The Modern Day Indian Wars
The business of Indian Hating is a lucrative one. It’s historically been designed to dehumanize Native people so that it’s easier to take their land. There are many phrases that underscore the deep cruelty of the American Empire toward Indigenous peoples: “Kill the Indian, save the man,” Manifest Destiny, and “Merciless Indian Savages” are a few. After all, this is our land. Indakiingimin, the very land to which we belong. And to make America, it was important to steal it.
That’s pretty much how American history has gone—rampant theft of land, cultural items, and people. And where possible, the laws themselves facilitate this theft. It starts with hating and expands to war. And now, some of the modern Indian Wars take place in the courtroom.
There’s a long list of law firms that specialize in modern day Indian fighting. It usually has to do with tribal jurisdiction over water, land, or children, all of which are pretty basic for the survival of a people. Most of those law firms have other clients like real estate or title insurance moguls, mining companies, oil companies, county governments, and the like who want to have access to more Indian land or people. Those interests need a modern cavalry: lawyers.
Gibson, Dunn and Crutcher is a big shot law firm for fighting Indians. These days, they are the attorneys for Energy Transfer Partners (ET), a company that is involved in a $300 million case known as a Strategic Lawsuit Against Public Participation, or SLAPP, suit. The lawsuit is intended to stop Greenpeace, the international environmental network, from supporting Indigenous peoples. Gibson, Dunn and Crutcher appear to want to stop Indigenous peoples from protecting their lands, and scare away any allies in the process.
In 2016, Energy Transfer Partners descended upon the Missouri River just north of the Standing Rock reservation, to complete a fracked oil pipeline. The pipeline company had sidestepped regulations, and secured a new route just north of the Standing Rock reservation, and their water supply. In August 2016, I went to the river, summoned by Ladonna Brave Buffalo, Debra White Plume and others, both in this world and who have passed. I came for the water, because being a Water Protector is about life. Try drinking oil.
The cases grind on. Over 800 people were charged, and millions of dollars of lawyers have worked on the case. North Dakota is still seeking to get the U.S. government to pay for the $38 million the state expended on police forces, and that federal case was heard in February and early March in U.S. District Court in Bismarck, North Dakota. Meanwhile, the federal regulators just had their first hearing on the draft of the court ordered Environmental Impact Statement in November 2023 in Bismarck. Just to say it again, the federally required EIS is being reviewed eight years after the pipeline was installed. That’s a bit backwards.
The legal system is not a fast one, and it’s backed up with all sorts of stuff, including about 500,000 pages of evidence just released by Energy Transfer Partners in a lawsuit against Greenpeace, the international environmental organization, for its participation in the opposition to the Dakota Access Pipeline (DAPL). ET is charging Greenpeace with a staggering $300 million in damages for “defamation” of the company.
How do you defame an oil pipeline company? You say mean things about them.
SLAPP lawsuits typically target journalists and human rights defenders. They are meant to shut down anyone who opposes the corporation that sues. Thirty-four states have passed regulations discouraging these lawsuits, not only because they infringe on basic civil rights, but also because they waste a lot of time in the court. North Dakota is not among those thirty-four states.
Filed originally in 2019, ET’s suit accuses Greenpeace of criminal behavior—trespassing, vandalism, and arson, as well as the harassment and assault of construction workers—to stop the Dakota Access Pipeline. Energy Transfer basically holds Greenpeace responsible for most of what unfolded at Standing Rock.
That’s rather surprising to many of us who were there, as we frankly had no idea Greenpeace was in the camp. ET contends Greenpeace orchestrated a campaign that ultimately convinced the federal government to halt construction on the DAPL for roughly five months. A lot of us wrote letters to the federal government and the Army Corps of Engineers—Greenpeace didn’t even give us pencils.
It is likely that Gibson, Dunn, and Crutcher isn’t interested in Greenpeace—they are actually interested in diminishing tribal sovereignty and tribal rights.
Welcome to the modern-day Indian Wars.
Remember the U.S. Supreme Court case on the Indian Child Welfare Act? Gibson, Dunn and Crutcher represented the defendants in Haaland v. Brackeen, a case that challenged the constitutionality of the Indian Child Welfare Act (ICWA), free of charge. That’s right, pro bono. The case, had it prevailed, would have gutted the ICWA, which limits the removal of Native American children from their families and Native communities. That’s a hard-fought-for law to protect Native communities.
Above the Law, an online law publication, explained why pro bono made sense to the firm: “Taking a financial loss litigating a family law case is a small investment toward advancing the interests of the rest of the firm’s clients in diminishing the last, tenuous pockets of tribal sovereignty . . . . Make no mistake that it is a business decision. All the ‘everyone deserves a lawyer’ rhetoric doesn’t play here—the firm is taking on a pro bono case for a family with seemingly no injuries as part of a broad attack on tribal rights.”
“One of the things that tribes need to continue to exist is their children,” Shannon Smith, executive director of the Indian Child Welfare Act Law Center, told Mother Jones in 2022. “Things just don’t exist if you don’t have kids.”
Ultimately, in a narrow margin, the Supreme Court affirmed the Indian Child Welfare Act, dashing Gibson, Dunn and Crutcher’s hopes. But they have other battles.
The Cofán are a water people who travel and live upon the Aguarico River in what is now called Ecuador. Because of American oil companies, they live in an oil wasteland.
ChevronTexaco, a U.S.-based oil company, began operating the Lago Agrio oil fields in the 1960s. By the 1990s, millions of gallons of crude oil had been spilled throughout the region. Toxic waste from drilling and refining was stored in unprotected pits, toxifying the soil and contaminating water supplies.
Thirty-thousand plaintiffs, mostly Native, took Chevron to court for the environmental devastation. The case took almost eighteen years to resolve, but in 2011 an Ecuadorian court ruled against Chevron, the current owners of Texaco, ordering it to pay $18 billion. While that figure was later reduced to $9.5 billion, it still represented one of the largest judgments ever against an oil company. Rather than pay up, Chevron, the $200 billion company, refused to clean up and instead removed its assets from the country.
The attorney for the Cofán Native people of Ecuador was a man named Steven Donziger. None of Donziger’s original 30,000 Ecuadorian clients—suffering and dying from cancers and other diseases that many believe are related to oil contamination—have received a penny since the original lawsuit was filed in 1993.
This is because Chevron’s attorneys, Gibson, Dunn and Crutcher, argued successfully that Steven Donziger had secured the $9.2 billion judgment by corrupt means. The lawyers argued that Donziger violated U.S. federal laws prohibiting attempted extortion, wire fraud, money laundering, witness tampering, and obstruction of justice, as well as the Foreign Corrupt Practices Act. That was in 2014. Then the state of New York arrested and disbarred Donziger.
In Ecuador, the water is still full of oil. The people are sick. But Gibson, Dunn and Crutcher won.
This law firm will be at the front lines of the Indian Wars in North Dakota. It looks like they hope to discredit Greenpeace, make the organization pay $300 million, and ensure that no one says a peep about that dirty oil pipeline.
Greenpeace attorney Everett Jack told Southwest District Court Judge James Gion that “Greenpeace cannot be responsible for the entire protest without evidence.” Jack said only six people working for Greenpeace ever attended the demonstrations.
Greenpeace is a big fish in the environmental world. But Lakota lands, waters, and jurisdiction are a bigger fish. We will see how the case rolls out in Morton County, but ultimately Gibson, Dunn and Crutcher has proven to have a larger agenda for Indian Country. The last Indian Wars were dirty wars. Today’s Indian Wars are as well.
A version of this article originally appeared in the High Plains Reader. It is reprinted here with permission.