In a move highlighting the ongoing struggle against the Keystone XL Pipeline, the Lower Brule Lakota Sioux Tribe of South Dakota took a significant step in April 2015. The Oceti Sakowin, also known as the Great Sioux Nation, asserted its treaty rights by invoking the "Bad Men" clause of the 1868 Fort Laramie Treaty. This clause, a rarely used provision, stipulates that the U.S. Government is obligated to "proceed at once to cause the offender to be arrested and punished according to the laws of the United States" if "bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians." In this instance, the tribe identified TransCanada, the foreign tar sands pipeline company behind the Keystone XL project, as the offending party. The Lakota Sioux Tribe Invokes ‘Bad Men’ Treaty Clause.
The invocation of this clause represents a strategic legal maneuver intended to significantly impede the progress of the Keystone XL Pipeline. The tribe asserts that the treaty provision effectively renders approximately 40% of South Dakota off-limits to TransCanada’s operations. This area encompasses not only the proposed pipeline route itself but also crucial access points for transmission lines, potentially crippling the project’s feasibility.
The press release issued by the Lower Brule Lakota Sioux Tribe made a clear and forceful demand: the enforcement of the "Bad Men" clause against TransCanada. This demand underscores the tribe’s determination to protect its ancestral lands and treaty rights from what they perceive as the detrimental impact of the pipeline. The press release explicitly stated that "roughly 40% of South Dakota is off limits to TransCanada," emphasizing the geographical scope and potential ramifications of their legal challenge.
The 1868 Fort Laramie Treaty, a cornerstone of the tribe’s claim, was negotiated under the auspices of General Sherman. While the "Bad Men" clause has been part of the legal framework for over a century, its successful application has been exceedingly rare. Historical analyses, such as one published in the Harvard Law Review and poignantly titled A Bad Man Is Hard To Find, have documented the clause’s limited efficacy. These analyses point to a single, albeit recent, instance of successful invocation.
The case of Lavetta Elk stands as a beacon of hope for those seeking to utilize the "Bad Men" clause. As the only known victor in such a case, Elk’s success in 2009 provides a precedent, however slim, for future legal challenges. The Harvard Law Review report suggests that the Elk case could potentially pave the way for more successful applications of the clause, breathing new life into a long-dormant legal avenue.
The report highlights the historical context of the "Bad Men" provisions, noting that nine treaties concluded between the United States and various Indian tribes in 1867 and 1868 contain similar clauses. These provisions represent a commitment by the United States to compensate Native Americans for injuries sustained due to the actions of "bad men among the whites, or among other people subject to the authority of the United States." While largely unused for over a century, these clauses remain a potential source of legal recourse for tribes who signed the treaties.
Lavetta Elk’s landmark case involved an action for damages under the Fort Laramie Treaty of 1868. She successfully recovered a judgment of nearly $600,000 from the United States government in the Court of Federal Claims. This victory, achieved after a full trial on the merits, distinguishes Elk as the sole plaintiff to have successfully navigated the complex legal landscape of "Bad Men" clause litigation.
The Lakota Sioux Tribe Invokes ‘Bad Men’ Treaty Clause as part of a larger, ongoing effort to resist the encroachment of Canadian tar sands projects, particularly the fourth and final phase of the Keystone XL Pipeline. The Sioux Nation has been a prominent voice in the opposition to these projects, raising concerns about environmental degradation, threats to water resources, and the disruption of sacred sites. The resistance extends beyond legal challenges, encompassing public demonstrations and alliances with other indigenous groups and environmental organizations.
One such demonstration, the Cowboy and Indian Alliance, brought together Native American activists and ranchers in Washington D.C. to protest the Keystone XL Pipeline. This alliance symbolized the broad opposition to the project, uniting diverse groups who share concerns about its potential environmental and economic impacts.
Acting Chairman Kevin Wright of the Lower Brule Sioux Tribe articulated the tribe’s motivation for invoking the "Bad Men" clause. He cited the "death, devastation, and destruction" inflicted upon Canadian First Nations people by the Alberta tar sands project as a primary concern. The tribe views the Keystone XL Pipeline as a potential catalyst for similar harm to their own lands and communities.
The press release issued by the Lower Brule Lakota Sioux Tribe also called for the "immediate removal of TransCanada from the aboriginal and territorial treaty boundaries of the Oceti Sakowin, also known as The Great Sioux Nation." This demand underscores the tribe’s desire to assert its sovereignty and protect its treaty rights from what it perceives as the encroachment of a foreign corporation.
The Bureau of Indian Affairs (BIA) was contacted for comment on the potential enforcement of the treaty clause and the logistics of removing TransCanada from the affected territory. However, the BIA was not available to answer questions, leaving the practical implications of the tribe’s legal challenge uncertain.
The full text of the Lower Brule Lakota press release, issued on April 29, 2015, provides further insight into the tribe’s motivations and demands. The press release explicitly rejects the Keystone XL Pipeline, citing the unethical business practices of TransCanada and the potential for environmental and cultural harm.
The press release quotes Acting Chairman Kevin Wright, who emphasized the tribe’s concern for the land, water, and the physical and spiritual well-being of its people. Wright stated that the tribe’s decision was based on firsthand accounts and disheartening stories from Canadian First Nations, who have experienced the negative impacts of tar sands extraction and pipeline construction. He further asserted that corporations like TransCanada are attempting to cross treaty lands without the consent of the Oceti Sakowin, and that the tribe views them as "Bad Men" as defined by the treaties with the United States government.
The tribe’s statement also expresses solidarity with other members of the Oceti Sakowin who have taken a strong stance against the Keystone XL Pipeline. The tribe contends that the South Dakota Public Utility Commission hearings are an attempt to diminish tribal sovereignty and that the Department of Interior and State Department should have consulted with the Oceti Sakowin when TransCanada first proposed the project, given the unique government-to-government relationship established by the 1868 Fort Laramie Treaty.
The press release notes that Department of the Interior Secretary Jewell had previously stated her commitment to providing tribes with a platform to address issues related to Keystone XL. However, the tribe alleges that the Department of Interior has since denied meeting with South Dakota Tribal Nations regarding this issue.
President Wright concluded the press release by appealing to President Obama to stand alongside the Oceti Sakowin and reject the Keystone XL Pipeline. He emphasized the importance of preserving the land for future generations and expressed encouragement by President Obama’s stance on climate change and support for indigenous youth.
The Lakota Sioux Tribe Invokes ‘Bad Men’ Treaty Clause represents a complex interplay of legal strategy, treaty rights, environmental concerns, and indigenous sovereignty. The outcome of this legal challenge remains uncertain, but it serves as a powerful reminder of the ongoing struggle between Native American tribes and corporations seeking to develop natural resources on ancestral lands. The Lakota Sioux Tribe Invokes ‘Bad Men’ Treaty Clause and hope to protect the land.