The land beneath the pipeline was accorded to Sioux peoples by the Treaty of Fort Laramie in 1868. Eleven years later, the U.S. government incited and won theGreat Sioux War, and “renegotiated” a new treaty with the Sioux under threat of starvation. In that document, the tribe ceded much of the Laramie land, including the Black Hills of South Dakota, where many whites believed there to be gold.
In the decades that followed, other land previously controlled by the Sioux was doled out by the federal government as homesteads to Native families; when those farms failed, the government often repossessed the land. And in 1980, the Supreme Court ruled that the Black Hills were taken unjustly, and it ordered the U.S. government to compensate the Sioux tribes fairly for them. But the Sioux declined the payment—which still sits in U.S. Treasury accounts, earning interest—because they seek possession or co-ownership of the land itself.
Of course, this history does not answer whose land it really is: American law still respects the underlying logic of the “doctrine of discovery,” the idea that European Christians could lay claim to land if they were the first to document it.
But it is in partial recognition of the painful history of colonial land grabs that modern federal law accords certain rights to Native groups. Since 1992, one of these rights could be described as the right to be consulted: Whenever a federal agency undertakes or approves a construction project, it must consult with local Native nations or tribes about whether sacred sites or places are nearby.