Tribal citizens and their allies rally in front of the Trump International Hotel in Washington, D.C., on March 10, 2017, as part of the Native Nations Rise event. Photo by Indianz.Com (CC BY-NC-SA 4.0) / More on Flickr

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Tribes finally given access to Dakota Access Pipeline decision

Thursday, October 4, 2018

Tribes have finally been given access to the Trump administration's revised Dakota Access Pipeline decision but Indian Country and the general public are still being kept in the dark.

According to a new court filing, the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe were recently given a "version" of the decision. A firm date wasn't given but it appears it happened sometime after September 24, or almost a month after the U.S. Army Corps of Engineers affirmed a prior decision to approve the pipeline.

The reason it took the tribes so long to receive a copy was that it was undergoing a "confidentiality review," according to the filing. As part of that process, the Army Corps asked the Pipeline and Hazardous Materials Safety Administration, another federal agency, to review the analysis and flag any "information that should be redacted from a publicly available document."

"The Corps received the results of PHMSA’s review on September 24, 2018 and has reviewed and incorporated PHMSA’s comments into the remand analysis," the October 1 filing stated.

The tribes, as well as the backers of the pipeline, are now reviewing the decision to determine whether further redactions are warranted, according to the filing. That process will continue for the next couple of weeks, according to a schedule approved by a federal judge on Tuesday, meaning the document can't be released to anyone else for the time being.

"The parties have agreed that until the document is subject to public release by the Corps, it shall be treated as covered by the protective order in this case," attorneys wrote.

Once the additional reviews are complete, the Army Corps will release a version that Indian Country and the public can see. And the tribes will be able to determine their next steps in the battle.

"The tribes have not previously had the opportunity to review the Corps’ Remand analysis and make appropriate governmental-level decisions as to whether and/or how to proceed with this litigation," the filing stated.

The filing was a joint status report signed by attorneys for the tribes, the federal government and the pipeline backers. All are parties to ongoing litigation that questions whether the final portion of the controversial project was approved in accordance with federal law.

As part of the case, Judge James Boasberg in June 2017 ruled that the Trump administration approved the final portion without fully addressing tribal objections about treaty rights, oil spills and environmental justice. However, he declined to halt operations of the pipeline, which began transporting oil earlier that month.

The final portion crosses Army Corps managed land at Lake Oahe along the Missouri River. The site is less than a half-mile from the northern border of the Standing Rock Sioux Reservation.

Though the land is not currently considered Indian Country, it is covered by treaties signed between the Sioux Nation and the United States. The tribes retain hunting, fishing and other rights on that territory.