In 2016, thousands of people, led by Oceti Sakowin Tribal members, gathered at the Standing Rock Reservation in North Dakota in an attempt to stop the construction of the Dakota Access Pipeline. The movement aroused international media attention, mass support from a wide range of individuals and environmental groups, and political debates regarding Indigenous rights, climate change, fossil fuel reliance, water protection, and corporate power. Ultimately, 10 months into the movement, it was halted by the US federal government and the pipeline was installed. During the movement, state and federal military forces worked alongside a private military and security contractor (PMSC), TigerSwan, hired by owners of the pipeline, Energy Transfer Partners. This case study addresses the ethics of the use of private military against Indigenous-led environmental activists at Standing Rock. Readers will review the modern rise and use of privatized militia, examine specific tactics used by TigerSwan at Standing Rock, and consider the ethics surrounding principles of transparency, accountability, regulation, and the potential risk for increased violence against citizens. A brief historical overview of Oceti Sakowin’s political resistance to US federal land appropriation and corporate exploitation is provided, as well as an analysis of future implications for Indigenous-led environmental justice movements. With this case study, instructors, students, and researchers can debate and analyze the ethical dilemmas regarding the use of PMSCs to target environmental justice movements.

INTRODUCTION

In early 2016, hundreds of people, led by Oceti Sakowin Tribal members, gathered near the banks of the Cannonball River on the Standing Rock Reservation in North Dakota to stop the construction of the Dakota Access Pipeline (DAPL). Creating the #NoDAPL or “Water is Life” movement, the activists were protesting the placement of a 1,127-mile long oil pipeline intended to go from Northern North Dakota to Southern Illinois, running under the Missouri River reservoir, Lake Oahe, and across native sacred lands. The proposed pipeline posed a potential threat to viable water sources and constituted a violation of treaty rights. Over the course of 10 months, the #NoDAPL movement grew into multiple camps, drew national and international media attention, and attracted thousands of people to join the cause. Nearly 1 year after the movement began, and a temporary suspension of the project by President Obama in 2016, US President Trump, in early 2017, revived the pipeline and ordered a military eviction of the camps by the US National Guard. Although the movement did not accomplish its ultimate goal of stopping the construction of DAPL, Standing Rock produced an array of twenty-first century political concerns regarding Indigenous rights, climate justice, water protection, fossil fuel reliance, and corporate power.

The primary focus of this case study is to highlight the ethical dilemmas regarding the use of the private military and security contractor (PMSC), TigerSwan, to target and surveil the Indigenous-led, environmental-justice movement at Standing Rock. PMSCs are defined as privately owned, for-profit, corporations that contract military and security labor [1]. TigerSwan, a North Carolina-based PMSC, originated in 2005 as a US military and state department contractor to help to execute the global “War on Terror” and also specializes in “corporate risk management for modern global threat” (tigerswan.com). In this case, TigerSwan was hired by Energy Transfer Partners, a private, Texas-based firm financing DAPL, as a security consultant. TigerSwan worked alongside and shared information with local police and state military, who were there in response to criminal charges made against activists.

The use of private detectives, such as the Pinkertons, by the federal government and energy corporations, to investigate Native Americans is nothing new and raised significant ethical debates regarding civil rights in the past [2, 3]. What makes the particularities of this case historically unique is the specific context: the US has been engaged in an international “War on Terror” since 2001, and a new form of corporatized, private military, specializing in counterintelligence and counterterrorism, has grown out of that particular culture [4]. Simultaneously, an emerging environmental crisis of climate change threatens economic and social norms. An analysis of private/public military coalitions can teach us about the ways fossil fuel reliance and land usage are protected by the state and corporations, and how far they are willing to act in the name of these beliefs in the face of opposition [5]. In this case study, readers will review the modern rise and use of privatized militia, examine specific tactics used by TigerSwan at Standing Rock, and consider the ethics surrounding principles of transparency, accountability, regulation, and the potential risk for increased violence against citizens engaged in environmental activism. Finally, a brief historical overview of Oceti Sakowin’s political resistance to state and corporate exploitation is provided, as well as an analysis of future implications for Indigenous-led environmental justice movements.

CASE EXAMINATION

Rise of the Private Military and Ethical Considerations

The growth in the US of PMSCs has been on the rise since the end of the Cold War and is a byproduct of a range of neoliberal economic policies and ideologies [6]. Neoliberalism is the “defining principle of contemporary US capitalism since 1980” [7], p. 17, and emphasizes market-led development, such as privatization, liberalization, deregulation, and national economies entrenched into the global “free market” [8, 9]. Ettinger [10] analyzes the relationship between military privatization and economic neoliberalism. He argues that privatization is “a single institutional strategy in a broader syndrome of policies that constitute economic neoliberalism” and that, in order to understand how it is that corporations have come to appropriate military procedures and purpose, we must look at a range of factors and consider that neoliberalism is an ongoing dynamic set of actions particular to specific contexts [10], p. 744.

Since the wars in Iraq and Afghanistan began in 2001, the use of PMSCs has significantly increased. Nearly 50% of US-based armed forces in Iraq and Afghanistan are private military, and it is widely understood that the US military would not be able to execute its missions, in both major wars, without their support [11, 12]. Tasks that were once thought to be governmental, such as interrogation, translation and armed guarding, are now conducted by PMSCs. One of the main reasons that Congress and the Department of Defense approve the use of private contractual resources is because it saves significant amounts of money [12]. In addition, it is argued that the coalescing of public and private forces bolsters state power [13] and creates multidimensional security solutions [14].

The ethical use of PMSCs in international wars has attracted increased attention from scholars of law and foreign relations regarding the balance of state power and proper regulation [1419], but a dearth of literature examines their use in domestic disputes, specifically regarding environmental activism or Standing Rock specifically [20, 21]. The following sections look at the domestic use of PMSCs, specifically the tactics used by TigerSwan at Standing Rock, to examine the ethical concerns regarding principles of transparency, accountability, regulation, and the potential risk for increased violence against citizens engaged in environmental justice activism.

Transparency, or “the capacity of outsiders to obtain valid and timely information about the activities of government or private organizations” [22], is an important ethical concern in this case. Actions taken by the local police and county sheriff department were well-known and reported on by public media throughout the 10-month duration of the Standing Rock protest camp, but the involvement of TigerSwan was only made known to the public 2 months after the camp’s disbandment. On May 27, 2017, the media source Intercept leaked the documents that revealed TigerSwan had been hired by Energy Transfer Partners to target and launch military-style surveillance and counterintelligence campaign against the Standing Rock activists, and willingly worked alongside and shared information with state authorities. While excessive transparency in the case of state security can expose and weaken control, some level of transparency is key to corruption control in a representative democracy. PMSCs, such as TigerSwan, are proprietary businesses and, although often proxies of the state, are not legally bound to share information with the public and are renowned for their “zero footprint” approach, or no trace of actions left behind [23]. To make informed decisions about the ethical use of PMSCs during domestic, environmental justice protests, the public needs to know more information about their activities.

PMSCs are not public servants and thereby not accountable to the same legal constraints and oversight; they are for-profit entities with their own internal regulations. Employees of PMSCs are everyday citizens and they can do things which police are not legally allowed to do, such as unreasonable search and seizure, arrests without Miranda rights and warnings, and obtain evidence through unauthorized searches [2426]. Because of this lack of governmental accountability, there is a risk of violation of civil liberties. Reports from Standing Rock activists claim that internal infiltration by undercover TigerSwan employees was used in the camps to obtain evidence of criminal activity and incite violence [2729]. In a TigerSwan report, leaked to Intercept, the company describes how they had “harnessed a URL coding technique” to discover hidden social media profiles and gain access to private information [30]. Attorney Jeff Haas, who works with the National Lawyers Guild and represents nearly 800 activists arrested at Standing Rock, argues that the use of a private corporation, hired by another private corporation, to use counterintelligence tactics to confront a domestic, environmental-justice movement, is a violation of constitutionally protected rights to privacy and assembly [31].

A complex layer of various federal and state laws regulates PMSCs [32]. In the case of international war and armed conflicts, the Uniform Code of Military Justice (UCMJ) subjects PMSCs to court-martial if they commit crimes while accompanying the military in the field [33]. While Oceti Sakowin is a sovereign nation, the actual Standing Rock protest took place on (contested) state and private lands and was not an armed conflict. Under domestic laws, PMSCs, like all corporations in the US, must have a business license, must be registered and regulated under state and/or local law, and are susceptible to tort laws [32]. The State of North Dakota Private Investigation and Security Board oversees all security firms in the state and filed a complaint in 2017 against TigerSwan for conducting security services without a license, but the case was dismissed in 2019 because TigerSwan voluntarily left North Dakota and did not plan to return [34]. Singer [15] argues that for civil-military relations in democratic states, the use of PMSCs creates a diffusion of accountability and raises concern for the balance of power away from the state. In 2017, the United Nations Human Rights Council’s Working Group that oversees the use of PMSCs in sixty countries found that national laws “were not strong or consistent enough to properly regulate the private military industry,” due to lack of enforcement mechanism and fragmented self-regulation [33], p. 1189.

The final ethical concern raised in this case study regards the potential risk of increased violence that PMSCs pose to citizens. Standing Rock publicly announced itself as a peaceful prayer camp that engaged in non-violent, civil disobedience tactics. Yet, the Morton County Sherriff’s department, local police, police from dozens of surrounding jurisdictions, Indian Bureau police, National Guard, Border Patrol, Homeland Security, and PMSCs were called in to control activists [35]. Dakwar, Director of ACLU Human Rights Program, described it as follows: “Local law enforcement agencies, led by the Morton County Sheriff’s Department, aggressively deployed militarized gear and weapons—designed for use in war—to intimidate peaceful protesters and violently crackdown on a historic Indigenous-led movement” [36]. Numerous media sources showed violent images of the police using rubber bullets, tear gas, pepper balls, and water cannons in below-freezing temperatures against activists [3739]. In September 2016, one of the few media reports to expose the presence of a PMSC, revealed Silverton, an unlicensed PMSC, deploying dogs and using pepper spray against demonstrators, resulting in numerous injuries [40]. This instigated Energy Transfer Partners to delegate directorship of all private security to TigerSwan, who then oversaw and coordinated several other private contractors during its tenure at Standing Rock [31].

TigerSwan was founded by James Reese, former Lt. Colonel of the special operations unit Delta Force, and its employees are often trained military veterans who fought in the “War on Terror” in Iraq or Afghanistan. The documents leaked to the Intercept include TigerSwan’s daily intelligence reports, Powerpoint slides, and memos about Standing Rock protestors and reveal a range of counterterrorist tactics and discourses used to “defeat pipeline insurgencies” [30]. The Intercept reported: “Internal TigerSwan communications describe the movement as ‘an ideologically driven insurgency with a strong religious component’ and compare the anti-pipeline water protectors to jihadist fighters” (emphasis mine) [30]. One report, dated February 27, 2017, states that since the movement “generally followed the jihadist insurgency model while active, we can expect the individuals who fought for and supported it to follow a post-insurgency model after its collapse” [30]. It becomes clear that Standing Rock activists were viewed as terrorists.

In a study conducted by the United Nations Human Rights Council’s Working Group on the effects of the activities of PMSCs on human rights, they found that greater contact with civilians led to situations in which serious human rights abuses could and did occur [41]. In 2014, the US Department of Justice asked police chiefs from across the country to consider the ethical concerns of PMSCs working alongside public police. They listed five benefits, including increased effectiveness and efficiency, and seven risks including lack of accountability, threats to civil liberties, and threats to public safety [24]. The police chiefs concluded: “Military units are more oriented toward the use of decisive force against enemies, and less toward apprehending violators and achieving peaceful solutions” and that private companies had profit motivation that could create “perverse incentives” [24], pp. 12–13.

Considering the ethical concerns regarding transparency, accountability, and regulation, and the potential risk for greater violence against citizens posed here, is it ethical for energy corporations to hire PMSCs, who coalesce with the state, to target domestic, environmental justice movements? To further explore this question, a broader understanding of historical context is needed. The following section briefly analyzes the history of Oceti Sakowin’s resistance to state and corporate exploitation and assesses broader implications for future Indigenous-led, environmental justice movements.

Historical Overview and Future Implications

The Oceti Sakowin nation has been engaged in a broad, ongoing land dispute with the federal government and resistance to corporate exploitation for centuries. Acts of resistance that led to the Wounded Knee Massacre in 1890, the Wounded Knee Occupation in 1973, and the Standing Rock “Water is Life” movement in 2016, all revolve around one central theme: violations of the Fort Laramie Treaty of 1868, which gave a 32-million-acre tract of land, including the Black Hills, to the Oceti Sakowin and relinquished any hold by the US Government [20]. Since signing the treaty, the Oceti Sakowin nation has engaged in legal and political resistance to energy and mining corporations in the Black Hills, such as the gold mining Hearst Corporation [42] and multinational energy companies, Union Carbide and Exxon [43]. Land appropriation and corporate exploitation are attributes of the larger, historical, and systematic process of the settler-colonial project. Settler colonialism is defined as an “inclusive, land-centered project that coordinates a comprehensive range of agencies, from the metropolitan center to the frontier encampment, with a view to eliminating Indigenous societies” [44], p. 393. Settler colonialism is an environmental injustice because the aspirations of one group inflict harms and risks on the environment of another [45]. The 2016 Standing Rock movement to protect their main water supply is part of ongoing resistance to the interconnected conditions of settler colonialism and environmental injustice. In this case, their efforts were subjugated by aligned federal, state, and corporate powers.

Future implications for Oceti Sakowin activism, as well as other environmental justice movements in the US, are that they will face similar private/public coalitions. Abrahamsen and Williams [13] describe these coalitions as “global security assemblages,” or complex hybrid structures of actors, knowledge, technology, and values that stretch across boundaries, but operate from national settings. The global security assemblage in this case could be explained as the state’s response to what Angus [46] calls “environmental militarism,” a term to describe the federal government’s view that environmental issues pose as a national security threat and should be confronted with military force. National security strategies in both Bill Clinton and George Bush Jr.’s presidencies reveal that environmental issues, specifically climate change, pose security risks that “could potentially destabilize the geo-political environment” [46], p. 182. The global security assemblage in this case could also be explained as an energy corporation’s response to a threat to its for-profit endeavors and assets. Corporations and state have integrated creating a critical infrastructure of protection [5].

This integration might prove to be especially problematic for future Indigenous-led environmental movements for various reasons. First, as demonstrated by TigerSwan discourse in this case, Indigenous activists run the risk of being viewed and treated as terrorists. Second, in the US, approximately 20% of the nation’s oil and gas reserves, as well as vast coal reserves, are located on native reservations, making them “valuable” to corporations and vulnerable to exploitation and environmental risk [47]. Finally, Indigenous tribes around the world have been networking in response to settler colonialism, global capitalist exploitation, and environmental injustice and are visible leaders in a global movement of resistance [45, 48]. Sze [47], p. 21, says, “Standing rock is an iconic case of contemporary environmental justice activism that makes Native scholars and activists central and foundational to environmental justice theory and practice.” This case study also reveals that Standing Rock inspired an iconic case of aligned state and corporate repression that makes the ideologies of the “War on Terror” and corporate use of PMSCs foundational to the study of future Indigenous-led environmental justice movements.

CONCLUSION

In conclusion, this case study highlights the ethical dilemmas of private military use against water protectors at Standing Rock in their movement to stop DAPL in 2016–2017. Readers reviewed the modern rise and use of privatized militia, examined specific tactics used by TigerSwan at Standing Rock, and considered the ethics surrounding principles of transparency, accountability, regulation, and the potential risk for increased violence against citizens. Finally, a brief historical overview of Oceti Sakowin political resistance to state and corporate exploitation was provided, as well as an analysis of future implications for Indigenous environmental justice movements. Key concepts of neoliberalism, privatization of military, settler colonialism, and environmental militarism were explained. Deeper inquiry into how the ideologies espoused by the war on terrorism impacts domestic responses to environmental justice movements is needed. Finally, the ethical dilemmas posed here are important debates for scholars of environmental issues and environmental justice movements.

CASE STUDY QUESTIONS

  1. Describe the main objectives and arguments given by the environmental justice activists in the Standing Rock movement.

  2. How does settler colonialism factor into this case study? Explain the correlation between settler colonialism and environmental injustice.

  3. Provide explanations for the rise in the privatization of military and security. What is the role of the economy?

  4. Describe how the ideologies of the “War on Terror” factor into this case study?

  5. What are the ethical concerns and potential risks of using PMSCs in domestic affairs? What are some of the advantages? Does one outweigh the other?

  6. Why do you think it was kept secret to the public that TigerSwan was hired by Energy Transfer Partners to provide surveillance and security at Standing Rock? What are the challenges regarding transparency in this case?

  7. How do historical relationships impact present relationships? In this case, the relationship between the Oceti Sakowin nation and the US federal government.

  8. Explain how the concept of environmental militarism factors into this case study? How does this concept imply a one-way militarization, blurring state, and corporate militarization?

  9. How might the use of global security assemblages be problematic for Indigenous-led environmental movements in the future?

AUTHOR CONTRIBUTIONS

This case study was authored solely by KG.

COMPETING INTERESTS

The author has declared that no competing interests exist.

SUPPLEMENTARY MATERIALS

Slides S1. Supporting information and images to article case.pptx

Teaching Notes S2. Supporting information for educators to article case.docx

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