Received: 24 May 2021

| Revised: 8 October 2021

| Accepted: 14 October 2021

DOI: 10.1111/geoj.12421

R E G U L A R PA P E R

“Conflicts of interests” within and between elite

assemblages in the legal production of space: Indigenous
cultural heritage preservation and the Dakota Access
Pipeline

Leah S. Horowitz

Nelson Institute for Environmental

Studies, University of Wisconsin-­
Madison, Madison, Wisconsin, USA
Correspondence
Leah S. Horowitz, Nelson Institute for
Environmental Studies, University of
Wisconsin-­Madison, Madison, WI,
USA.
Email: lhorowitz@wisc.edu
Funding Information
University of Wisconsin-­Madison.
Abstract
This paper represents a “studying-­up” of the controversy over federal regulatory
processes regarding protection of Lakota and Dakota cultural heritage in permit-
ting the Dakota Access Pipeline (DAPL). To analyse this controversy, I engage
with interest-­convergence theory, a component of Critical Race Theory, along-
side a critique of its arguably simplistic definition of “white interests.” Agreeing
that we need a finer-­grained understanding of elite interests as multiple, conflict-
ing, and not always based purely in material self-­interest, I argue that interests
should be understood as nonhuman components of elite assemblages, shaped
by both emotions and societal ideologies yet constrained by –­ and in conflict
with –­ top-­down, ideology-­driven missions and institutional cultural norms, as
well as pressure from other assemblages. I use this framework to examine con-
flicts within and among various elite assemblages’ interests surrounding Lakota
and Dakota cultural heritage. The US Army Corps of Engineers’ emotion-­ and
ideology-­driven interests in demonstrating sensitivity to tribes’ concerns were
constrained by their mission-­driven interests in accomplishing duties in a timely
manner. These interests, in turn, conflicted with concerns (or lack thereof) mani-
fested by other federal entities (Advisory Council on Historic Preservation, DC
District Court) about DAPL’s impacts on cultural heritage, and with the com-
pany’s and federal government’s financial interests in pressuring USACE to
enable completion of the pipeline’s construction. I unpack power differentials
and dynamics among these various groups, as realised through particular inter-
pretations and implementations of relevant legislation. I suggest that examining
such “conflicts of interests” within and between elite assemblages, within the
legal production of space, can elucidate controversies over industrial expansion’s
socio-­environmental threats.

The information, practices and views in this article are those of the author(s) and do not necessarily reflect the opinion of the Royal Geographical Society (with IBG).
© 2021 Royal Geographical Society (with the Institute of British Geographers)

Geogr J. 2022;188:91–108.  wileyonlinelibrary.com/journal/geoj   | 91

92 |    HOROWITZ

KEYWORDS
Assemblage, Critical Race Theory, Dakota Access Pipeline (DAPL), elites, Indigenous cultural
heritage, legal production of space

1 | I N T RO DU CT ION : CU LT U RAL HERITAGE AND INDUSTRIAL

E X PA N S I O N

Cultural heritage preservation is increasingly recognised as a human right (Logan, 2012). Long enshrined in international
law by the International Covenant on Economic, Social and Cultural Rights (1966) and the International Convention on
the Elimination of all Forms of Racial Discrimination (1969), rights to cultural heritage preservation have been elab-
orated more recently in United Nations Human Rights Council resolutions (United Nations General Assembly, 2016,
2018). Originally concerned with European sites (Labadi, 2007), cultural heritage preservation is now widely understood
to encompass Indigenous Peoples’ heritage, as global recognition of and “ethical sensitivity to” Indigenous cultural rights
grows (Coombe, 2009, p. 400). While Indigenous cultural heritage includes a broad range of practices, knowledges, lan-
guages, art forms, relationships to place, etc. (Ahmad, 2006; Cullen-­Unsworth et al., 2012; Zhao et al., 2020), this paper
focuses on material forms: sites and artefacts.
Industrial projects often threaten, degrade, or even destroy Indigenous cultural sites (O’Faircheallaigh, 2008). While,
historically, Indigenous cultural heritage has received little protection from industry’s impacts, largely due to company/
community power differentials (Bainton et al., 2011) and lacking, inappropriate, or ineffectively enforced domestic leg-
islation (e.g., Hubert, 1994; Ritter, 2006), developers and governments increasingly experience pressure to recognize
and protect culturally significant sites. Indigenous groups have become more effective in political mobilisation and
alliance-­building, sometimes delaying or even stopping projects (O’Faircheallaigh, 2008). The international commu-
nity also exerts direct financial pressure on industry; for example, the International Finance Corporation’s Performance
Standard 7, Indigenous Peoples, requires clients to identify and, where possible, avoid cultural heritage impacts (IFC,
2012). Companies sometimes seek to evade negative publicity, deter resistance, pre-­empt restrictive legislation, and at-
tract “socially responsible” investment through heavily publicised efforts to work with Indigenous knowledge-­holders
(Coombe & Baird, 2016), increasingly through agreements negotiated with local communities (O’Faircheallaigh, 2008).
Despite their embrace of cultural heritage rights discourse, though, these industry-­led initiatives fail to truly empower
Indigenous communities, instead sidelining ongoing contestations over land grabs, environmental impacts, and decision-­
making power (Coombe & Baird, 2016), and making empty promises (O’Faircheallaigh, 2008).
Real protection of cultural heritage remains limited, particularly when it conflicts with industrial expansion (e.g.,
Horowitz, 2016). In these encounters, multiple entities with diverse interests pressure one another, with industry’s fi-
nancial interests usually winning out. This paper seeks to elucidate such contests by analysing debates over the US Army
Corps of Engineers’ (USACE, or “the Corps”) implementation of Section 106 of the National Historic Preservation Act
(NHPA) when permitting construction of the Dakota Access Pipeline (DAPL) under the Missouri River in North Dakota,
half a mile from the Standing Rock Sioux Reservation. Bringing interest-­convergence theory into conversation with as-
semblage theory, I analyse power dynamics within and among multiple elite assemblages encompassing diverse inter-
ests. Specifically, I examine the events behind the failure of regulatory processes to empower Lakota and Dakota people
to protect their cultural heritage during DAPL’s construction, as an example of what I term “conflicts of interests” within
and between elite assemblages, whose interests –­ I argue –­ are partly grounded in emotions and ideologies.
The following section describes interest-­convergence theory as a component of Critical Race Theory (CRT), alongside
a critique of its arguably simplistic definition of “white interests.” Agreeing that we need a finer-­grained understand-
ing of elite interests as multiple, conflicting, and not always based purely in material self-­interest, I turn to assemblage
theory to analyse the complexity of elites, and the roles of emotions and culturally informed ideologies as components
of elite assemblages. I contextualise this examination of elites’ “conflicts of interests” within debates over the legal pro-
duction of space. Next, I provide a brief history of regulatory processes around cultural heritage protection within the
federal permitting of DAPL, as background for the empirical argument. Subsequent sections examine differences within
and among various elite assemblages’ interests surrounding Lakota and Dakota cultural heritage: USACE interests in
demonstrating sensitivity to tribes’ concerns versus mission-­driven interests in accomplishing duties in a timely manner,
concerns (or lack thereof) manifested by other federal entities (Advisory Council on Historic Preservation, DC District
Court) about DAPL’s impacts on cultural heritage, and the company’s and federal government’s financial interests in
HOROWITZ    | 93

pressuring USACE to enable completion of the pipeline’s construction. I also unpack power differentials and dynamics
among these various groups, as realised through particular interpretations and implementations of relevant legislation.
Ultimately, I argue for the importance of viewing elite interests as shaped by ideologies and emotions, as components of
elite assemblages, and as entering into “conflicts of interests” within and among elite assemblages in the legal production
of space, to elucidate controversies over industrial expansion’s socio-­environmental threats.

2 | I N T E RE ST- ­C ON VE RG E N CE, ELITE ASSEMBLAGES, AND

I N D I G E N O U S CU LT U R AL H E R ITAGE PROTECTION AS LEGAL
P RO DU CT I ON OF SPACE

While domestic legal frameworks, in the US and elsewhere, increasingly recognise the importance of Indigenous cultural
heritage, they often fail to preserve it. Legal theory can help explain this seeming paradox.

2.1 | Interest-­convergence

Beginning in the 1970s, Critical Legal Studies (CLS) argued that law was “radically indeterminate,” open to interpreta-
tion, and most often used to reinforce social hierarchies and privilege. CRT built on this insight to argue that law is a
tool of racial oppression (Delgado, 1992; Freeman, 1978). While CRT focused on the African American experience, other
theories emerged to address unique forms of oppression faced by different racial groups. Tribal Critical Race Theory, or
TribalCrit, explores the ongoing impacts of colonization (Brayboy, 2005, 2013), including settler-­colonial law’s usage as
alternately a tool of oppression (e.g., land theft) and empowerment (e.g., treaty rights).
Derrick Bell applied CRT’s analysis to apparent gains for racial equality, such as the Emancipation Proclamation and Brown
v. Board of Education, arguing that these achieved strategic political aims for the US government. He labelled this irony the
“interest convergence principle” (1980), the insight that white elites would only reduce racial oppression when their own
interests coincided with those of People of Color. This was, in Bell’s view, a feature of “Racial Realism,” a “hard-­to-­accept” re-
alisation of the “permanence” of racial subordination in US society (Bell, 1992, p. 373; see also McLaughlin, 2014; Terry, 2013).
Justin Driver criticised Bell’s theory for its simplistic analysis of racial “interests,” which ignores “deep intraracial dis-
agreements,” presents “an excessively narrow understanding of the term ‘interest,’” and ignores the “agency” of individ-
ual decision-­makers (2011, pp. 164–­165). I build on Driver’s critique, arguing that elites –­ here, federal agencies, courts,
and politicians –­ are composed of multiple subgroups and individuals, with divergent interests, subject to pressures from
other elites, resulting in what I term “conflicts of interests.” In conversation with recent scholarship on disagreements,
fragmentation, competition and alliance-­building within and among corporate and political elites (e.g., Bull & Aguilar-­
Støen, 2019; Genç, 2021; McDoom, 2014; Raleigh & Dowd, 2018; Sveinsdóttir et al., 2021), I use ethnography to analyse
elites as assemblages held together –­ and split apart –­ by ideologies and emotions. I agree with Driver that elite interests
may not be based solely in “raw material self-­interest” but may involve “concepts like honor, altruism, justice, and moral-
ity,” (2011, p. 169) and, I suggest, discourses, cultural norms, institutional missions, and empathy.

2.2 | Elite assemblages

Elites are powerful groups, maintaining dominance through control of material and symbolic resources (Salverda & Hay,
2014), but must also be recognised as assemblages, dynamic “gathering[s]” (McFarlane, 2009, p. 562) “aggregate[s],”
or “entanglement[s]” (Bingham, 2009, p. 38) of “heterogeneous elements” (Anderson & McFarlane, 2011, p. 124) that
emerge from the activities of humans and nonhumans. While Deleuze and Guattari (1980) consider the State to be a
“stratum,” a compact, highly coded, top-­down organization, I argue that the federal agencies examined here are bet-
ter understood as assemblages with multiple, dynamically interacting components. In the original French (Deleuze &
Guattari, 1980), agencement references continual, inherently dynamic processes (Braun, 2008) of “reassembling and
disassembling … dispersion and transformation” (McFarlane, 2009, p. 566), conveying “the irreducible social complexity
in the world” (Escobar & Osterweil, 2010). An assemblage lens can “disrupt … dichotomies” (Ghoddousi & Page, 2020,
p. 5), helping unpack intricacy and nuance. Assemblages and their components are not permanent, independent unities
but possess capacities realised through relationships: constantly-­in-­flux interactions among components and with other
94 |    HOROWITZ

assemblages and components thereof, each of which can itself be viewed as an assemblage (DeLanda, 2016; Dittmer, 2014;
Fox & Alldred, 2015; Potts, 2004). Assemblages are characterised by “relations of exteriority” among semi-­autonomous
components that can plug in and out but nonetheless work together to create “emergent properties,” not possessed by
isolated components but produced through interactions. Emerging bottom-­up through “upward causality,” assemblages
also work top-­down (“downward causality”), both enabling and constraining their components (DeLanda, 2016).
Assemblage scholarship has long recognised the roles “unruly” nonhumans play in assemblages (Robbins & Marks,
2010), including material objects such as water (Bakker, 2003; Jones & Macdonald, 2007), pathogens (Voelkner, 2011),
and industrial waste (Swanton, 2013). These “material” components of assemblages are accompanied by “expressive”
components, including linguistic and nonverbal communications, which shape the assemblage’s identity through “cod-
ing” processes such as rituals, narratives, or rules, which can be “overcoded” by governing assemblages (DeLanda, 2016).
Recent scholarship examines emotions as crucial in generating expressive components of assemblages (Jones & Clark,
2019; Rossiter et al., 2015), or even as assemblages themselves (Johansen, 2015). Here, in line with Driver’s insight (see
above) that interests are shaped by ideologies and associated emotions, I will attempt to show that interests, too, can form
integral –­ yet conflicting –­ assemblage components.
Interests are inherent to bureaucracies, which are assemblages involving “diverse state agencies with competing vi-
sions, mandates and techniques” (Li, 2007, p 276). Different agency missions help define agencies’ interests, and are in
turn informed by institutional cultures, emergent “system[s] of meanings” (Howard-­Grenville et al., 2008, p. 81) that
work top-­down to shape components’ behavior, including ways issues are conceptualised, prioritised, and addressed. An
institutional assemblage’s identity, how members understand its distinguishing values and aims, also shapes an agency’s
mission. Military culture, in particular, codes for obedience to institutional norms (Bennett, 2018) such as “order, hierar-
chy, and division of function,” and views “civilian control” as central to its identity (Huntington, 1957, p. 79). Even within
an institutional assemblage, distinct components –­ subcultures and individuals –­ encompass different sets of beliefs,
moral commitments, and goals, which may conflict (Faulconbridge, 2008).
Societal ideologies may also be viewed as assemblage components, expressed through discourses and coded by
norms, and able to plug into and out of assemblages. Ideologies inform interests, sometimes through relations of
exteriority, as external pressure on decision-­makers who fear negative consequences (e.g., damaged institutional or
individual reputations, boycotts, legal sanctions, litigation, etc.) if they are perceived by others as acting contrary to
those ideologies’ associated beliefs and values (Horowitz, 2015). Additionally, ideologies can plug into an assemblage
as they are “internalized” by individual decision-­makers, who (at least sometimes) act accordingly (Risse & Sikkink,
1999, p. 10). Judges’ decisions, for instance, tend to align with their personal politics (Howard & Segal, 2002). Thus,
ideologies and moralities are deeply intertwined, and both are deeply linked to emotion, which is key to forming and
maintaining assemblages (Ghoddousi & Page, 2020). While moral codes may include deference to authority, some
stem from more “empathic forms of motivation” such as “fairness and the avoidance of harm;” that is, “social justice”
(Strupp-­Levitsky et al., 2020, p. 6, 15). Individual decision-­makers’ perceived interests, and associated decisions, may
reflect their identity group’s morality (Mann, 2013), or may be grounded in their own empathy –­ the “ability to feel
whatever another person is feeling” (Haidt, 2003, p. 862) –­ especially toward those they view as vulnerable (Horowitz,
2013). Empathy for particular groups or in response to particular issues may result from personal experiences and
relationships; for instance, male judges who have daughters are more likely to decide cases in a “feminist” manner
(Glynn & Sen, 2015).
Any tendency toward empathic decision-­making is, however, countered by pressure from capitalist assemblages, pre-
dominantly composed of wealthy white men and their material self-­interest. These “power elites” were described by C.
Wright Mills (1956), albeit overly simplistically. Robert Dahl (1961) challenged Mills’s theorisation of concentrated power
through empirical case studies that depicted a “pluralist” society with power more widely distributed, including among
civil society groups who exercise important checks upon their leaders; other scholars argued that power relations are
dynamic and in flux (Bachrach & Baratz, 1962; Polsby, 1960). “Multiple-­elite theorists” (McFarland, 2007, p. 51), while
agreeing with Dahl’s denial of the existence of Wright’s unitary “power elites,” used similar empirical methods to find
that special interests do exert undue influence in particular areas of policy-­making relevant to their own interests. These
“islands of oligarchy” (McFarland, 2007, p. 52) create power imbalances within American society and government (e.g.,
Lowi, 1964). Perhaps the most convincing explanation of multiple-­elite theory was Mancur Olson’s “logic of collective
action” (1965), which argued that small coalitions of producers, through collusion and lobbying, would inevitably domi-
nate many policy areas, shaping law to suit their business interests, ultimately causing inefficiencies and widespread eco-
nomic decline. Corporate elites largely achieve undue influence through “regulatory capture” (Mitnick, 2011), offering
direct benefits, such as campaign contributions, to regulators and legislators in order to win their sympathies. Clearly,
HOROWITZ    | 95

government elites’ interests, as components of bureaucratic or political assemblages, are complex and dynamic, and con-
stantly in relation with other assemblages; unsurprisingly, these interests may come into conflict.

2.3 | Indigenous cultural heritage preservation as legal production of space

Here, I examine elites’ “conflicts of interests” over Indigenous cultural heritage preservation as controversies over the
legal production of space –­ the organization of space so as to control it, through regulatory/judicial and technical pro-
cesses, toward economic, strategic, and political aims (Elden, 2010). Geographers have engaged with CRT to explore the
grounding of racial inequities in the legal production of space (e.g., Ford, 1992; Lai, 2012; Safransky, 2020). Meanwhile,
scholars’ analyses of settler-­colonial governance systems have demonstrated dispossession of Indigenous Peoples through
law, ideologies, and discourses (Wilson et al., 2021), legalised marginalisation and disruption of Indigenous ontologies
that view “resources” as more-­than-­human (Whyte, 2018), and official undermining of Indigenous land-­tenure relation-
ships (Mollett, 2014). Nonetheless, Indigenous groups may successfully mobilise legal rights, or extra-­legal strategies, to
assert their sovereignty over particular places (Coulthard, 2014; Halvorsen, 2019; Silvern, 1999).
Conflicts between Indigenous cultural heritage preservation and industrial expansion evoke incompatible interests,
based in “competing conceptualizations of space” –­ and of its appropriate production and use –­ which are “grounded
in different ontologies” (Benson, 2012, p. 1445). Indigenous communities’ interests, like those of elites, may be diverse
(Radcliffe, 2018). When an industrial project promises employment or compensation to local residents, this may spark
tensions (e.g., Horowitz, 2010) as some residents embrace an escape from poverty (e.g., Langton, 2012) while others object
to environmental and social harms (e.g., Temper, 2019). Regardless, evidence suggests that Indigenous negotiators are not
willing to trade cultural sites for financial gains (O’Faircheallaigh, 2016); community leaders reject monetary compensa-
tion, striving to prevent destruction or desecration of sacred places (e.g., the Black Hills; see Lazarus, 1991; Ostler, 2010).
Indigenous groups’ interests may be based in understandings of space as relational, not possessive (Palmer, 2020), and
significant places as “ends in themselves,” rather than as “means to an economic end” (Horowitz, 2021, p. 1193).
Industry, of course, views space as a means of generating profit (Smith, 1982). As such, project proponents’ interests
regarding cultural heritage preservation involve minimising time and expense in satisfying legal requirements. Toward
this aim, they seek to “capture” politicians and regulators through financial incentives such as promises of job creation,
tax payments, campaign contributions, or bribes, in efforts to influence the creation, interpretation, or enforcement of
relevant regulations (Etizioni, 2009; Mitnick, 2011). Firms also seek to capture ideologies, framing their activities in ac-
cordance with widespread social discourses so as to win government and public sympathies (Bridge & McManus, 2000;
Horowitz, 2015; Lippmann, 2005). Captured ideologies include “corporate heritage discourse” (Baird, 2017; Weiss, 2014),
which positions corporations in the public eye as responsibly producing (depoliticised, ahistorical) heritage knowledge.
Meanwhile, capitalists build upon racialised hegemonic ideologies that take as “common sense” the legitimacy of a
settler-­colonial legal production of space (Rifkin, 2013) –­ ignoring a history of broken treaties and embracing “the power
geometry of a US settler sense of place which regards itself as absolute” (Palmer, 2020, p. 805).
This paper brings TribalCrit’s insights about the potential for settler-­colonial law to either oppress or empower (see
above) into conversation with assemblage thinking. I explore how regulating assemblages get caught between other elite
assemblages’ competing interests, in debates over the legal production of space –­ specifically, regulatory protections from
industry’s threats to Indigenous cultural heritage preservation. Demonstrating the roles of emotions and ideologies in
shaping interests, which in turn form integral components of assemblages, my findings suggest that individuals, as com-
ponents of regulatory assemblages, may feel empathy for Indigenous communities’ concerns, and may be influenced by
burgeoning societal ideologies that support Indigenous cultural heritage rights. However, they may be constrained by the
downward causality of ideology-­driven missions and institutional cultural norms, and coded assumptions about legiti-
mate rights to space, as well as pressure from other assemblages represented by politicians and project proponents. Here,
I examine such “conflicts of interests” within and among elite assemblages, in DAPL permitting processes.

3 | BAC KG ROU N D

Controversy over cultural heritage protection within USACE’s permitting of DAPL is a particularly appropriate case for
examining diverse elite interests and conflicts among them, as it involves several decision-­making bodies and individu-
als with multiple interests and concerns. Events surrounding the DAPL controversy have been thoroughly described
96 |    HOROWITZ

elsewhere (e.g., Estes, 2019; Whyte, 2018), so I will avoid repeating them in detail here, instead providing information
specifically relevant to this paper’s analysis.
While oil pipelines (unlike other pipelines, e.g., natural gas) require no federal permit for construction, they require
federal permits for activities that may discharge dredge or fill material into waters of the United States,1 and for segments
that cross or affect navigable waters.2 However, these permits may be pre-­approved under a nationwide permit, which
pre-­authorises a group of similar activities, each considered to have only minor impacts on waters and wetlands. DAPL
water crossings were permitted under Nationwide Permit 12, so the vast majority did not require the company, Energy
Transfer Partners (ETP), to contact USACE before construction. Nonetheless, ETP needed to request an easement to
cross Corps-­managed, federally owned land at the Missouri River.3 This triggered Section 106 of the National Historic
Preservation Act (NHPA),4 which requires federal agencies to consider impacts, on historic properties, of activities in
which they engage or which they permit.
This crossing lies half a mile from the Standing Rock Sioux Reservation, home to the Standing Rock Sioux Tribe
(SRST), for whom the Missouri River is the only water source (Figure 1). SRST is a federally recognised tribe with a trust
land base of 841,700 acres and an estimated 15,568 enrolled members (US Department of the Interior, ), most of whom
identify as Lakota or Dakota (Standing Rock Sioux Tribe, ). Although often referred to as “Sioux,” a more appropriate
name for the Lakota and Dakota Nation to which SRST belongs is “Oceti Šakowiŋ,” meaning seven council fires.

4 | M ET H ODS

I conducted 34 in-­person semi-­structured interviews, May−June 2018 and May−June 2019, with SRST government offi-
cials and other Tribal members, law enforcement officers, non-­profit representatives, government officials, and lawyers,

F I G U R E 1 Standing Rock Sioux Reservation and the Dakota Access Pipeline. (Adapted with permission from the work of Nikolay
Golosov; in color online.)
HOROWITZ    | 97

plus 29 telephone interviews in 2017−2021 with lawyers, activists, academics, and current and former government of-
ficials (both labeled agency “representatives” for anonymity’s sake). Additionally, several Freedom of Information Act
requests provided email exchanges involving Corps representatives. I use pseudonyms for all participants.
Due to ongoing litigation, interviewees could not always discuss DAPL, so I chose to privilege a more general analy-
sis with a focus on DAPL where possible. While SRST members generously participated in many interviews, providing
important perspectives on regulatory processes, I direct primary analytical attention here to US government elites in an
effort to achieve what Laura Nader calls “studying up:” “to study the colonizers rather than the colonized, the culture
of power rather than the culture of powerlessness, the culture of affluence rather than the culture of poverty” (1972, p.
289). Important critical scholarship has examined resistance to resource extraction and transportation in settler-­colonial
societies (e.g., Bosworth, 2021; Curley, 2019; Gedicks, 2001; Gottardi, 2020; LaDuke, 1999; LeQuesne, 2019; Simpson & Le
Billon, 2021; Van Sant et al., 2021); here, instead, I investigate settler-­colonial government elites to better understand how
they do not currently, but potentially could, serve citizens rather than simply enabling industry. Conducting in-­depth
interviews, and reviewing colorful internal email exchanges, allowed me insight into Corps culture, and employees’ par-
ticular interests and emotions.
Below, I outline tensions involving a diversity of interests, regarding tribal cultural heritage, within the USACE assem-
blage. Then, I discuss “conflicts of interests” between USACE and other federal decision-­making assemblages (agencies,
courts, Congress). Ultimately, I conclude that USACE did not simply represent monolithic “white elite interests” but was
caught between its own, and other assemblages’, complex, competing interests, based not only in expectations of material
benefits but also in morality and empathy.

5 | DI V E R SIT Y OF IN T E R E ST S AND CONC ERNS WITHIN USACE

The USACE assemblage comprised employees, buildings, policies, and –­ I argue –­ diverse, sometimes conflicting inter-
ests. These interests were dialectically shaped, both through relations of exteriority with other assemblage components,
including employees’ emotions (such as empathy and ideological commitments), and through downward causality, by
the emergent properties of USACE’s institutional mission and military culture.
Corps representatives indicated multiple reasons behind the agency’s interests in demonstrating sensitivity to tribes’
concerns about impacts to sacred sites. On a pragmatic level, one representative, Molly, observed that districts or divi-
sions that had experienced negative consequences following missteps in permitting processes were particularly eager to
take advantage of training sessions offered through the USACE Tribal Nations Program. Although, in earlier times, “no
[USACE employee] took the NHPA seriously,” tribal lawyers were now extremely knowledgeable about permitting pro-
cesses and could get the Corps “in trouble” if it failed to comply with the law; a tribe could threaten a lawsuit, publicly
shame the Corps, or contact their (or any sympathetic) congressperson. “And if we get a call from a congressional office …
everything stops” (9 August 2019). In other words, USACE interests included avoiding the consequences of violating the
law, made salient because tribes were gaining power, in part through connections to other assemblages in which empathy
and ideological commitments sided with tribal concerns.

5.1 | Empathy as an assemblage component shaping USACE interests

However, Molly had also noticed that, over time, USACE employees’ “consciousness has been raised” (9 August 2019),
suggesting the burgeoning of a genuine, empathic interest in tribal welfare, as a component of the USACE assemblage.
Other Corps representatives similarly characterised this increased sensitivity as a shift from ignorance into awareness
and understanding. Some noted that commanders had previously been unaware even of the presence of tribes in their
districts, but the Corps’ growing Tribal Nations Program, spearheaded by an archaeologist passionate about tribal consul-
tation, had developed, beside training sessions, extensive guidance for working with tribes, including policies, booklets,
and brochures. The program had also created a “cadre” of tribal liaisons who could offer information and advocate on
behalf of tribes (Miles, 12 June 2020). Moreover, several representatives pointed to district leaders’ recent service in the
Middle East, where they had interacted with “tribally-­based organizations,” gaining cultural competencies and apprecia-
tion that carried over into their interactions with US tribes (Gill, 12 June 2020). The empathy commanders developed
overseas contributed to the emotional production of an interest in Indigenous cultural heritage, a new component plug-
ging into the USACE assemblage.
98 |    HOROWITZ

This sensitivity varied among commanders and districts, demonstrating the diversity of interests within the USACE as-
semblage, largely stemming from individual ideological and emotional commitments. Molly recalled “several colonels and
generals who were revered among the tribes and would listen to anything the tribes said, but on the other hand there were
ones that stuck their heads in the sand. It’s kind of an individual’s personality” (9 August 2019). In the case of DAPL, SRST
members and advocates reported having observed empathy from Army officials, such as the Assistant Secretary of the Army,
constrained by downward causality: “I think she had a good heart and she wanted to do the right thing but she had to do what
she had to do, for the government” (Roger, 4 June 2019). Similarly, the USACE District Commander at the time was an “up-
front guy” who, in the words of a Tribal member, Ralph, was “trying to do the right thing for the Standing Rock Sioux Tribe in
not allowing the permit of the Dakota Access Pipeline to go underneath the river” (4 June 2018). In Ralph’s view, the District
Commander had understood the “irreparable harm” that the pipeline would cause to Tribal resources and had advocated for
an Environmental Impact Study, eventually required by the Department of the Army under President Obama’s guidance –­
although quickly overturned under the Trump administration, exemplifying differences between elite assemblages’ interests
(4 June 2018).
In Molly’s experience, sympathetic commanders –­ often recently hired and “schooled differently” –­ could influence
others to “pay attention” to regulations like Section 106. Individual differences had broader impacts because of the army’s
structure; commanders exerted considerable downward influence within their own district: “It’s like your own fiefdom.
You run it how you want to run it” (9 August 2019). Given that federally coded regulations regarding cultural heritage
remained poorly enforced, commanders’ sensitivity to tribes’ concerns played a huge role in their own coding through
local implementation (Gill, 12 June 2020). Thus, a commander’s empathy shaped a district’s perceived interests, through
contingent relations of exteriority, as commanders plugged into and out of each district assemblage, itself in turn a com-
ponent of the USACE assemblage.

5.2 | Corps mission and culture as shaping USACE interests through

downward causality

While the Army’s intensely hierarchical structure could benefit tribes if the local district commander was sympathetic
to tribal concerns, conversely, the Army’s rigidity inhibited mutually respectful communication and positive relation-
ships with tribes, particularly regarding consultation processes. An emergent property of the army, military culture was
coded through norms, protocols, and discourses, and deeply shaped USACE identity and procedures through downward
causality. Tribal members noted that USACE employees were only willing to follow agency rules and largely ignored or
resented tribal protocols and practices. For instance, according to research participants, the Corps often notified tribes
of important matters through written correspondence, even if tribes required an in-­person visit, and officers displayed
irritation during consultations when elders spoke for extended periods of time in accordance with tribal norms. A lawyer
recounted how, when meeting with one Oceti Šakowiŋ tribe about DAPL, USACE representatives ignored the Tribe’s
consultation protocols, which prohibited government representatives from wearing military apparel due to Tribal mem-
bers’ historical trauma, and arrived sporting fatigues. When an elder commented on this during the meeting, the District
Commander “got so upset. He said, ‘You’re disrespecting the country, you’re disrespecting the military.’ He slammed his
notebook shut and stood up to leave,” but eventually agreed to continue the meeting (Eileen, 9 May 2019). Afterward,
according to this lawyer, the Tribe invited their visitors for a meal they had prepared, but the officials hurriedly departed
as an elder hastily stuffed fry breads into their coat pockets. More worryingly, although Tribal protocols treated this as
a pre-­consultation meeting, USACE representatives never returned for an actual consultation. The lawyer felt that the
Corps was not open to cultural norms different from its own; tribes:

Might not be so direct and to the point as what the Corps expects. But that’s just the way things are done. So
that was something that they didn’t have patience for and they didn’t want to hear all these opinions neces-
sarily. (Eileen, 9 May 2019)

USACE’s apparent tendency to hurry through consultation processes reflected a long-­standing, top-­down cultural
norm of completing projects in a timely manner: “Our leadership is military, right? And so … the overarching goal is
always to execute the mission, deliver the program” (Dawn, 18 June 2020). Any distraction from completion of a project
was unwelcome; as Corps representatives explained, “the Corps sees any confrontation as an attempt to stop them from
completing their mission” (Gill, 12 June 2020). Trained as engineers, Corps employees “just want to build a bridge or
HOROWITZ    | 99

build a dam or whatever. And tribes are an impediment” (Molly, 9 August 2019). In other words, USACE’s perceived
interest –­ its mission –­ of serving the national interest through infrastructure development remained steadfast, as its web-
site confirmed: “As in its earliest days, the Corps of Engineers still thinks of itself as an organization ready to help build
the nation’s infrastructure” (USACE, n.d.). The agency prioritised the national interest over local communities’ interests,
in line with its long history of dispossessing Indigenous peoples when building infrastructure, both at home and abroad
(Khalili, 2018). Indeed, the federal land for which ETP needed an easement was the Lake Oahe project, part of USACE’s
Pick-­Sloan Plan which by 1962 had built six dams along the Missouri river, furthering hydropower development and
other national interests, and displacing thousands of Oceti Šakowiŋ families as the flooding destroyed homes, forests,
farmland, and ancestral graves (Capossela, 2015; Lawson, 2009).
In addition to their own construction projects, USACE is responsible for permitting private developers’ projects. In
that role, too, in the interest of timely completion of administrative duties, USACE adopted a restricted interpretation
of its responsibilities. Legally, as the Department of the Interior’s solicitor explained, “[t]he Corps enjoys broad discre-
tion under the MLA [Mineral Leasing Act] to decline a requested use of an interest in federal land,” including DAPL’s
passage under Lake Oahe, particularly as “[t]he government-­to-­government relationship between the United States and
the Tribes calls for enhanced engagement and sensitivity to the Tribes’ concerns” (Department of the Interior, memoran-
dum, 4 December 2016). Thus, restrictions on Corps responsibilities were largely self-­imposed, coded not in federal law
but by institutional culture, as a lawyer explained:

I think it’s a sort of cultural thing where they view their job as a very narrow one, which winds up being a
check-­the-­box exercise of, “Does this meet the minimum standards under the law?” rather than empowering
a broader look consistent with the public interest, which the law completely allows. … They really try to avoid
broadening their jurisdiction to look beyond the narrow confines of immediate impacts on water. (Fred, 22
April 2019)

USACE’s restricted view of their duties extended to their responsibilities to tribes; as a representative recalled, the
Corps had only reluctantly, over the last few decades, acknowledged this responsibility: “It was following some court
decisions and some policy decisions that the entire federal government, all agencies are responsible for essentially fulfill-
ing the nation’s trust responsibilities to tribes; that began the movement towards having conversations with tribes” (Gill,
12 June 2020).
SRST members commented on USACE’s seeming hurry to finalise the permitting process. In Tribal members’ analy-
sis, the Corps viewed DAPL’s completion as in the national interest, supporting US energy independence. With its focus
on quickly facilitating this infrastructure, USACE manifested a clear disregard for Tribal interests and concerns when
permitting DAPL, as a Tribal member observed: “There’s such a rush to get this project done, that they’re just going to go
through the motions and check off the boxes,” whereas “what we wanted was for the Army Corps of Engineers to have
a meaningful conversation” (Paul, 27 May 2018). Instead, USACE deliberately overlooked the pipeline’s proximity to the
Reservation, exemplifying its “blinder vision that, ‘We don’t want to accept responsibility for things that we can’t see’”
(Nicole, 29 May 2018). Thus, the downward influence of military culture’s emphasis on efficiency and the national inter-
est conflicted with, and largely suppressed, USACE interests, shaped by empathy, in addressing tribal concerns.

6 | CO N F L ICT S OF IN T E R E ST S IN LEGAL INTERPRETATIONS OF

REG U L ATO RY COM PLIAN CE

Indeed, USACE has long restricted what it can “see” by limiting the area it reviews and limiting consultation with tribes,
referencing its interpretation of the NHPA’s Section 106. Below, I examine how the legal coding imposed by the federal
government stratum was overcoded differently by USACE and other elite assemblages, reflecting and creating conflicts
among distinct, mission-­driven interests.

6.1 | Conflicts with ACHP over the overcoding of Section 106

Due to tribes’ extensive lobbying, NHPA amendments in 1992 recognised “properties of traditional religious and cultural
importance to an Indian tribe or Native Hawaiian organization” and required federal agencies to consult tribes as part of
100 |    HOROWITZ

their Section 106 duties.5 The NHPA also created the Advisory Council on Historic Preservation (ACHP), an independ-
ent federal agency mandated to support the NHPA’s “framework to foster a new ethic through all levels and agencies
of the federal government … to consider the impact of their actions on historic properties” (ACHP, n.d.-­a), which views
itself as “a strong advocate for protecting the heritage of indigenous peoples” (ACHP, n.d.-­b). Indeed, in 2013 ACHP
adopted a “Plan to support the United Nations Declaration on the Rights of Indigenous Peoples” (ACHP, 2013), and also
identified “intersections” between the Declaration and Section 106 (ACHP, n.d.-­c). Soon after its creation in 1966, ACHP
formulated regulations for implementing Section 106,6 updating these in 1999 to incorporate the 1992 amendments.
Meanwhile, in 1986 USACE created its own interpretive regulations for Section 106, nicknamed “Appendix C,”7 which
conflict with the ACHP regulations, and which were not updated following the 1992 NHPA amendments (see Lorentz,
2014).
One significant inconsistency between these two overcodings involves the definition of “area of potential effects”
(APE), which the ACHP defines as the entire area “within which an undertaking may directly or indirectly cause alter-
ations in the character or use of historic properties,”8 and which Appendix C defines as the much smaller “permit area,”9
defined by the district engineer –­ and not, as stipulated by ACHP guidance, necessarily in consultation with the relevant
State Historic Preservation Officers and/or Tribal Historic Preservation Officers. Clearly, with a less extensive area to
cover, USACE is less likely to uncover legal obstacles to construction, such as historic properties, including traditional
cultural properties (TCPs), which Appendix C does not mention. Processes for identifying historic properties are another
inconsistency: ACHP’s regulations require tribal consultation on potential impacts to historic properties, and require an
agency to provide ACHP an opportunity to comment before terminating consultation efforts; Appendix C does neither. A
federal employee expressed frustration with USACE regulations, which “don’t afford tribes the right to consult in the way
that they are entitled to in the legislation” (Sue, 5 April 2019). Although ACHP remains the only agency legally autho-
rised to create or approve implementing regulations for Section 106 –­ and has never approved Appendix C –­ its authority
can only be upheld through litigation, as the ACHP is not capacitated to enforce regulations. The only published relevant
case confirmed that USACE needed to use ACHP’s regulations in defining the APE;10 nonetheless, the following year,
USACE finalised Appendix C, which the agency continues to use.
These very issues came to the fore in the DAPL permitting process. ACHP (applying its own overcoding) believed
USACE to be responsible for reviewing the entire 1172-­mile stretch of the pipeline, while USACE (using Appendix C)
insisted it was only responsible for the 209 river crossings, about 3% of that stretch, cumulatively 37 miles. Additionally,
ACHP found –­ as it informed USACE, multiple times over the course of more than a year –­ that the Corps had not con-
sulted adequately with, requested appropriate information from, or provided adequate information to relevant tribes
or ACHP, representing a “failure to communicate” (ACHP, letter to Colonel John W. Henderson, 6 May 2016; letters
also sent to: Colonel Joel R. Cross, 31 July 2015; Col. Henderson, 3 February 2016, 15 March 2016; Lieutenant General
Thomas P. Bostick, 19 May 2016; Jo-­Ellen Darcy, 2 June 2016, 19 August 2016). As a federal employee explained, “The
issue of Dakota Access again is because the Corps and ACHP fundamentally disagree about how it is supposed to do
Section 106. And we don’t have this issue with any other federal agency” (Sue, 5 April 2019). In its final correspondence
with the Army on this topic, ACHP sent a letter to the Assistant Secretary of the Army (Civil Works) expressing disagree-
ment with the Army’s determination of “No Historic Properties Affected” and the “hope that the Corps will take the
opportunity to work with the ACHP to resolve these systemic issues” (ACHP, letter to Assistant Secretary of the Army for
Civil Works, 19 August 2016).
Clearly, decision-­making elites had different interests at stake in the DAPL controversy, shaped by tensions between
emotion and institutional mission. Within the USACE assemblage, employees’ empathy with the tribes’ concerns was
constrained by the downward causality of their assemblage’s overcoding –­ here, its insistence on restricting its regulatory
gaze: “They could have personally said, ‘I hate this project, I don’t want to do it,’ but they only have the authority under
Nationwide 12 to look at those crossings” (Manny, 15 June 2020). Meanwhile, ACHP was interested –­ in keeping with
its mission –­ in protecting Indigenous cultural heritage. With no power of enforcement, however, ACHP could now only
await the outcome of litigation.

6.2 | The District Court’s interests shaped by empathy, ideology, and mission

Indeed, the court case was already underway, presided by a judge performing his own overcoding informed by empathy,
ideology, and a perceived institutional mission. On 25 July 2016, USACE had granted permission for DAPL to cross
under Lake Oahe. Two days later, SRST filed a complaint against the Corps in the US District Court in Washington, DC,
HOROWITZ    | 101

primarily claiming that USACE had violated Section 106 by failing to consult adequately with tribes affected by DAPL
(Standing Rock Sioux Tribe v. US Army Corps of Engineers, 2016a). On 4 August 2016, SRST filed a related motion for
preliminary injunction, requesting the Court to enjoin USACE to withdraw its permits for DAPL (Standing Rock Sioux
Tribe v. US Army Corps of Engineers, 2016b). However, on 9 September 2016, the District Court judge, James Boasberg,
denied the Tribe’s motion, concluding that the Corps had “likely complied with the NHPA”11 (p. 1). In his understand-
ing, USACE had offered SRST opportunities to consult, but the Tribe had not provided adequate “evidence that might
indicate that cultural resources would be damaged” (p. 44).
According to a tribal member, Paul, the Tribal Council had chosen to file the case in the federal district court in DC, where
they expected a greater chance of impartiality than in North Dakota, “being that it’s a state that’s pro-­oil” (27 May 2018).
Paul understood that, even without direct interests at play, a judge’s empathy could influence decision-­making: “a lot of
times there’s parties that get hurt by these decisions. So a judge has the most difficult job” (27 May 2018). Indeed, Boasberg’s
memorandum expresses empathy for the Tribe’s concerns about threats to their cultural heritage: “this Court does not lightly
countenance any depredation of lands that hold significance to the Standing Rock Sioux” (p. 58). His statements reflect so-
cietal ideologies of Indigenous cultural heritage as a human rights issue, recognising “[t]he tragic history of the Great Sioux
Nation’s repeated dispossessions at the hands of a hungry and expanding early America” (p. 50) and acknowledging that “[t]
he threat that new injury will compound old necessarily compels great caution and respect from this Court” (p. 51).
Nonetheless, Boasberg clearly viewed his mission as impartially upholding the law. Perhaps the request for a quick de-
cision, intended to halt construction, actually impeded thorough deliberation, which could have resulted in a more favor-
able outcome. In June 2017, the same judge decided that USACE had not fully complied with the National Environmental
Policy Act and would need to perform an Environmental Impact Study for DAPL; in July 2020, he issued a controversial
decision (overturned on appeal) that DAPL –­ by then transporting 570,000 barrels of crude daily –­ would have to cease
operations while the study was conducted. He was not, seemingly, biased against the Tribe’s concerns, but felt it his
duty to decide that the cultural heritage argument per se was not legally valid. While he argued that his options were
constrained by legal parameters (the downward causality of the court system assemblage), others thought a different
outcome would have been legally permissible. As the judge’s decision contradicted ACHP’s support for SRST’s claims, a
lawyer remarked that “the court deferred to the wrong agency” in siding with USACE (Fred, 22 April 2019) and that the
Corps’s unauthorised use of Appendix C rather than ACHP guidelines got “lost in the noise” (Fred, 14 January 2021).
Other lawyers felt that with a different judge, or possibly a different legal team, the case could have been won. Indeed,
interpretations of Section 106 requirements have differed markedly across courts and cases (Benson, 2014).
Meanwhile, just hours after Boasberg’s 9 September 2016 denial of the injunction, other elite assemblages –­ the
Departments of Justice, the Army, and the Interior –­ issued a joint statement asserting that the Army needed time to “de-
termine whether it will need to reconsider any of its previous decisions” and asking the company to “voluntarily pause
all construction activity within 20 miles east or west of Lake Oahe,” evidencing interests distinct from those of the court
system assemblage. Beyond, possibly, empathy for the tribes, an ideological sense of moral responsibility, and concerns
about domestic and global reputations, the departments’ mission-­driven interests evidently included internal security
(which may have temporarily superseded the national security the pipeline represented). Their statement urges “ev-
eryone involved in protest or pipeline activities to adhere to the principles of nonviolence,” while threatening “criminal
sanctions” against anyone who might resort to violence. ETP, however, an assemblage encompassing distinct interests,
declined –­ with impunity –­ to honor the request to pause construction.

7 | CO N F L ICT S OF IN T E R E ST S BETWEEN USACE, DEVELOPERS AN D

POLITICIANS

Developers and politicians had their own sets of sometimes-­conflicting interests, which came into conflict with those of
USACE, in turn further revealing conflicts of interests within the USACE assemblage.

7.1 | Conflicts with developers’ interests

Unsurprisingly, developers’ interests lay in maximising profits by minimising time and money dedicated to regulatory
compliance. Corps representatives recalled complaints about consultation requirements:
102 |    HOROWITZ

People who apply for a permit say, “What do you mean I got to consult with the tribe? What do you mean
you got to take some time and talk to them? Who’s going to pay for it?” Well, applicants have to pay for this
stuff (Manny, 15 June 2020).

More interesting was what interactions between ETP and USACE revealed about the latter assemblage. Early in the
DAPL permitting process, email exchanges between Corps and company representatives evidenced conflict between the two
assemblages’ interests. After the Upper Sioux Community voiced concerns about impacts to cultural sites in South Dakota,
an ETP representative asked USACE staff to “have your archy folks validate if anything was truly there or not before we
spend the money on this,” adding, “[W]e are truly at our limit with this as it has and continues to be very one-­sided in what
is supposed to be a fair process” (19 May 2016). In subsequent internal exchanges, a Corps representative lamented:

The attitude from these guys is just atrocious, it’s pretty obvious it pisses these guys off that they even have to
talk to tribal folks. I don’t give a rat’s ass what they think they need to validate; I was there, heard the concerns
and saw the areas. MY years of experience working with tribal PEOPLE, TCP’s, sacred and archaeological sites
HERE, lead me to the exact conclusion that I have already stated: there is an area of concern that needs to be
avoided if they want a permit for that crossing. (19 May 2016, original emphasis)

His colleague agreed:

Why do we tolerate these comments from an applicant? Someone needs to tell [the ETP representative] the
next RACIST comment will shut down the entire project. This project is ruining our relationships with the
Tribes. Comments like this from private industry is why we (CORPS) have to sit in public bludgeoning ses-
sion in Wagner SD for 4 hours and tolerate the Tribes’ frustration being taken out on our COMMANDER.
Energy Transfer will NEVER understand our Trust Responsibilities. We are responsible not private industry.
We need to establish the rules! (20 May 2016, original emphasis)

While ETP’s interests lay in minimising time and expense, Corps representatives had several interests at stake: avoid-
ing public shaming sessions, ensuring respect for their superiors (informed by a hierarchical institutional culture), and
securing recognition of their decision-­making authority, but also empathy for tribal concerns, maintaining positive re-
lations with tribes, and fulfilling their mission of trust responsibilities. A lawyer recounted that in his experience, such
empathy and sense of responsibility could influence decisions in tribes’ favor, as the law contained enough “gray area” to
allow USACE to find “more than enough grounds to deny the permit,” as he hoped would occur with DAPL:

When these impacts are fully disclosed and transparent, then you get different decisions. And that’s why the
Tribe has been pushing so hard for a full environmental impact statement all these years. At the end of the
EIS process, the Army Corps could still just say, “This is a terrible risk and it might be part of the history of
the genocide of the Sioux people, and it’s an unsafe company, but we’re going to permit it anyway.” Legally,
they can do that. As a practical matter, that’s not how it really works out. (Fred, 14 January 2021)

Conflicts of interests between USACE and developers often manifested as disagreements over the correct overcoding
of federal regulations, particularly the APE, as with tensions between USACE and ACHP. Here, however, the opposite
scenario obtained as companies pressured the Corps not to expand but to restrict the area under consideration, and could
threaten –­ or actually file –­ lawsuits: “We were sued left and right for taking too much area under our jurisdiction, all the
time,” whereas tribes could only sue “if they had the means” (Molly, 9 August 2019).

7.2 | Politicians’ conflicts of interests

Because of their significant financial resources and promise of economic development, companies were also able to exert
pressure on USACE indirectly, via legislators, including:

Very powerful folks in congressional committees for natural resources that say, “We don’t care what your
process used to be. It didn’t allow us to prosper in our resource development … And we’re going to tell you
it’s going to be done and you’re going to do it.” (Miles, 12 June 2020)
HOROWITZ    | 103

Indeed, the “pushback” and “pressure from developers to members of Congress” was behind USACE’s adoption of
Appendix C to expedite the permitting process (Gill, 12 June 2020). Meanwhile, congresspeople experienced pressure
from their constituencies to recognize growing societal ideologies regarding Indigenous rights. According to a Corps
representative, politicians reconciled these “conflicts of interests” through covert hypocrisy:

It’s just good optics for the person in power to say … –­ in public, you know, for the cameras –­ “Yes, we’re
very concerned about the impacts,” … but then when they meet with the Corps, tell ‘em, “You need to move
forward with this as soon as possible.” (Gill, 12 June 2020)

Similarly, DAPL created conflicts of interests for Heidi Heitkamp, North Dakota’s Democratic senator. She had been
elected, in a traditionally Republican state, largely due to strong tribal support and, as senator, introduced several bills
addressing tribal concerns. The tribes hoped for her support in their struggle against DAPL; however, aware of the oil
and gas industry’s economic importance –­ and popularity –­ in the state, she found herself caught between the interests of
the tribes and the (much larger) non-­tribal electorate and, in the interest of winning re-­election, refused to take a stance
against the pipeline. (In 2018, without tribal support, Heitkamp lost the election.)
Conflicts of interests occurred not only for individual politicians but also among congresspersons, evidencing their au-
tonomy as components of the congressional assemblage. When the Army decided, on 4 December 2016, to require an EIS
before granting an easement under Lake Oahe, North Dakota Representative Kevin Cramer called the decision “a very
chilling signal” (BBC News, 2016). In contrast, shortly after a 24 January 2017 presidential memorandum urging USACE
to expedite the permitting process, the former chairs and current ranking member of the United States Senate Committee
on Indian Affairs wrote to President Trump to express empathy for SRST. Referencing “trust and treaty obligations to
the Tribe” –­ part of the US institutional mission –­ they also invoked moral ideology, asking the President to “uphold the
United States’ legal and moral responsibility to meaningfully consult” with SRST (Senators Cantwell, Udall, and Tester,
letter to President Trump, 1 February 2017).
However, the executive branch –­ with its own interests and concerns, depending on who was in power –­ directed
Corps decisions, overriding congresspeople’s (conflicting) pressures. A Corps representative observed that the Trump
administration viewed its mission as supporting industry unconditionally, due (in his view) to material self-­interest:

It happened under Clinton, Obama too. There were certain projects; they said, “Get it done, get it done, get
it done.” It’s just, there’s more of them now and it’s not just like, “Get it done ‘cause it’s really in the national
interest or good;” it’s, “Get it done so me and my friends can make money.” (Manny, 15 June 2020)

Congresspeople, too, could have direct material interests in industrial projects, blurring the distinction between com-
panies’ and politicians’ interests (Molly, 9 August 2019).
USACE complied with politicians’ requests to expedite projects for two reasons. First, material self-­interest came
into play, since the Corps’s budget had to be requested by the President and provided by Congress through annual and
supplemental appropriations: “If you got your congressman pissed off at you, you weren’t gonna get any money” (Molly,
9 August 2019). Indeed, largely due to its decentralised structure, USACE had a long history of “being responsive to
powerful interests within regional and district boundaries” (Dubnick, 1998, p. 72), for example, through “pork barrel”
projects for a congressional district (Del Rossi, 1995). Second, as discussed above, USACE viewed its mission as furthering
national interests through infrastructure development, and oil pipelines were of particular strategic importance as they
were a matter of “national security.” This interest also coincided with the Army’s immediate material interests, as it relied
on oil for its energy-­intensive operations. Together, these motivations superseded districts’ interests in maintaining good
tribal relations (Miles, 12 June 2020).

8 | CO N C LUSION S

In “studying-­up” the controversy over federal regulatory processes surrounding consideration of Indigenous cultural herit-
age in the permitting of the Dakota Access Pipeline, this paper has added nuance to interest-­convergence theory by bringing
it into conversation with assemblage thinking. Some US Army Corps of Engineers commanders and personnel evidenced a
burgeoning empathy for tribes, based in personal experience and ideological commitments. This empathy, and concomitant
interest in cultural heritage, became assemblage components, constrained by downward influences from a longstanding
104 |    HOROWITZ

mission, coded in military culture, of ensuring infrastructure development and national security. Beyond these internal
“conflicts of interests,” USACE was caught between, on one hand, international ideologies and discourses, and pressure
from the Advisory Council on Historic Preservation, which supported protection of Indigenous cultural heritage; and on the
other hand, pressure from a powerful company and politicians pushing for expedited construction. These conflicts of inter-
ests became a power play, putatively revolving around the interpretation and implementation of the NHPA, but ultimately
subject to the vicissitudes of the executive branch. While, unsurprisingly, the pipeline’s construction and operation were
eventually realised, over the objections of the Standing Rock Sioux Tribe and their allies, this case demonstrates that elites
and their interests are not monolithic (or even homogeneous), fixed, or based purely in material self-­interest or expectations
of strategic benefits. Instead, elites’ interests are messy, complex, nonhuman assemblage components –­ multiple, dynamic,
sometimes based in emotions such as empathy and shaped by societal ideologies, yet constrained through downward causal-
ity by institutional missions and cultural norms, as well as by external pressures from other assemblages. All these interests
may come into conflict in the legal production of space, both within and between elite assemblages.
An implication of this multiplicity is that some elite interests have potential for convergence with vulnerable assem-
blages’ interests. While powerful pressure groups’ interests may ultimately win out –­ although not completely, as ETP and
other firms with an interest in DAPL lost at least $7.5 billion because of the controversy (Fredericks et al., 2020) –­ I suggest
that the solution lies not in assuming uniform, and uniformly powerful, “elite interests” but in addressing the privileged
position accorded to industry’s financial interests. Further research is needed on ways this might be accomplished, such
as by creating barriers to industry pressure on regulators, and/or strengthening convergences between Indigenous groups’
concerns and regulators’ ideological commitments to Indigenous rights, even (or especially) if these elites’ sympathies are
shaped by international pressure. Ultimately, recognising sources of pressure and conflicts of interests –­ with the potential
for unexpected solidarities –­ could support an “affirmative politics” (Ghoddousi & Page, 2020), or at least “empathic ago-
nism” (Horowitz, 2013).

ACKNOWLEDGEMENTS
This research was conducted with approval of the Sitting Bull College Institutional Review Board (#SBC188) and
the University of Wisconsin-­Madison Institutional Review Board (#2015-­1336), and under the protection of the NIH
Confidentiality Certificate #CC-­ES-­17-­004. Funding for research travel and for research assistance was provided by the
University of Wisconsin-­Madison. Special thanks to Lakota scholars Dr Richie Meyers and Dr Kelly Morgan for com-
ments on earlier drafts, to Nikolay Golosov for Figure 1, and to all research participants. I am grateful to the editor,
Professor Ben Anderson, and to two anonymous reviewers for helpful suggestions that greatly improved the paper. Any
errors are solely my responsibility.

DATA AVAILABILITY STATEMENT

Research data are not shared, due to ethical restrictions as per Institutional Review Board requirements.

ORCID
Leah S. Horowitz https://orcid.org/0000-0003-3287-5891

ENDNOTES
1
33 U.S.C. § 1344.
2
33 U.S.C. § 403.
3
33 U.S.C. § 408.
4
National Historic Preservation Act of 1966, Pub. L. No. 89–­665, § 106, 80 Stat. 915, 917 (codified as amended at 16 U.S.C. § 470f).
5
National Historic Preservation Act Amendments of 1992, Pub. L. No. 102–­575, tit. XL, § 4006(a), 106 Stat. 4600, 4755–­57 (codified as
amended at 16 U.S.C. § 470a(d)(6)).
6
36 C.F.R. § 800.
7
Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg. 41,206 (13 November 1986) (codified as amended at 33 C.F.R. §
325 app. C).
8
36 C.F.R. § 800.16(d).
9
33 C.F.R. § 325 app. C(5)(f).
10
Colo. River Indian Tribes v. Marsh, 605 F. Supp. 1425, 1441 (C.D. Cal. 1985).
11
Standing Rock Sioux Tribe v. United States Army Corps of Eng'rs, 205 F. Supp. 3d 4, 2016 US Dist. LEXIS 121997, 46 ELR 20168 (United
States District Court for the District of Columbia 9 September 2016, Decided).
HOROWITZ    | 105

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How to cite this article: Horowitz, L.S. (2022) “Conflicts of interests” within and between elite assemblages in
the legal production of space: Indigenous cultural heritage preservation and the Dakota Access Pipeline. The
Geographical Journal, 188, 91–­108. https://doi.org/10.1111/geoj.12421