The pipeline protests at Standing Rock continued a long tradition of Native people coming together to protect natural resource rights. Indeed, this Essay argues, natural resource disputes are responsible for core advances in Native peoples' rights in the twentieth century. Although there are many examples, I focus on four particularly influential disputes. First, in 1905, at the height of an aggressively assimilationist federal policy, United States v. Winans preserved and expanded principles of treaty rights and preemption of state law. Next, in the 1920s, Pueblo struggles over water catalyzed new federal Indian policies that turned away from assimilation and toward tribal self-determination. Then, in the 1960s, a resurgent struggle for off-reservation fishing rights both created powerful judicial precedents and initiated a new era of pan-Indian activism and federal Indian policy. Most recently, the global indigenous struggle against natural resources exploitation by states and multi-national corporations was decisive in moving international law to recognize indigenous rights as human rights.
The resurgence of rights of tribal nations is about much more than natural resources. Indigenous peoples have always struggled for self-determination broadly defined; understanding them solely through traditional resource use denies that self-determination. But the pivotal role of natural resource struggles is not a coincidence. Because so many indigenous groups built key parts of their cultures around resource use, natural resource claims have helped reinvigorate sometimes frayed tribal bonds and identities. Although rooted in tradition, these struggles have also been uniquely generative, inspiring new forms of protest and creating new coalitions and organizations. In the twentieth century, as all peoples have become more concerned about environmental change, these tribal claims met unusually sympathetic courts and lawmakers. This combination of distinctly motivated indigenous action and distinctly receptive non-indigenous audiences helped create principles and policies that benefit tribal peoples in areas far removed from natural resource use. At the same time, the threat of climate change and habitat destruction make increasingly clear how the principles that preserve tribal natural resource use redound to the benefit of us all.
Berger, Bethany, "Natural Resources and the Making of Modern Indian Law" (2019). Connecticut Law Review. 404.