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Friday, December 8, 2023 | Back issues
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Tribe Denied Religious Injunction to Dakota Access Pipeline

Oil is just weeks away from coursing through the Dakota Access pipeline after a federal judge refused Tuesday to halt the project over the religious objections of a Native American tribe.

WASHINGTON (CN) – Oil is just weeks away from coursing through the Dakota Access pipeline after a federal judge refused Tuesday to halt the project over the religious objections of a Native American tribe.

The Cheyenne River Sioux had claimed that the mere presence of oil flowing underneath Lake Oahe in North Dakota would desecrate it, rendering it ritually impure for religious sacraments. The tribe tied this argument to a Lakota prophecy about a "terrible black snake" that someday would destroy the Lakota homeland.

But this prophecy failed to persuade U.S. District Judge James Boasberg, whose 38-page ruling today says the tribe waited too long to raise the claim under the Religious Freedom Restoration Act.

"Only once Dakota Access had built up to the water’s edge and the Corps had granted the easement to proceed did Cheyenne River inform Defendants that the pipeline was the realization of a long-held prophecy about a Black Snake and that the mere presence of oil in the pipeline under the lakebed would interfere with the Tribe’s members’ ability to engage in important religious practices," the 38-page opinion says.

Though the tribe did tell the Army Corps of Engineers that the pipeline could affect sacred sites, which included water, it failed to specifically address religious issues, according to the ruling.

"The tribe never asserted that the pipeline’s operation itself under Lake Oahe — absent any spill or rupture — would somehow compromise the purity of the water and pose a religious-exercise problem," Boasberg wrote.

There is no mention of the black snake prophecy, the court found, in a 2016 declaration that the Cheyenne’s environmental director and research specialist filed when the tribe joined the Standing Rock Sioux Tribe's motion for preliminary injunction.

That declaration also failed to indicate that the mere presence of oil flowing through the pipeline would taint the water, according to the ruling.

"It is not clear what prevented Cheyenne River from also raising its specific religious-exercise concerns with the Corps or in its complaints here,” the opinion states. “The court, accordingly, concludes that defendants have shown that the tribe inexcusably delayed in voicing its RFRA [Religious Freedom and Restoration Act] objection.”

Boasberg noted an indication by the Army Corps of Engineers at oral arguments last week that, had it been made aware of the tribe's religious objection sooner, it might have considered rerouting the pipeline.

"Indeed, defendants previously modified the pipeline workspace and route more than a hundred times in response to cultural surveys and Tribes’ concerns regarding historic and cultural resources," the opinion states.

Now, with completion of the pipeline just days away and oil set to begin flowing by the end of the month, further delay of the project could come at a significant cost to pipeline developers Dakota Access and Energy Transfer Partners, Boasberg said.

"If the tribe were ultimately to prevail on the merits of its RFRA claim, rerouting the pipeline around Lake Oahe would be more costly and complicated than it would have been months or years ago, as doing so now requires not simply changing plans but abandoning part of a near-complete project and redoing the construction elsewhere," the ruling states.

Boasberg also seemed to question the sincerity of the black snake prophecy, an element required to succeed on a Religious Freedom and Restoration Act claim.

Three vehicle bridges and a railroad bridge already cross over the lake, the ruling notes, and a natural gas pipeline running under it was built in 1982. There is also an oil pipeline that crosses the Missouri River about 7.5 miles upstream of Lake Oahe.

"The record is not clear whether the black snake prophecy was made before or after Lake Oahe was created nearly 60 years ago," the opinion says. “The tribe’s brief contends that 'Lakota religious adherents now in their 50s and 60s were warned of the Black Snake by their elders as children.’

"Presumably, the prophecy was issued after Lake Oahe was created; otherwise, the presence of pipelines upstream of the lake, including one that crosses 7.5 miles to its north, would be hard to reconcile with the Tribe’s belief that DAPL alone is the black snake.”

Nicole Ducheneaux, an attorney for the Cheyenne River Sioux Tribe, said in an email that the tribe is disappointed in the ruling.

"Unfortunately, it demonstrates a continued misunderstanding of American Indian religious beliefs and principles by the United States and its institutions," said Ducheneaux, of the Nebraska firm Fredericks, Peebles & Morgan.

"Even though the tribe is disappointed, this preliminary injunction was just the beginning of a much broader legal fight against the Corps’ authorization of this pipeline under the sacred waters of the Missouri River," Ducheneaux continued.

Another motion for summary judgment that the tribe still has pending asks the court to consider if authorization of the pipeline breached the government's trust duty to the tribe, in violation of federal law.

"The tribe’s arguments are very strong and we look forward to a positive ruling on these issues," Ducheneaux said.

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