Law | Opinion

Steve Russell: Federal Indian law and the Dakota Access Pipeline






Youth from the Standing Rock Sioux Tribe show their opposition to the proposed Dakota Access Pipeline. Photo from Facebook

Steve Russell, a member of the Cherokee Nation, offers the first installment of a series about federal Indian law and the fight against the Dakota Access Pipeline:
In the U.S., allegedly a common law country, the Supreme Court has made us a gift called federal Indian law. It appears in the early 19th century from the fertile imagination of Chief Justice John Marshall and attaches itself to the smooth symmetry of the common law like some ugly cancerous growth.

The only things federal Indian law has in common with the common law are that title to land is at the base of it, and that title is conferred by a European king. It is in this land of John Marshall’s imagination that the Standing Rock Sioux and their allies are having a legal encounter of the third kind.

Many people, particularly those not prosperous enough to keep a lawyer on speed dial, live out their whole lives without any direct contact with the legal system. They never enter the courthouse except maybe to serve jury duty or deliver a pizza.

Most people are restricted to legal encounters of the first kind, straightforward applications of valid law by persons with proper authority. The Congress, the state legislature, the board of supervisors, the city council---somebody with authority makes a law and when a person is accused of violating the law he or she comes to the courthouse for a procedure to decide if the law was violated and, if so, what the consequences ought to be, if any.

Read More:
Steve Russell: Dakota Access Pipeline, Part 1: Legal Encounters of the First Kind (Indian Country Today 95/)

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