Options dwindling for tribes as Dakota Access prepares to move oil

Native women lead a round dance in front of the Trump International Hotel as part of the Native Nations Rise march in Washington, D.C., on March 10, 2017. Photo: Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

With options dwindling, the Cheyenne River Sioux Tribe is mounting a last-minute challenge to prevent oil from flowing through the Dakota Access Pipeline.

As thousands of Native citizens and their allies participated in a historic march and rally in Washington, D.C., the tribe was escalating a lawsuit in federal court. New papers filed on Friday call for an injunction to stop the pipeline while the case makes its way through the appeals process.

"The tribe seeks an injunction pending appeal requesting that this court prevent the flow of oil through the Dakota Access Pipeline, which would result in the ultimate harm to tribal members’ free exercise of religion," attorneys wrote in the 18-page document.

The tribe and its citizens contend the presence of the pipeline in the Missouri River renders the water impure for ceremonies like sweat lodges and coming of age rites. They also believe the controversial project fulfills a prophecy of a "Black Snake" that will destroy the Lakota people and their way of life.

The threat was notably on display at the Native Nations Rise event on Friday. A group of younger participants, dubbing themselves the "Black Snake Killers," set up a teepee in front of the Trump International Hotel, just blocks from the White House, to show their opposition to a pipeline that is all but certain to become operational unless the courts take action.

The gesture, coupled with a round dance led by Native women, was more than symbolic. It was a visible message to President Donald Trump, whose administration turned its back on the #NoDAPL movement without consulting the affected tribes.

But while Judge James E. Boasberg has shown sympathy toward the spiritual beliefs of the tribe, he too has refused to stop the project. In a decision issued on March 7, he said Cheyenne River leaders waited too long to seek an injunction based on religious grounds.

The tribe is now taking the matter to the D.C. Circuit Court of Appeals, according to a notice that was filed on Friday. The escalation marks the case's second journey to the higher court, whose judges once imposed an injunction that halted construction activities near the Missouri in North Dakota.

But the situation has changed dramatically in the last few months. After being delayed by the Obama administration, Dakota Access now has permission, in the form of an easement, to drill under the river and place the pipeline underneath.

At the time of an October 5 hearing in the case, some judges on the D.C. Circuit questioned why Dakota Access kept working in North Dakota despite lacking the easement.

"So it's a gamble," Judge Thomas B. Griffith said during arguments. "You're gambling you're going to win."

The gamble indeed paid off for Dakota Access. Just four days after being sworn in as the 45th president of the United States, Trump ordered his administration to consider the pipeline in an "expedited" manner.

Barely two weeks after that, the U.S. Army Corps of Engineers agreed to issue the easement to Dakota Access and work promptly began on the final portion of the 1,172-mile project in North Dakota.

Oil is now set to flow through the pipeline as early as next week, according to the project's wealthy backers. According to a status report filed on Monday, construction crews are ready to place the pipe below the Missouri by the end of the week.

"The company anticipates pulling the pipe through this week and then commencing final testing," attorneys for Dakota Access wrote.

"As a result, Dakota Access projects that oil may be introduced in this part of the line between Monday, March 20, 2017 and Wednesday, March 22, 2017, depending upon the success of the testing," the filing continued.

Dakota Access filed another status report in federal court on March 13, 2017, indicating work on the final portion of the pipeline in North Dakota is almost complete.

The timeline means Cheyenne River is running out of time to secure an injunction, either from Judge Boasberg or from the D.C. Circuit. Tribal attorneys expect to file "emergency" papers if the injunction is denied while the appeal is being pursued.

Leaders of the Standing Rock Sioux Tribe are also running out of options. They have asked Boasberg to set aside the easement granted to Dakota Access but it's entirely possible the pipeline will be operational before arguments are complete on that issue.

"We faced a lot of obstacles and we faced a lot of setbacks," Chairman Dave Archambault II said at a rally in front of the White House on Friday. "But we're not defeated. We're not defeated."

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