How will native tribes fight the Dakota Access Pipeline in court?

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On February 8, the US Army Corps of Engineers backed out and issued an easement authorizing the installation of the Dakota Access Pipeline under Lake Oahe in North Dakota. The move followed a presidential memorandum stating that the construction and operation of the pipeline would be in the “national interest” and paved the way for a final confrontation over the fate of the pipeline.

In response, two Indian tribes, the Standing Rock and the Cheyenne River Sioux, filed new petitions to stop construction and operation of the pipeline. After an initial hearing on these petitions, the federal judge in charge of the case has authorized the construction, but will consider the tribal claims before the oil passes through the pipeline under Lake Oahe. This means that, unlike the voices of thousands of people who have joined the Standing Rock Sioux tribe to protest the pipeline, the next chapter in this fight will be debated by a few lawyers in the silence of a federal courtroom.

While the details of these arguments are complex, as a lawyer specializing in Native American law, I consider the case to address an essential issue at the heart of our legal system: namely, how federal law and the judicial process protect- do they have the fundamental values ​​and structure of the Constitution?

The central questions in the case now are whether the approval of the pipeline and easement by the US Army Corps of Engineers illegally interferes with the religious beliefs of the tribes and whether the body correctly considered water and other tribal treaty rights prior to issuing this approval.

Restoration of Religious Freedom Act

According to the Cheyenne River Sioux tribe, the oil flowing through the pipeline represents the fulfillment of a generations-old prophecy, handed down through the oral traditions of the tribe members, which warned of a black serpent coming to defile the waters. sacred necessary to maintain the ceremonies of the tribes. Beyond the environmental concerns often at the center of pipeline protests, the tribal injunction petition squarely defines the body’s final authorization of the pipeline as an existential threat: destruction of tribal religion and way of life.

One of the main legal questions in the North Dakota Access Pipeline case is whether federal interests can override the religious freedoms of Indigenous groups.
vpickering / flickr, CC BY-ND

The First Amendment to the Constitution guarantees the exercise of religion without government interference. But the Supreme Court, in Lyng v. Northwest Indian Cemetery Protection Association, confirmed in 1988 the Forest Service’s approval of a road through an area of ​​federal land sacred to local tribes, while acknowledging that the road could have devastating effects on their religion.

Then, in 1993, Congress enacted the Restoration of Religious Freedom Act (RFRA), which requires the government to demonstrate a compelling interest and use the least restrictive means to achieve that interest if its actions weigh heavily on practice. religious.

In other words, even if the approval of the Dakota Access Pipeline served a compelling government interest, the RFRA could require the US Army Corps of Engineers to demonstrate that the easement of the pipeline under Lake Oahe would have the least impact. on tribal religion. This approach would be consistent with the Supreme Court’s broad application of the RFRA in a 2014 case not involving tribal interests or federal lands and could pose a significant challenge to the corps, which considered but rejected an itinerary. different which did not pose the same threat to the tribes.

The body and the company behind the Dakota Access Pipeline argue that the risk of a pipeline spill is minimal and that the tribes have failed to raise these religious concerns in a timely manner. Further, the US Army Corps of Engineers maintains that, according to the Lyng case, government action on federal lands should not be restricted because of religious concerns raised by local tribes.

Thus, the resolution of the case will depend on whether the court recognizes the legitimacy of tribal religious concerns and broadly applies the RFRA or, instead, chooses to prioritize federal authority over federal lands. to the detriment of these concerns. The parties will discuss whether religious freedom issues support an injunction on February 27.

Arbitrary or capricious decisions?

In addition to their religious concerns, the Sioux tribes challenge the body’s decisions on the basis of the rights they reserved for themselves in treaties made with the federal government in 1851 and 1868.

The Constitution recognizes treaties as the “supreme law of the land” and, according to a 2016 analysis by the lawyer for the United States Department of the Interior, the Sioux of Standing Rock and Cheyenne River retain rights to water, hunting and fishing reserved by treaty. in Lake Oahe.

The pipeline company argued that the risks to the water supply are minimal and that the tribes did not raise religious concerns earlier in the approval process.
Diversy / flickr, CC BY-NC-SA

Before changing course in February, the US Army Corps of Engineers refused to issue easement last year in order to better understand and analyze these treaty rights.

It is important to note that federal law generally allows courts to overturn arbitrary or capricious decisions of agencies. In a February 14 case, the Standing Rock Sioux tribe asks the court to examine the body’s about-face under this standard and argues that the responsibility of the federal trust, recognized by the Supreme Court since the beginning of the 1800s, requires more than just a review of tribal treaty rights.

The parties will advise treaty rights issues until March, but the judge is closely monitoring Dakota Access’s progress in the meantime.

The ultimate fate of the pipeline will depend on how the courts recognize the rights claimed by the Sioux tribes, rights rooted in the values ​​and structure of the Constitution – precisely the kind of rights our rule of law and federal courts are meant to protect. .

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