The Yankton Sioux delegation was among plaintiffs at the South Dakota Supreme Court to argue for reconsideration of the state Public Utilities Commission’s permit renewal for TransCanada Corp.’s tar-sands crude transport route across unceded 1868 Ft. Laramie Treaty territory: From left: Thomasina Real Bird, Jennifer Baker, and Jason Cooke. Photo by Talli Nauman / Native Sun News Today
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Native Sun News Today: Tribes take Keystone XL Pipeline case to top court



Tribes challenge Keystone XL Pipeline at South Dakota Supreme Court

By Talli Nauman
Native Sun News Today
Health & Environment Editor
nativesunnews.today

PIERRE – Tribes challenged TransCanada Corp.’s Keystone XL Pipeline construction at the South Dakota Supreme Court here on April 17, asking the five-judge panel to reverse a lower court’s approval of the state Public Utilities Commission permit renewal for the private infrastructure project.

TransCanada Corp., urged on by counsel for the commissioners, countered that the judges should let the renewal stand so that the Canadian company can complete the last leg of the line through unceded 1868 Ft. Laramie Treaty territory, enabling the shipment of tar-sands crude oil from Canada to refineries and export facilities on the Gulf of Mexico.

Arguing for tribes’ right to due process, Cheyenne River Sioux Tribal Counsel Tracy Zephier said her tribe “is in a fight for its life.” To open the courtroom remarks, she pronounced the internationally celebrated Lakota phrase “Mni Wiconi,” meaning, “Water is Life.”

She noted that the tribe also is a plaintiff in another court case -- against the Dakota Access Pipeline, or DAPL, which inspired pipeline fighters worldwide to claim “Mni Wiconi” as their rallying cry.

Both hazardous pipeline projects are “threatening our water supply,” she said. The Keystone XL Pipeline, or KXL, would be built across the Cheyenne River just upstream from the reservation boundary, and the recently completed DAPL already carries crude oil across the Missouri River upstream from a tribal drinking water intake.

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“We have had no choice but to intervene, and tens of thousands of dollars later, we do not believe the proceedings before the Public Utilities Commission were fair,” she said.

Thomasina Real Bird, counsel to her plaintiff Yankton Sioux Tribe, raised the specter of an onslaught of construction workers housed in pop-up man-camps, who likely would avail themselves of the tribe’s casino, straining the local population and services.

The pipeline also poses a threat to the tribe’s treaty rights, according to Jennifer Baker, co-counsel for the Yankton Sioux Tribe. “The treaty is the supreme law of the land,” she said, adding that even when treaties are abrogated, the land use rights remain with the tribes.

The Yankton Tribe’s “inseverable ties to the land mean they have a stronger interest than other communities and their interests should have been taken into account,” she told the court.


The hearing took place two days before the South Dakota Department of Environment and Natural Resources gave notice April 19 that TransCanada Corp. may have additional investigation and remediation to undergo on its most recent pipeline spill “if results from the ongoing groundwater monitoring program indicate contaminated source material remains.”

The spill, which took place in November on the Keystone I Pipeline, disgorged at least twice as much tar-sands crude, aka diluted bitumen (dilbit), on South Dakota farmland as the company initially estimated, making it the largest spill to date on the KXL’s existing sister line from Canada to Texas.

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