Commentary on Schaefer Riley’s Column on the DAPL Case

Written by: Matthew Fletcher

Primary Source : Turtle Talk, September 27, 2016

Naomi Schaefer Riley offered commentary on the Dakota Access Pipeline matter in her regular column in the New York Post, “How the Standing Rock Sioux should have been able to stop that pipeline.” This column continues NSR’s mockery of Indian peoples’ economic and cultural interests expressed in The New Trail of Tears.

The lead says it all:

Quick quiz: What’s the best way to stop a company from building an oil pipeline on a piece of land you find valuable? Answer: Buy the land.

Assuming that the Standing Rock Sioux Tribe and other affected tribes had the resources to do so, it probably wouldn’t have mattered — energy companies usually just confiscate the land under their delegated power of eminent domain, as Dakota Access has. Sure, property ownership helps, but in the end, the law is tipped in the pipeline companies’ favor.

NSR cites to the Mormons (huh?) in a strange fictional scenario, and the friends of Langston Hughes in a more realistic scenario, who could purchase cultural property that might otherwise be destroyed through development:

But the results haven’t been satisfactory to the tribe. So let’s imagine a different scenario — in which any group of people in the United States wanted to block development on a certain site. Perhaps it’s the Mormons who hear a skyscraper will be going up in the place where Joseph Smith saw the golden tablets.

Or take a real-life example: The home where the poet Langston Hughes once lived is up for sale. A group of people want to turn it into a museum. In order to do so they’re raising money to buy the building from its current owner.

A pipeline developer’s power of eminent domain would wipe all that out. Really, the only thing that could stop the exercise of that power by an energy or utility company is tribal trust property, the very thing NSR criticizes as “dead capital,” to borrow Hernando de Soto’s phrase. Inspired by de Soto, NSR recommends (in a massive non sequitur) confiscating tribal trust property (never mind the Fifth Amendment’s takings clause) and awarding that property to individual Indians (much like she does in TNToT). The US tried that when it was called allotment and then again when it was called termination — both failed miserably. Peru tried it, too, following de Soto’s recommendations. Was it successful? Not so much. Other countries too (quoting from a Slate article that described the failures):

Reports from Turkey, Mexico, South Africa, and Colombia suggest similar trends. “In Bogota’s self-help settlements,” writes Alan Gilbert, a London professor of geography who has done extensive research on land issues in Colombia and other parts of Latin America, “property titles seem to have brought neither a healthy housing market nor a regular supply of formal credit.”

Indian country is the subject of a lot of predatory lending and redlining — NSR’s ideas very likely would mean massive windfalls for businesses exploiting poor people (kinda like Donald Trump’s claim that profiting from poor people in the housing crisis is “good business” in last night’s debate). Something tells me NSR doesn’t have the best interests of Indian people in mind.

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Matthew Fletcher
Matthew L.M. Fletcher is Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He is the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, located in Peshawbestown, Michigan. In 2010, Professor Fletcher was elected to the American Law Institute.