Tribes dealt setback with dismissal of challenge to Keystone XL Pipeline

Friday, June 15, 2018

The Cheyenne River Sioux Tribe and the Yankton Sioux Tribe have lost a legal challenge to the controversial Keystone XL Pipeline.

The tribes sued the South Dakota Public Utilities Commission for approving the pipeline route in the state. They raised concerns about oil spills, water resources and treaty rights, Native Sun News Today reported after oral arguments in April.

But none of that was addressed by the South Dakota Supreme Court. In a decision issued on Wednesday, the court said it lacked jurisdiction over the commission's action.

"Because we conclude that the circuit court lacked jurisdiction to hear the appeal, we do not reach the merits of the case," the 16-page decision stated.

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The 1,179-mile pipeline would link the oil fields of Canada’s Alberta province to refineries in the United States. Former President Barack Obama rejected the project in November 2015 but President Donald Trump reversed course and approved it after taking office in 2017.

The Keystone XL route runs through Montana, South Dakota and Nebraska before connecting to existing pipeline infrastructure. Tribes in all three states have opposed the project but have been unable to stop it in the courts.

The Ponca Tribe of Nebraska and the Ponca Tribe of Oklahoma are trying a new approach. They recently accepted the transfer of 1.6 acres in Nebraska in hopes of stopping the pipeline from running through their ancestral territory.

“When we talk about these issues on eminent domain, the Ponca Tribe is painfully aware of what can happen, how the federal government can make up its mind to erase a nation, to erase a people,” Larry Wright Jr., chairman of the Poncas in Nebraska, said during a deed signing on June 10.

TransCanada, the Canadian firm behind the pipeline, has used eminent domain in order to acquire land for the project. It's unclear whether tribes can be forced to give up their property, even if it's held in fee status, due to their sovereign immunity.

The U.S. Supreme Court could have provided guidance on the issue with its recent decision in Upper Skagit Indian Tribe v. Lundgren. Instead, the justices clarified that a prior ruling cannot be used against tribes to abrogate their immunity in property disputes.

The Ponca tribes have not decided whether to seek trust status for their new property, an official told Kevin Abourezk earlier this week. The land lies along the Ponca Trail of Tears, the path they were forced to walk 141 years ago when the federal government ordered them to move to Oklahoma.

“My children back here, they’re all named for those who walked this trail you’re standing on, and when we call their names, we’re calling those spirits, and they’re here with us this day,” Casey Camp-Horinek, a council member from the Poncas in Nebraska, said during the ceremony this past Sunday.

Art and Helen Tanderup, who own a farm along the Trail of Tears, deeded the land to the tribes. They have been planting sacred Ponca corn on their property for five years.

Read More on the Story:
Keystone XL Pipeline: South Dakota high court dismisses appeal (The Associated Press June 14, 2018)
In possible roadblock for Keystone XL, pipeline opponents gift land to Ponca (The Omaha World-Herald June 14, 2018)

South Dakota Supreme Court Decision:
IN THE MATTER OF KEYSTONE XL PIPELINE, In Re: CHEYENNE RIVER SIOUX TRIBE/YANKTON SIOUX TRIBE/DAKOTA RURAL ACTION, 2018 S.D. 44 (June 13, 2018)