This article explores tribal sovereignty through the lens of the Standing Rock Sioux and its opposition to the DAPL. The DAPL situation is a symptom of the larger problem of a lack of tribal consultation, which diminishes tribal sovereignty and tribal rights.
Part I discusses the history of tribal sovereignty through an explanation of the domestic dependent status of Indian tribes and the two historic canons of Indian treaty interpretation. The Court’s interpretation and application of these canons in the cases of Winters, Dion, and Bourland have a direct relation to the amount of protection given to Indian tribes.
Part II provides a brief history of the Fort Laramie Treaty that created the Standing Rock Sioux Reservation and a factual background for the DAPL protests and legal battles. Part III then proposes the revitalization of a treaty-based system for U.S.-Indian relations and outlines how a treaty might be drafted, using the United Nations Declaration on the Rights of Indigenous People (“UNDRIP”) as a framework. It then discusses the benefits of a treaty-based system to Indian tribes and how each branch of government would be involved in this new treaty-based system.
The Unseen Harm: U.S.-Indian Relations & Tribal Sovereignty, 48 Golden Gate U. L. Rev. 185