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Indian Country joins legal push to block Dakota Access Pipeline

Wednesday, February 22, 2017

A walk in support of the #NoDAPL movement at the Pueblo of Pojoaque in New Mexico on February 18, 2017. Photo: Pueblo of Pojoaque

With all hope lost in the Trump administration, more tribes and tribal advocates are joining a last-ditch legal effort to stop the Dakota Access Pipeline.

The Oglala Sioux Tribe, Pueblo of Pojoaque, the National Congress of American Indians and the National Indigenous Women’s Resource Center and among the slew of allies entering an ongoing #NoDAPL lawsuit in federal court. Citing threats to tribal sovereignty, treaty rights and to future and unborn generations in Indian Country, they are counting on Judge James E. Boasberg to overturn the new Republican regime's approval of the controversial project.

"We all know life cannot exist without the presence of water," reads a quote from Carmen O’Leary, a citizen of the Cheyenne River Sioux Tribe who serves on the NIWRC board of directors. "Life also cannot exist without our life givers, our women."

"Both have to be protected for the future of all people," the quote continues in a brief that was joined by 13 tribes and more than 100 organizations.

The new briefs were lodged on Tuesday and on Wednesday and they follow one submitted by the Great Plains Tribal Chairman’s Association earlier in the month. All represent a coordinated effort to support the Standing Rock Sioux Tribe, whose options for stopping the pipeline have quickly dried up ever since President Donald Trump was sworn into office on January 20.

A directive Trump signed four days later set in motion a cascade of developments far from Standing Rock. The U.S. Army Corps of Engineers, which granted the final approval for the pipeline barely two weeks after the White House order, the Department of the Interior, whose acting leader suspended a pro-treaty legal memorandum without warning, and the Department of Justice, where newly-arrived Trump loyalists are churning out legal arguments in favor of the project's wealthy backers, have effectively shut the door on the tribe.

"It's hard for me to forgive but I know that's what I have to do in order to move forward," Chairman Dave Archambault II said last week at NCAI's winter session in Washington, D.C. "It's hard for me to trust this new administration, the White House, but I know it's what I have to do to move forward."

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The tribe's hopes lie in a motion for summary judgement. It aims to set aside the easement that was granted to Dakota Access earlier this month.

The easement was approved without the completion of an environmental impact statement, or EIS, for the final portion of the pipeline in North Dakota. The tribe and its supporters were using the process to address concerns about treaties, sacred sites and water resources.

The Department of the Army, however, abruptly canceled the review at Trump's directive. The action came without a clear explanation, in violation of the federal government's trust responsibility, the tribe's supporters argue.

"Instead, the Standing Rock Sioux Tribe and other Sioux nations have been singled out for negative treatment. Rather than adhering to the 'most exacting fiduciary standards,' in honoring the government’s treaty obligations to those tribes, federal officials have dispensed with such standards altogether," NCAI wrote in a brief that was joined by 34 tribal governments and 11 other tribal organizations.

The Standing Rock motion is still awaiting a response from the Trump administration and Dakota Access. With progress on the final pipeline crossing in North Dakota moving quickly, both are expected to defend the easement at Lake Oahe along the Missouri River.

The Trump team is already providing hints of how it will respond -- by disclaiming the government's fiduciary responsibilities. In a filing made in response to a different motion by the Cheyenne River Sioux Tribe, the new administration distanced itself from a pro-treaty legal opinion issued by the Solicitor at the Department of the Interior.

"This is not going to end with Standing Rock," Fawn Sharp, who serves as vice president of NCAI, the largest inter-tribal organization in the United Sates, said last week as she called the pipeline a violation of treaty rights.

The next hearing in the lawsuit takes place on February 28 at the federal courthouse in D.C. The Cheyenne River Sioux Tribe will be arguing for a preliminary injunction to prevent oil from flowing through the sacred waters of the Missouri River. The Trump administration is opposing the request.

New #NoDAPL Briefs:
Oglala Sioux Tribe (February 21, 2017)
Pueblo of Pojoaque / Association on American Indian Affairs / University of New Mexico School of Law Natural Resources and Environmental Law Clinic (February 21, 2017)
National Indigenous Women's Resource Center / 13 Tribes / 105 Non-Profit Organizations (February 21, 2017)
National Congress of American Indians / 34 Tribes / 11 Tribal Organizations / 2 Civil Rights Organizations (February 22, 2017)

Federal Register Notice:
Notice of Termination of the Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC's Request for an Easement To Cross Lake Oahe, North Dakota (February 17, 2017)

Prior Federal Register Notice:
Notice of Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC's Request for an Easement To Cross Lake Oahe, North Dakota (January 18, 2017)

Dakota Access Pipeline Approval Documents:
Department of Justice Notice | Department of the Army Approval Memorandum | Notice of Termination of EIS for Dakota Access Pipeline | Easement Letter to Congressional Leadership

White House Documents:
Presidential Memorandum Regarding Construction of the Dakota Access Pipeline (January 24, 2017)
Presidential Memorandum Regarding Construction of the Keystone XL Pipeline (January 24, 2017)
Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects (January 24, 2017)
Presidential Memorandum Regarding Construction of American Pipelines (January 24, 2017)
Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing (January 24, 2017)
Press Release: President Trump Takes Action to Expedite Priority Energy and Infrastructure Projects (January 24, 2017)