The Great Sioux Nation v. the "Black Snake": Native American Rights and the Keystone XL Pipeline

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 at- tempted to obtain this approval unsuccessfully. Criticism against the Pipe- line 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 pro- ject. 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 nega- tively affected by the Keystone XL Pipeline-the Sioux Nation.\nThe Pipeline was 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" threatened not only the environment of the Sioux lands, but also sites sacred to the tribes. The Sioux Nation had risen up in defense of their lands, and their right to free, prior and informed consent (FPIC) before the state could undertake projects on their indige- nous lands. While the U.S. government maintains it complied with domestic standards regarding Indian consultation and with its perverse interpreta- tion of the right to FPIC protected under the U.N. Declaration of the Rights of Indigenous Peoples, its actions fell drastically short of those expected by the United Nations and required by the Inter-American Human Rights Sys- tem. This paper argues that under the American Declaration on the Rights and Duties of Man, the U.S. should have obtained the fully informed con- sent of the Sioux Nation before approving the Keystone XL Pipeline.

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