Erstwhile contributing editor Alessandra Link reveals disturbing parallels between the present-day Dakota Access Pipeline controversy and the long history of covert corporate maneuvering in Indian Country. While mainstream media outlets focus on the legal conflict between the Standing Rock Sioux and the federal government, the oil company itself has slid beyond wide public recognition. Link suggests that there is a historical model for this kind of corporate activity in the machinations of nineteenth-century railway corporations.

Over a century ago, a whiskered Grenvile M. Dodge reflected on the completion of one of the nation’s largest construction projects: the building of the transcontinental railroad. The iron road stretched from Council Bluffs, Iowa, 1,900 miles to Sacramento, California, through an untold number of Indigenous sacred sites and treasured hunting grounds. Dodge was the Chief Engineer of the Union Pacific (UP), one of two private companies charged with construction. He lauded the efforts of UP employees but also highlighted the central role of another organization. “From the beginning to the completion of the road,” he wrote in his 1870 account, “our success depended in great measure on the cordial and active support of the army.”[1] Dodge, a company official with a military background of his own, was aware that many Indigenous communities in the Trans-Mississippi West would consider his construction outfit an invading army. With that in mind, he prepared for battle, ensuring that each crew was accompanied by a squad of cavalrymen and a cache of rifles. Backed by government forces, Dodge and his men entered Indian Country armed to the teeth. This was no ordinary construction project.

Yesterday, a construction site near Cannon Ball, North Dakota, bore similar markers of militarization. State police officers toting military-style weapons and riot gear approached a group of Indigenous activists praying for the protection of the Missouri River. The police arrested several Native American protectors (a moniker they prefer to “protestors”) near their Sacred Stone Camp. Cannon Ball nearly erupted in violence. The scenes in North Dakota call to mind the countless confrontations between armed government agents and Native peoples that populate our nation’s history.

But Dodge, a corporate employee, reminds us that there is another critical player in their midst—one that Standing Rock Sioux Chairman David Archambault II called out in his  U.N. address last week. Archambault II took aim at one actor in the ongoing Dakota Access Pipeline (DAPL) controversy that lurks in the background of mainstream media reports. “I am here,” he declared, “because oil companies are causing the deliberate destruction of our sacred places and burials. Dakota Access wants to build an oil pipeline under the river that is the source of our nation’s drinking water.” A subterranean causeway for shale oil, the proposed pipeline would carry blackened sludge from North Dakota oilfields 1,100 miles to an Illinois riverport, where it would be shipped to refineries across the nation. Dakota Access, a subsidiary of Texas-based Energy Transfer Partners, finances the route and shows no signs of halting construction. As Archambault II sought allies last week in Switzerland, corporate executives in Texas were gathering funds to purchase a 9,000-acre ranch adjacent to the federal lands at the heart of the pipeline controversy. This is the latest move in a yearlong struggle over the pipeline’s proposed route, but it is also part of a much longer history of corporate encroachments in Indian Country.

 

 

Dakota Access’s recent land grab has received far less coverage than the legal case pitting the Standing Rock Sioux against the federal government. The Standing Rock peoples charge that the Army Corps of Engineers—the federal agency tasked with approving the construction of interstate pipelines—failed to consult with the tribe about the proposed route. The disputed strip of land runs along the Missouri River near the Standing Rock Reservation. Tribal members point out that a potential pipeline leak could damage their water supply at nearby Lake Oahe. And beyond the very real environmental risk, a cultural calamity is in motion. The tribe has marshaled evidence of a significant burial site entombed beneath the contested grounds, a sacred place that Dakota Access construction workers have already damaged during construction. By law, places of “religious and cultural significance” on a proposed federal construction site require consultation with tribal governments, whether on or off of reservations. Dakota Access’s purchase last week suggests that the company plans to circumvent these legal entanglements and continue construction nearby—in the path of still other sacred burial grounds.

Robinson Meyer of the Atlantic elaborates more on the merits of the Sioux’s legal case, and the federal government’s potential violations of the Clean Water Act and the National Environmental Policy Act. Others have rightly placed this controversy within broader conversations about tribal sovereignty and environmental racism. But these stories tend to paint the DAPL saga as a largely two-sided confrontation between the federal government and the Standing Rock Nation, with Dakota Access acting as “Fifth Business.”[2] In theater circles, “Fifth Business” characters color the backdrop of a given narrative, but they rarely have speaking roles. Environmentalists have lashed out at the company, the chief profiteers of a fossil fuel infrastructure that stymies broad-based shifts towards alternative energy use nationwide. But Archambault II’s comments gesture towards the corporation’s long and often fraught history of operations in Indian Country.

 

 

When it comes to development on or near Indigenous lands, tribal governments have to contend with both corporate officials and government bureaucrats. The rules of engagement in these situations are far from clear, making it easy for corporations to skirt laws and, often, tribal consent. These legal and jurisdictional uncertainties create situations where corporations run roughshod over Indigenous lands, resources, and sacred sites. This has been the case since the beginning of big business in America. Some of the earliest corporations, nineteenth-century railway companies, took advantage of unclear jurisdictional and legal frameworks when claiming lands, slashing trees, and siphoning water to sustain their steam-powered beasts.

“Fifth Business,” then, not only describes the nature of mainstream DAPL media coverage but also points to the guileful, muted nature of corporate positioning in Indian Country. Corporate entities skirt center stage, electing instead to operate behind the scenes in ways that minimize legal and public attention. Today, Dakota Access remains relatively quiet amidst the DAPL controversy, allowing the federal government to bear the weight of the dilemma. Much the same can be said of the actions of the Denver and Rio Grande railway company (D & RG) in the early 1880s. After railway surveyors entered Southern Ute lands in southeastern Colorado, tribal leaders demanded a meeting with D & RG officials. When news of Southern Ute unrest reached corporate leaders, company president W.J. Palmer wrote to the acting Indian Commissioner. “We have not yet begun construction on the reservation,” Palmer explained, adding that he was “not aware that it was expected that we treat with the Indians.” He added that the company would prefer not to discuss the matter with tribal leaders, “for fear of complicating the situation.”[3]

A year passed, and Southern Utes continued their protests. Writing to the Commissioner of Indian Affairs, the local Indian Agent explained that the Utes “desire to know by what treaty stipulation said road obtained right of way, who said or gave away that much of their land without their consent.” Ute leaders added that they “never received a cent for the land.”[4]

President Rutherford B. Hayes ultimately granted D & RG access to Ute lands based on an 1868 treaty with the tribe that allowed the U.S. president to authorize the construction of “all roads, highways, and railroads,” in the name of “public interest.”[5] In the Southern Ute case, “public interest” aligned closely with corporate interests, at the expense of Ute territorial sovereignty. This kind of collusion between the federal government and corporate elites was nothing new in Gilded Age America and it would have devastating consequences for many Native and non-Native communities.

But these corporate machinations did not take place without resistance. The intertribal congregation at Sacred Stone Camp draws on a longstanding Indigenous tradition of contesting corporate development projects. Reports of Native Americans unearthing rail ties, raiding construction sites, and halting survey crews were common in the mid- to late-nineteenth century. Take Spotted Horse (Crow), who rode to an encampment of Northern Pacific Railway surveyors and demanded that they depart Crow lands at once.[6] When these public displays of resistance failed, Native individuals and communities took to U.S. courts in unprecedented numbers. In 1890 the Cherokee Nation’s lawsuit against the Southern Kansas Railway Company reached the Supreme Court. Chief Bushyhead (Cherokee) argued that U.S. Congress had disregarded Indigenous rights by granting the railroad a right of way and negotiating damages with the company without Cherokee involvement. Although the Cherokee did not win the case, more and more communities began challenging corporate interests in court.[7] Native peoples cut their teeth in the U.S. legal system with these kinds of cases, which would become a cornerstone of Indigenous activism in the twentieth and twenty-first centuries.

Indigenous Americans also adopted the corporate model to protect their individual and tribal interests. Mathias Splitlog (Wyandotte) intended to profit off of the railroad boom when he chartered his own company—the Splitlog Railway Company—in the 1880s.[8] Most famously, the Native American Church applied for nonprofit corporate status within the state of Oklahoma in October of 1918, which gave followers of the intertribal Peyote Religion critical First Amendment protections in their ongoing battle to continue peyote use in sacred ceremonies.[9]

These incidents only scratch the surface of the complex history of corporations in Indian Country. The nefarious operations of many U.S. corporations spurred Indigenous communities to take action as protectors and legal claimants. We can witness the legacy of this activism in the cluster of teepees, tents, and automobiles congregated along the Missouri River in North Dakota, and in the courtrooms hosting the Standing Rock litigants. And despite Dakota Access’s best efforts to play “Fifth Business,” the company’s actions (and inactions) warrant our close attention.

---

 

NOTES

[1]  Grenville M. Dodge, How We Built the Union Pacific Railway and Other Railway Papers and Addresses (Council Bluffs Iowa: The Monarch Printing Co, n.d.), p. 18, The Everett D. Graff Collection of Western Americana, Newberry Library, Chicago, Illinois.

[2] Robertson Davies, Fifth Business (New York: Penguin, 2001).

[3] W.J. Palmer to E.J. Brooks, June 23, 1880, Denver and Rio Grande Railroad Through the Ute Reservation and Jicarilla Reservation, Special Case 68, Special Cases File, 1821-1907, box 61, SC-61 to SC-70, Records of the Bureau of Indian Affairs, Record Group 75, National Archives and Records Administration, Washington, D.C. [hereafter Special Cases, BIA, RG 75, NARA].

[4] C.F. Stollsteiner to Commissioner of Indian Affairs, May 23, 1881, Denver and Rio Grande Railroad Through the Ute Reservation and Jicarilla Reservation, Special Case 68, Special Cases File, 1821-1907, box 61, SC-61 to SC-70, Special Cases, BIA, RG 75, NARA.

[5] H.A. Risley to Henry M. Teller, Secretary of the Interior, December 4, 1882, Denver and Rio Grande Railroad Through the Ute Reservation and Jicarilla Reservation, Special Case 68, Special Cases File, 1821-1907, box 61, SC-61 to SC-70, Special Cases, BIA, RG 75, NARA.

[6] J.J. Moore to J.J. Dodge, November 10, 1880, Northern Pacific Railroad Through Crow Reservation, Special Case 82, Special Cases File, 1821-1907, box 66, SC-82 to SC-84, Special Cases, BIA, RG 75, NARA.

[7] See H. Craig Miner, The Corporation and the Indian: Tribal Sovereignty and Industrial Civilization in Indian Territory, 1865-1907 (St. Louis: University of Missouri Press, 1976), 114-115.

[8] “The Splitlog Railroad,” St. Louis Globe-Democrat, October 30, 1887.

[9] For a recent treatment of the Native American Church, see Thomas C. Maroukis, The Peyote Road: Religious Freedom and the Native American Church (Norman: University of Oklahoma Press, 2010).