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Judge won't grant injunction to protect sacred sites in DAPL path

Monday, September 12, 2016

Native youth celebrate at a #NoDAPL rally in Bismarck, North Dakota, on September 9, 2016. Photo courtesy United Tribes News

The #NoDAPL fight continues even after the Obama administration put a crucial portion of the controversial project on hold.

The Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe celebrated on Friday after learning that the U.S. Army Corps of Engineers won't allow construction at a key site near the #NoDAPL resistance camps in North Dakota. But they quickly moved for an injunction in federal court to protect cultural sites and burial grounds that aren't covered by the administration's extraordinary action.

Their request, however, has been rejected. On Monday morning, Judge James Boasberg denied the tribes' motion, noting that the partnership behind the $3.8 billion Dakota Access Pipeline, a 1,172-mile crude oil infrastructure project, has agreed to hold off on construction in certain areas until this Friday.

But while the areas east of Highway 1806, which leads to the Standing Rock Sioux Reservation, and east of Lake Oahe along the Missouri River, remain important, they aren't the ones that the tribes and the #NoDAPL resisters have been concerned about. Dakota Access can still build the pipeline on private lands west of 1806, where a highly-regarded cultural expert reported once in a lifetime discoveries during an initial round of surveys and assessments two weeks ago.

Indianz.Com SoundCloud: Chairman Dave Archambault II of the Standing Rock Sioux Tribe addresses youth in Bismarck, North Dakota. [Audio Courtesy United Tribe News]

"There should be no further destruction or construction,” activist and organizer Winona LaDuke, the founder of Honor the Earth, a non-profit that set up the Red Warrior Camp in North Dakota, said on Friday, underscoring the awareness that the battle is far from over.

The #NoDAPL encampment has grown even larger in the last few days, according to people like Henry Red Cloud, a Democratic candidate from neighboring South Dakota who visited before and after the most recent developments. Estimates put the numbers in the few to several thousands as Indian Country continues to rally to the cause.

"What I’ve seen in my two visits to Standing Rock is the transformative power Indian Country has when we stand together and speak with one voice to protect our waters, our lands, and our sacred places for future generations," Brian Cladoosby, the chairman of the Swinomish Tribe who serves as president of the National Congress of American Indians, said on Friday.

Meanwhile, left-leaning politicians are slowly but surely following the lead of Sen. Bernie Sanders (I-Vermont), a former candidate for president, in expressing solidarity with the movement. Support started trickling out from Democratic lawmakers at committee meetings and hearings in Washington, D.C., last week, when Congress finally returned to work following a seven-week recess.

The Camp has grown a lot these last few days! It's a community led by Native Americans, but made up of every type of person...united in non-violent direct action for our water and a more sustainable future!
Posted by Henry Red Cloud on Sunday, September 11, 2016

"Tribes have the right to self-determination and the right to have a say in decisions that impact their health, sacred lands, and cultural preservation. Too often, there is not meaningful or any consultation with tribal communities regarding development on or near tribal lands," Rep. Raul Ruiz (D-California), the top Democrat on the House Subcommittee on Indian, Insular and Alaska Native Affairs, said in a press release in which he called for a more complete assessment of the pipeline's impact on sacred sites and water resources, something that the Obama administration has in mind with its decision to reconsider the project.

"Our nation has a long and terrible history of environmental and cultural injustices against Native Americans," Sen. Tom Udall (D-New Mexico), who sits on the Senate Committee on Indian Affairs, said in a press release on Friday.

But not every Democrat is rushing to embrace. Sen. Heidi Heitkamp (D-North Dakota), who otherwise is an outspoken advocate on tribal issues, released a carefully-worded and somewhat pained statement on Friday that glossed over the unprecedented nature of the Obama administration's action in regard to the pipeline.

"Going forward, my main focus will be on making sure that tribes are able to exercise their First Amendment right to protest peacefully, and workers are able to do their jobs safely," said Heitkamp, who also sits on the Senate Committee on Indian Affairs.

Ranking Member Raul M. Grijalva is in North Dakota today to show his support for the Standing Rock Sioux's protest...
Posted by House Committee on Natural Resources: Democrats on Sunday, September 11, 2016

Indian Country can't look to Republican allies either. While Sen. John McCain (R-Arizona), a former two-time chairman of the Indian Affairs committee, has repeatedly slammed the Obama administration for its handling of the Gold King Mine disaster that impacted water resources for several tribes in the Southwest, he been quiet even as leaders of the Navajo Nation have repeatedly linked the #NoDAPL struggle to their environmental justice efforts.

Rep. Ann Kirkpatrick (D-Arizona), on the other hand, was among the Democrats who joined Ruiz's call for an investigation into tribal environmental justice issues. She is running against McCain as he fights for re-election this November.

Sanders, who was the first major political figure to announce opposition to the Dakota Access pipeline, is scheduled to speak at a rally in front of the White House on Tuesday. Tara Houska, a member of the Couchiching First Nation who advised Sanders on Native issues during his presidential campaign, is also expected at the event.

Neither Democratic presidential nominee Hillary Clinton nor Donald Trump, the Republican nominee, have mentioned the project.

Please plan to rise up with @BernieSanders & @zhaabowekwe as they stand with Protectors of our water & land. #NoDAPL pic.twitter.com/s7TDiLb7xD
— Save Main Street (@SaveMain_St) September 9, 2016

Attorneys for the Standing Rock Sioux Tribe, the Army Corps and the Dakota Access partnership are due back in court later this week. A status hearing is scheduled at 2pm on Friday in Courtroom 19 of the federal courthouse in D.C.

At a hearing on August 24, an attorney for Dakota Access said the pipeline intends to start moving oil by January 1, 2017. But the attorney was taken aback after being informed about the lack of an easement on Army Corps land at Lake Oahe.

Without that easement, the pipeline cannot carry crude oil along the currently proposed route in North Dakota. The Obama's administration statement on Friday makes clear that approval will not be granted at this time due to issues raised by the tribe.

"The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws," the Department of Justice, Department of the Army and the Department of the Interior said. "Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time."

Additionally, the Obama administration plans to initiate "formal, government-to-government consultations" talks with tribes to discuss how their concerns can be better address when reviewing infrastructure projects like pipelines.

Beyond Friday's hearing, the Standing Rock Sioux Tribe is pursuing an appeal after Judge Boasberg denied its motion for a preliminary injunction against the Army Corps. That portion of the case will be going to the D.C. Circuit Court of Appeals.

Relevant Documents:
Standing Rock Sioux Tribe Notice of Appeal (September 9, 2016)
Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe Motion for An Injunction Pending Appeal (September 9, 2016)
U.S. Army Corps of Engineers Response to Plaintiff's Motion For an Injunction (September 9, 2016)
Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (September 9, 2016)
Federal Court Decision in #NoDAPL Case (September 9, 2016)