The Standing Rock Controversy

Welcome to Episode 31 of Axe to the Root Podcast, part of the War Room Productions, I am Bo Marinov, and for the next 20 minutes we will be talking about an issue that recently caused a lot of tumult and controversy and indignation in different groups in our society: The so called DAPL controversy, that is, the Dakota Access Pipeline Controversy, or also known as the Standing Rock controversy, by the name of the Standing Rock Native American Reservation, currently the largest remaining separate territory of the Large Sioux Nation and a home of some of the ancient sacred sites of of the nation.

For those listeners who are not familiar with the situation, here’s a short overview:

The Dakota Access Pipeline (DAPL) is a crude oil pipeline designed and built by the Texas-based oil company Energy Transfer Partners, designed to connect the recently developed Bakken oil fields in northwest North Dakota with the company’s storage facilities in central Illinois. The project costs $3.7 billion and, if finished, will significantly lower the costs of transportation from the new fields in North Dakota, thus also lowering the cost of crude oil delivered to the Northeast. The route goes in an almost straight line from the Bakken fields to Sioux Falls in South Dakota, and then in another straight line to Patoka, Illinois. The controversial section of the pipeline is about 25 mi south of Bismark, North Dakota, on the west bank of Missouri River, just ½ mile north of Cannonball River before it joins the Missouri. The construction site is outside the borders of the present day reservation, which is south of the Cannonball river, but it is between the Heart River and the Cannonball River, a territory which belongs to the Lakota nation under the 1851 Fort Laramie treaty, was never ceded officially to the US government, but was de facto occupied by US troops and white settlers in violation of the treaty.

In the spring of 2016, protesters from the Sioux nation, joined by members of about 300 other Native American nations, established a protest site north of the Cannonball River to block the construction of the pipeline. They have two expressed concerns: first, crossing the Missouri only a mile upstream from the town of Cannonball within the territory, the DAPL constitutes an environmental threat to the water sources for all of the Standing Rock Reservation. Second, the triangle of the two rivers, on the north bank of the Cannonball River, is a historic and sacred site to the Sioux nation, with many burial grounds which will be destroyed by the work on the pipeline.

The protest camp tried to block the construction of the pipeline, and at the beginning, it clashed with the private security guards of the company. The security guards unleashed dogs on the protesters, and the protesters responded with wounding some of the guards. The work was stopped temporarily, until the state of North Dakota brought in heavily armed SWAT teams and other police who used military equipment to scatter the protesters and to start dismantling the camps. The US government asked the company to halt construction until the issue is resolved, but Energy Transfer Partners rejected the request, and continued the construction. The Governor of North Dakota took the side of the oil company. An appeal was filed with a Federal court to put a halt on the construction, but it was denied. In a public statement the company declared that stopping the construction will mean millions of dollars in unrecoverable losses, and besides, no archeological remains were discovered in the excavations through the disputed lands; in addition, the lands through which the pipeline goes are private lands, and therefore have nothing to do with the Sioux nation. A certain role in the controversy was played by the US Army Corps of Engineers, but of this role I will talk a bit later.

The question now is – and I have been asked this question several times since the beginning of the controversy – what is the Biblical analysis of this problem, and what is the Biblical solution? I first had no answer to it, because I was not familiar with all the facts. Then, when North Dakota – and two other states – sent in militarized police to brutally deal with unarmed protesters, my moral instinct was on the side of the Sioux Nation: Based on the obvious Biblical truth that no righteous cause needs the murderous intervention of a standing army against unarmed civilians. A little bit further down the road in my investigations a friend of mine – himself partially of Native American origin, but highly critical of the culture and the ideology behind some of the tribal mentality – pointed to me that the pipeline was not actually on Sioux land but on private land, and the protest camp was itself on private land. While the protesters were careful to not cause damages to the private owner of the land through which the pipeline was built, they were causing damages to the tenant, namely, the oil company. Granted that, my moral opinion was then divided: On one hand, the protesters were wrong to cause damages to a private owner – or tenant – and the government was wrong to use excessive power against them. My friend asked me, “How should the government protect private property, then?” (As a side note, the question is a bit loaded: Biblically, the government is not supposed to protect private property but only to dispense justice.) The analysis of the situation still eluded me: I couldn’t find the ethical/judicial principle that would help me analyze it Biblically, and therefore propose the Biblical solution.

The positions of the two ends of the political spectrum were, as usual, deeply schizophrenic. Leftist writers were in opposition to the very same government of which they expected to fix all the problems in our modern world. (The White House refused to accept a petition of 100,000 signatures brought to Obama by young Native Americans, even as Obama was making cautious attempts to convince the oil company to halt construction.) The right took the side of the police state and approved the brutality and violence in suppressing the protest, claiming support for the “rule of law.” For some reason, however, the only relevant law in this case, the Fort Laramie Treaty, was ignored by those same supposed “conservatives”; apparently, any injustice which survives uncorrected for a long time, becomes a law in the eyes of those “conservatives,” and its violation may be fixed by the police state. Neither of these ends of the spectrum were any good to help me establish the covenantal nature of the case.

However, perhaps the most baffling schizophrenia, though, was that of a good number of secular libertarians, who also took the side of the police state – YES, REALLY! – and that in the name of private property rights. The problem is: There is not a single tenet in any of the secular libertarian ideologies which would support the notion of private property rights. I have written several articles about this, both on American Vision and on Christendom Restored. In the ideology of classical liberalism, private property is not sacred and its importance is only secondary and pragmatic, never foundational. Yes, von Mises’s view of private property doesn’t differ from that of Friedrich Engels; the two men only disagree on its pragmatic usefulness. And Hoppe’s and Dietze’s defenses of the “ethics” (as they call it) of private property are strictly based on pragmatic considerations. That secular libertarians continue using private property rights as an argument only shows the depth of their cognitive disorder. Rothbard and Rockwell are not free of it either, in using private property rights – a notion impossible under the presuppositions of Classical Liberalism – as an excuse for their anti-immigration bias and defense of closed borders. Schizophrenia is deeply embedded in modern secular libertarian thinking. The same problem exists among objectivists, who also ignore the tenets of their own ideology to argue for private property rights . . . while their own icon, Ayn Rand, has her character Howard Roark destroy other people’s private property in the name of the expression of his personality, and has him justified in court. All these secular libertarians contradict their own ideologies, but accept as given a concept that can only come from the one ideology they reject, namely, Biblical Christianity. For the very notion of “rights” is impossible under any system but that which involves an objective, transcendent, immutable system of ethics and justice – namely, the Law of God.

Anyway, with all these positions and opinions being schizophrenic and self-destructive, the question still is: from the perspective of the Bible, who is the villain in this controversy, and what is the Biblical solution?

Now, first of all, we need to lay a foundation about the nature and limits of private property in the Bible, and see how they apply to the controversy and the protest. And let me make the following claim about private property rights: The Law of God establishes private property as a God-ordained right, which means, it is divinely protected, and God has established earthly sanctions in His Law against violations. Pragmatic considerations have absolutely no value when private property is concerned. If a private owner decides to use his property in a completely wasteful way, it is his right, and no one has the right to tell him otherwise. Unless, of course, his actions on his property harm his neighbors. We’ll get back to this in a few minutes.

On the other hand, the Biblical system of private property is a system of open borders. I have explained it in my article, “Lew Rockwell on Immigration: The Mild Statism of Secular Libertarianism,” found on ChristendomRestored.com. In short, as long as there are no fences, and as long as traveling or being on private property doesn’t destroy economic (that is, scarce) value, crossing the border of a private property doesn’t constitute crime in itself. Deut. 23:24-25 establishes the right of a person to enter private property, as long as he doesn’t destroy or take economic advantage of it. Satisfying one’s hunger is allowed, though, according to these verses. There is a reason for the open borders policy of the Bible, and it is more than just satisfying one’s hunger; prevention of crime and destruction of property is also included, as well as saving human life. A man using the nearest house to save his family from a storm – even if the owner is not present – or a man entering another man’s field to put out a fire are not violation of property rights. More can be said about this issue, but I will leave it to another podcast. What is important here is that the mere presence of the protestors on private property to try to stop the construction of the pipeline is not necessarily a crime, under the Law of God. As long as they are not destroying property but only trying to prevent something that they perceive as danger to their homes, Biblically they are innocent of a civil crime. Thus, the use of a government standing army to scatter them is immoral. It is immoral in that public resources are used to serve private interests. The existence of a standing army for suppressing unarmed individuals is immoral. If there was a destruction of private property – not simply standing on it – the Biblical solution would have been through the courts, which would lead to restitution.

This establishes the Biblical right for the protestors to be on another person’s property, and the immorality of using a standing army against them. Once this is established, the question now is: Do the tribes have the right to try to stop the construction? And in the answer of this question we will see a direct application of the evil of the modern state of executive power, as opposed to the Biblical state of judiciary authority. Remember how I said in previous episodes, and in my lectures from the Freedom Conference earlier this year, that the Biblical civil government is only judiciary, that is, the courts, and pagan governments are executive and legislative? Well, here, in the Standing Rock controversy, the evil of the executive state is clearly seen. And in this case, the representative of that executive government, the institution that created the injustice, was the US Army Corps of Engineers. Don’t get me wrong, I have nothing personal against the institution itself – after all, their work in West Houston where I live, and their maintenance of the Addicks Reservoir, has saved my part of town from many floodings. But in the Standing Rock controversy they were an agent of injustice, not because of the institution itself, but because of the very nature of the modern executive state. So let’s see how it happened.

The defense of the company, Energy Transfer Partners, against critics, is that their steel pipes are perfectly reliable, and they specifically use pipes of double thickness, which makes them perfectly safe. Therefore, there is no danger of leaking, and no danger to the water supply of the Standing Rock reservation. That claim is supported by the US Army Corps of Engineers; they have come out with a statement that “there is no danger to the public.” But when reading about the history of the project, one interesting fact comes to light: in the early stages of planning the project, in May 2014, the proposed route of the pipeline ran farther north, and crossed the Missouri 15 miles upstream from Bismarck, the state capital of North Dakota, or a good 50 or 60 miles upstream from the Standing Rock Reservation. The original route didn’t cross any tribal lands, and there was no controversy about it; apparently, either there really was no danger, or there was no group of people who perceived it as danger.

The oil company, however, rejected that first proposed line. The reasons? The first reason was that the terrain was harder and would require more investments. The second reason is crucial here: The pipe would pass dangerously close to the water sources of Bismarck. Hear this well: The same company which told the Sioux Nation that their pipes are perfectly safe to the water supply of the reservation, passing about a mile upstream from the nearest town on the reservation, Cannonball, rejected, two years earlier, the more expensive route because the pipeline would be a danger for the water supply of the state capital, passing a whole 15 miles upstream from it. Only this double standard would be enough for the inhabitants of Standing Rock to distrust Energy Transfer Partners. And they did. And protested.

Here came then the executive state in the face of the US Army Corps of Engineers. They were asked to assess the possible environmental dangers and resolve the issue. Now, stop here before we continue. This is important.

The question here is this: When an executive agency is involved, who does it serve, and in whose interest will it make its decision? It is clear that no man is neutral, and therefore no human agency is neutral. It will always serve its masters, the ones who write the check. The US Army Corps of Engineers is an agency of the Federal government, it gets its checks from the Federal government, and it will make its decisions in favor of the Federal Government. From the perspective of all Federal agencies, individuals or companies don’t exist as moral or judicial entities; they exist only as economic entities, that is, as dairy cows to be milked and sheep to be sheared. And when the Federal Government assesses the value of the two sides to the argument, the oil company and the tribal nation, which of the two will have more weight on the scales in terms of expected tax revenue? It should be obvious.

The US Army Corps of Engineers gave the expected verdict: “There is no danger to the public.” Asked again by other agencies, due to public pressure, it repeated the verdict: “No public interest is violated.” Notice the language in both decisions: The interests and the fears of the those directly affected were not taken as a valid concern; the concern is an amorphous, non-definable entity called “the public.” Or the “public interest.” and if you wonder where that concept came from, remember Jean-Jacques Rousseau and his concept of the “general will.” Yes, the same “general will” which may possibly will to break the individual will of some individuals or groups, why not? Welcome to the reality of the executive state: The entity that always has the upper hand in all disputes is the “public.” The public, of course, defined by the political masters. Against the concerns of the individuals who have no power. And if something happens, and the worst fears of the tribal nations happen to be proven valid, there will be no personal responsibility: there is no one in particular within the Corps of Engineers who will bear personal responsibility for the tragedy. The Corps has been proven wrong before and has a history of mistakes. No one in it has paid for their wrong assessments. And there is no mechanism for the tribe to take a person to court and make them pay for any damages that may come from a possible leak. Welcome to the beauty of the executive state.

Risk – and fear of risk – is an economic cost, and it weighs on people’s decisions just as much as all other costs – time, money, labor, etc. The difference between the rejected first route and the second route show it clearly: The company could pay more money for a lower risk and no protests. It chose to pay less money. The difference went into risk – or perception of risk – for third parties. The Sioux Nation was left to bear the difference in the social cost of the project. The population of the Northeast would get cheaper oil because the Native Americans will bear the cost in the form greater danger for them and their land. Or at least, a perception of danger: but then, psychological cost is still a real cost, and in this case, it can be measured directly in the cost difference between the first and the second route. A private company transferred that cost to the local population. The executive state supported the company, for the obvious reasons: the company will bring more money into the coffers of the executive state. When the local population protested, the executive state sent in its standing army to force them to accept the cost.

How would this dispute be resolved in a society based on the Biblical Law? Easy. First of all, in a truly Biblical society, there would be no executive state, so there would be no such entity as a “public interest.” The only government institution to which the two parties can go is the courts – and the courts in the Bible were manned by men from the community, and controlled from the bottom up. There will be no public interest, there will be the two parties – the tribe and the company – and an assessment of the costs for both parties. When the tribe protests against the construction – because while it passes through private lands, it still endangers the reservation – the courts will take the tribe’s fear and perception of risk as a true social cost of the project. The company, then, will be asked to make an offer to pay for the costs of the tribe. In a free Biblical market, there would be a limitless number of opportunities for such settlement. The company can simply pay the tribe a sum of money upfront, which would make them withdraw their complaints. Or it can create an insurance fund where regular deposits will be made from the sales, to meet any possible losses in the future from a possible leak. Or it can draw a different route; perhaps more expensive, but one that wouldn’t meet opposition. It can offer employment opportunities to the tribe. Etc., etc. No matter what the company offers, the dispute is not over until the affected parties agree to it. When the value of the offer is greater than the cost of the perceived risk, the tribal nations will say, “we’ll take it,” and a solution is found. Whatever comes out of it, the cost for the company will be greater, but it will be the true market cost, a cost that doesn’t include a violation of the Eighth Commandment, that is, no theft, that is, no immoral transfer of cost to third parties. The consumers of fuel will pay a slightly higher price; but it will be the honest price.

And no general will, and no public, and no public interest. The code words for a Biblical society are liberty and justice: No one is forced to bear cost for something from which he gets no benefit; and no one is prevented from making a deal with anyone.

The solution that is pushed today on the Native nations is the pagan solution: might makes right. The Biblical solution is justice and responsibility: acknowledge the real cost of the project, and make the owner of the project pay for it. Until we continue trusting in the executive state and its institutions, we won’t have liberty and justice for all, and finally, we will have liberty and justice for none. A return to liberty and justice is a return to the Biblical mandate of civil government that is strictly judicial, and acknowledges no independent will or existence of “the public,” or of the state.

The book I will assign for reading this week is Man, Economy, and State, by Murray Rothbard. I know, I know, just a few minutes ago I declared the inability of Classical Liberals to come up with a coherent theory of private property. But they have their moments of insight, and this book has many of these moments.

And again, my request to you is, help me continue the work of Christian Reconstruction in Bulgaria. We need your help to continue creating the intellectual foundation for the future Biblical society in Bulgaria. Visit BulgarianReformation.com. Subscribe to the newsletter. And donate. God bless you all.