“Thus in the Beginning All the World Was America”: The Effects of Anti-Protest Legislation and an American Conquest Culture in Native Sacred Sites Cases

American Indian Law Review Volume 44 Number 2 2020 “Thus in the Beginning All the World Was America”: The Effects of Anti-Protest Legislation and an American Conquest Culture in Native Sacred Sites Cases Elizabeth Hampton Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons Recommended Citation Elizabeth Hampton, “Thus in the Beginning All the World Was America”: The Effects of Anti-Protest Legislation and an American Conquest Culture in Native Sacred Sites Cases, 44 AM. INDIAN L. REV. 289 (2020), https://digitalcommons.law.ou.edu/ailr/vol44/iss2/4 This Comment is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . “THUS IN THE BEGINNING ALL THE WORLD WAS AMERICA”:1 THE EFFECTS OF ANTI-PROTEST LEGISLATION AND AN AMERICAN CONQUEST CULTURE IN NATIVE SACRED SITES CASES Elizabeth Hampton* I. Introduction The United States remains the global leader for energy and raw materials pipeline networks, maintaining over 2.6 million miles of liquid, gas transmission, and gas distribution pipelines. 2 Though economically lucrative, the industry is not without controversy. Since time immemorial, the energy sector has received harsh criticism for the environmental impact of these pipeline networks and their proximity to communities and homes in the United States. More recently, however, protests have erupted against pipeline construction causing the desecration of numerous tribal religious and sacred sites. Construction resulting in such defilement has caused national opposition to the energy industry’s actions and support for the affected Native American tribes. In response to these protests, the United States and numerous state governments have introduced legislation criminalizing damage to, and even merely an attempt or intent to interfere with, pipeline construction and operation. Most recently, Texas Governor Greg Abbott signed the Critical Infrastructure Protection Act into law in June 2019.3 The Act charges a felony against an individual who damages property or interferes with the operations of critical infrastructure such as pipelines, dams, and petrochemical plants.4 Proponents of the Texas Act cite instances of arson and gun violence at pipeline facilities to show the alleged need for this law. 5 1. JOHN LOCKE, TWO TREATISES OF GOVERNMENT bk. II, ch. 5, § 49 (1690), http://press-pubs.uchicago.edu/founders/documents/v1ch16s3.html. * Third-year student, University of Oklahoma College of Law. 2. General Pipeline FAQs, DEP’T OF TRANSP.: PIPELINE & HAZARDOUS M ATERIALS SAFETY ADMIN., https://www.phmsa.dot.gov/faqs/general-pipeline-faqs (last visited Nov. 19, 2019). 3. See H.B. 3557, 86th Leg., Reg. Sess. (Tex. 2019). 4. See id. § 2. 5. Audiovisual: Testimony of Al Philippus, Public Hearing on H.B. 3557 Before the Judiciary & Civil Jurisprudence Comm., Tex. H.R. 86th Leg. Sess. (Mar. 25, 2019) (on file with author). 289 Published by University of Oklahoma College of Law Digital Commons, 2020 290 AMERICAN INDIAN LAW REVIEW [Vol. 44 Additionally, a new U.S. Department of Transportation proposal seeks to broaden the type of energy projects protected, as well as the activities subject to criminal prosecution, under existing federal law. 6 On the surface, such legislation seems to protect energy and raw materials infrastructure, but a closer look into the legislative history reveals the laws’ blatant objective of preventing pipeline justice movements from challenging energy use and facility construction. The growing body of pro-pipeline legislation acts as a fear tactic against groups with grievances similar to those of the Standing Rock Sioux Indian Reservation.7 The Standing Rock Reservation is home to the Standing Rock Sioux Tribe, which has actively opposed the Dakota Access Pipeline’s construction from its proposal in 2014 until its halted development in September 2016.8 The Tribe opposed the project because of the government’s disregard for the pipeline’s proposed route; though the line would travel underground through public land one-half of a mile from the reservation’s border, it would cross through the Tribe’s water source and a variety of its sacred sites.9 While the Standing Rock Tribe does not have legal title to the land, the sites along the pipeline’s path of construction contain sacramental burial grounds and other areas of religious and cultural significance. 10 Surrounding the reservation, protests erupted as a result of the United States’ disrespect for these sites, 11 which ultimately gave rise to North Dakota initiating litigation against the federal government for its failure to contain the protests and the participants’ presence on federal, state, and private property.12 State legislation introduced after the Standing Rock protests targeted tribal communities and discouraged them from exercising their rights under the First Amendment and American property law. But the United States’ acquiescence to actions that “legitimize[] the conquest and colonization of 6. Keith Goldberg, DOT Plan Would Lower Criminal Boom on Pipeline Protests, LAW360 (June 3, 2019, 4:21 PM), https://www.law360.com/articles/1165206/dot-planwould-lower-criminal-boom-on-pipeline-protests. 7. Naveena Sadasivam, Mess with a Texas Pipeline Now and You Could End Up a Felon, GRIST MAG. (June 17, 2019), https://grist.org/article/mess-with-a-texas-pipeline-nowand-you-could-end-up-a-felon [hereinafter Sadasivam, Texas Pipeline]. 8. History, STAND WITH STANDING ROCK, https://standwithstandingrock.net/history/ (last visited Sept. 19, 2019) [hereinafter Standing Rock History]. 9. Id. 10. Id. 11. See id. 12. Complaint at 1, North Dakota v. United States, No. 1:19-cv-00150-DLH-CRH (D.N.D. July 18, 2019). https://digitalcommons.law.ou.edu/ailr/vol44/iss2/4 No. 2] COMMENTS 291 Native lands” dates back to the Supreme Court’s decision in Johnson v. M’Intosh.13 Applying the discovery doctrine, 14 the Johnson Court “redefined indigenous lands as an object to be conquered and exploited” rather than preserved and protected.15 Johnson created a judicial framework that overrides tribal property rights and discourages tribal opposition to the taking of tribal land. Though a site on federal land may have historical and cultural value to a tribe, numerous courts will not afford the site protection under the First Amendment’s speech, assembly, and exercise of religion provisions unless the land is sufficiently central to the tribe’s religion. 16 Further, government activities that destroy parts of tribal religion, such as building roads through tribal ceremonial sites, are permissible so long as they do not coerce tribal members into acting contrary to their religious beliefs. 17 Historically, Indian nati (...truncated)