Since the announcement of the Dakota Access Pipeline (DAPL) in 2014, which was planned by Energy Transfer Partners for the transport and access of the Bakken oil fields, it has gained traction as a controversial initiative because of its environmental impact, the threat it poses to water supply and its effect on Native American sacred lands. Since August 2016, a group of protestors have been organizing on the Standing Rock Indian Reservation petitioning against the U.S. Army Corps of Engineers and protesting at the actual site of the pipeline (see this New York Times article). While the violence surrounding the pipeline is within itself shocking, the media coverage has been extremely polarized on the issue. Often falling along partisan lines, “liberal” news sources oppose the pipeline on humanitarian grounds and “conservative” sources support it, but both forms of media glean their conclusions about the pipeline from uncritical understandings of the conflict. Both sources ignore that, at the heart of the issue, are issues surrounding what private property is and the consequences of our chosen definition. Instead of taking for granted colloquial definitions of property we can see the underlying distributional inequality inherent to the pipeline by critically assessing how property and law interact.

In contemporary capitalism there is a distribution of property that is reflected in jobs, income and opportunity. In the mainstream Law and Economics (L & E) perspective, the free market is conceptualized as a natural entity. Like biology or physics, the market is observed according to its own internally defined rules and a laissez faire policy naturally follows. On the other hand, the Critical Legal Theorists (CLT) critically engage with the way the market is formed through law. At the core of debates regarding the distribution of property are these theories of how markets are conceptualized. Beginning with the core insights of Robert Hale (1923), Duncan Kennedy (1991), and Joseph Singer (in Kairys 1998).

Putting the absence of historical analysis in the L & E theorists’ methodology aside, Hale provides a comprehensive argument for the internal incoherence of the mainstream theoretical framework. The L & E perspective views society as free of all coercion and unequal power dynamics which Hale describes as “a scheme that has the appearance of exposing individuals to what little coercion at the hands of the government and to none at all at the hands of individual groups” (p. 6). In the L & E view, the only location of coercion and power is in the government. Hale argues, however, that this coercion that L & E theorists identify within governmental structures exists with equal force in the economy. Coercion and unequal power dynamics arise within the market at the fundamental level of the law, not under a “natural” distribution of labor. As Hale puts it in his analysis of the coercive relationship between the property owner and laborer, “the law compels people to resist from consuming the products of the owner’s plant”, even if the products are the fruits of their labor (p. 5). Without the security through law that workers are forbidden from consuming the products they are producing, the distribution of labor is maintained by allocating a disproportionate amount of rights onto the “owner” of the plant. The “fruits of labor” argument, as often cited in Pierson V. Post, quickly breaks down beyond anything but the simplest interactions (p. 9).

In all capitalistic business ventures, coercion is actively being created and mediated by the law. Essentially, Hale argues that the statesman is always there. The only way to resolve conflicts over property is to present the conflict to a court established by law that will subsequently enforce a legally chosen framework. When deconstructed, conflicts over property are fundamentally regulated by the state (p. 12). This contradicts the idea of public and private property being separated by the sole factor that the state regulates one type of property (public) and cannot regulate the other (private). Private property then is not private, just a type of property that is regulated differently. There is no essential difference rooted in its nature.

In Duncan Kennedy’s article “The Stakes of Law, or Hale and Foucault!”, he makes an impressive innovation in the tradition of CLS theory by questioning the relationship between law and power. Kennedy proposes that the bargaining power outlined in Hale’s theory of coercion is shaped by a structure of “background rules” or law (p. 327). These laws shape a host of struggles, some of which Kennedy touches on, such as race, gender, and distributional inequalities. The “background rules” are what determine the individual’s rights with respect to their property, in what Joseph Singer calls their “bundle of rights” (in Kairys 1998, p. 8). There are certain “background rules” that are generally accepted as essential to encroaching on an individuals “bundle of rights”, for example you do not have the right to do many things in your own home that violate zoning regulations. Less simply, like the period of American history where domestic violence was not illegal in the home, some “background rules” police the “bundle of rights” that an individual has in their home in order to perpetuate inequalities. These “background rules” however do more than just shape inequality; they are capable of determining the actual allocation of power. Law is then constitutive of power, which allocates bargaining ability, which creates the means in which the economy operates. Kennedy’s use of Foucault plays an instrumental role on this point (p. 357). Pre-empting the assumption that the economy reflects the law, Kennedy uses a Foucauldian idea of production to demonstrate that the law is not just a reflection of the economy, it is constitutive of the economy.

Like Hale’s concept of “bargaining power”, Foucauldian power is not negative or based in oppression, it is “the multiplicity of force relations immanent in the sphere in which they operate and which constitute their own organization; as the process which, through ceaseless struggles and confrontations, transforms, strengthens or reverses them” (p. 352). This is essential to understanding the CLS’ project. There are no claims being made about the nature of law or the economy but instead a radical re-interpretation of how these institutions operate. Instead of static, they are fluid. Instead of objective, they are literally constituted by the process in which they are employed in order to serve the dominant power allocation.

This power allocation allows for the justification of unequal distribution of resources and the “background rules” are what facilitate it. For example, damnum absque injuria (damage through competition) is a phrase expressing the principle of tort law in which some person (natural or legal) causes damage or loss to another, but does not injure them (Schlag, p. 25). If we have X, owner of property, they have certain rights, which are correlative to a set of behaviors by Y. In the legal case of damnum absque injuria, X’s privilege (their rights) is correlative to Y’s lack of a right (their duty). The CLT’s argue then that morality may be what determines the allocation of rights, but it is law and property that determines the coercive power within the “bundle of rights” that are being allocated.

It is immediately clear, when surveying news articles on the Dakota Pipeline, what their dominant ideological associations are. In Robert Bradley Jr.’s article “Dakota Pipeline: Obama Appeases Lawbreakers”, he argues that liberals are crusading against the energy industry by “breaking the law”. Bradley makes the claim that shutting down the pipeline would “deny Americans thousands of new jobs and hundreds of millions in economic growth”, which emphasizes the extent of the injury, an argument also echoed by liberals. Unlike liberal writers, however, Bradley simultaneously condemns protestors for “taking the law into their own hands” and supports the U.S. government’s protection of the DAPL legal land rights for the “sake of the job market”. His coherence to a contemporary conservative understanding of law and economics invalidates itself when he states that “[c]learly, President Obama, like his environmentalist allies, has no regard for the law…that’s a dangerous precedent to set”. The warning against setting legal precedents is riddled with irony. The way the law is formed, almost literally, is through the employment of legal precedents. The same legal protections that allow the energy corporation to construct the DAPL in the first place is what now Bradley warns against employing by the protestors. His argument is inconsistent and reflects a misunderstanding of how law and rights interact.

In unexpected similarity, an article by Jack Healy entitled “The View from Two Sides of the Standing Rock Front Lines” published in the New York Times, borrows language from the L & E perspective. In an interview with activist Mesaki Horinek, he recalls saying to police officers, “This isn’t just a native issue. We’re here to protect the water… For every ranch and every farm along the Missouri River”. His words indicate what is at the heart of the DAPL debate. Who does the water belong to? Or, in our framework, who has the right, and who the duty in this scenario? In Horinek’s words we can see an attempt at claiming the injury argument originally echoed in Bradley’s article in which the issue would extend beyond just the immediate population. Healy calls on what he hopes will mobilize courts to usurp the standing damnum absque injuria that is invalidating the right to a clean environment and has long denied Native Americans even the most basic human rights. In the same article, Horinek continues to say, “ They were on what the Standing Rock Sioux Tribe considers sacred ancestral land, but from a legal perspective, it is owned by the pipeline company. So sheriff’s officers arrested them for trespassing.”. This quote is the perfect exemplification of the difficulty with moving forward on “legal” based issues. The misconception of private ownership is exacerbated by there being no possible “objective” ownership. This is what both media sources mistake. As is commonly an issue with media that is entrenched in the political “conservative” and “liberal” binary, most of the coverage does not engage with the challenges about conceiving of these rights without a necessary elitist moral framework. Once there can be recognition that property is not stable and natural, on both side of the argument, can there be some resistance.

Coercion is difficult to investigate when DAPL is being discussed by the media in a way in which the ownership of the land is either objectively the corporation’s or objectively the Native Americans’ when it is a question of a relationship of power and how that manifests over access. The methodological issue here is the lack of a historical and sociological approach to the role of pipelines in the U.S., the sustained appropriation of Native American land, the destruction of precious water supplies in vulnerable communities, and the recognition of the Native American genocide enacted by the U.S. government. Without doing interrogative work around the political and social climate in which the pipeline is being built, critics will continue to find themselves trapped by claims to the “legality” of it.

Chloe Sariego is a senior at Sarah Lawrence College studying Political Economy and Sociology. She is a writer, activist and academic but in her spare time performs with the award-winning improv-comedy team Feral Christine. You can keep up with her at @chloesariego or send her an email at csariego [at] gm [dot] slc [dot] edu.

Photo: Tony Webster Bakken / Dakota Access Oil Pipeline