement under Lake Oahe would have the least impact on tribal religion. That approach would be consistent with the Supreme Court’s broad application of RFRA in a 2014 case not involving tribal interests or federal lands and may pose a significant challenge to the corps, which considered but rejected a different route that did not pose the same threat to the tribes.

Both the Corps and company behind the Dakota Access Pipeline argue that the risk of spill from the pipeline is minimal and that the tribes failed to raise these religious concerns in a timely manner. In addition, the Corps contends that, consistent with the Lyng case, governmental action on federal land should not be restricted because of religious concerns raised by local tribes.

Thus, resolution of the case will turn upon whether the court recognizes the legitimacy of the tribal religious concerns and broadly applies RFRA or, instead, chooses to prioritize federal authority over federal land to the detriment of those concerns. The parties will argue whether the religious freedom issues support an injunction on February 27.

Arbitrary or capricious decisions?

In addition to their religious concerns, the Sioux Tribes challenge the Corps’ decisions based on the rights they reserved in treaties made with the federal government in 1851 and 1868.

The Constitution recognizes treaties as the “supreme law of the land” and, according to a 2016 analysis done by the Solicitor of the U.S. Department of the Interior, both the Standing Rock and Cheyenne River Sioux retain treaty-reserved water, hunting, and fishing rights in Lake Oahe.

The pipeline company has argued that the risks to the water supply are minimal and that the tribes didn’t raise religious concerns earlier in the approval process.
diversey/flickr, CC BY-NC-SA

Before reversing course in February, the Corps refused to issue the easement last year in order to further understand and analyze those treaty rights.

Importantly, federal law generally allows courts to set aside arbitrary or capricious agency decisions. In a February 14th filing, the Standing Rock Sioux Tribe asks the court to review the Corps’ about-face under that standard and argues that the federal trust responsibility,recognized by the Supreme Court since the early 1800’s, demands more than just a cursory review of tribal treaty rights.

The parties will be briefing the treaty rights issues into March but the judge is keeping a close eye on Dakota Access’ progress in the meantime.

The ultimate fate of the pipeline will turn on how the courts recognize the rights asserted by the Sioux Tribes, rights rooted in the Constitution’s values and structure – precisely the type of rights our rule of law and federal courts are meant to protect.

The Conversation

Monte Mills, Assistant Professor of Law & Co-Director, Margery Hunter Brown Indian Law Clinic, The University of Montana

This article was originally published on The Conversation. Read the original article.

Subscribe to our mailing list

 follow on Twitter | friend on Facebook | read our blog | forward to a friend