Standing Rock Sioux Get DAPL Reprieve: Not From Federal Judge


A federal judge denied the Standing Rock Sioux tribe’s Water Protectors a temporary injunction to halt construction of the Dakota Access Pipeline on Friday afternoon. However, a reprieve came from an unlikely source: the U.S. Army itself.

The North Dakota tribe has challenged the Army Corps of Engineers’ decision to grant permits to the DAPL and its parent company, Energy Transfer Partners, which is based in Dallas, Texas. Although the tribe argued a compelling case, U.S. District Judge James Boasberg in Washington, D.C., denied the tribe’s request for a temporary injunction.

ABC News reported that in the judge’s 58-page ruling, Boasberg argued that the tribe “has not demonstrated that an injunction is warranted here.” Tribal officials and activists, of course, were angry and heartbroken over the decision, as the Army Corps of Engineers had not consulted the tribe as they were required to prior to issuing the permits to the DAPL’s company.

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In August, Standing Rock Sioux tribal chairman David Archambault II wrote an op-ed in the New York Times describing the Standing Rock Lakota tribe’s battle against the DAPL since 2014.

“Our tribe has opposed the Dakota Access pipeline since we first learned about it in 2014. Although federal law requires the Corps of Engineers to consult with the tribe about its sovereign interests, permits for the project were approved and construction began without meaningful consultation.”

Archambault pointed out that although the Department of Interior, The Environmental Protection Agency, and the National Advisory Council on Historic Preservation supported the Standing Rock tribe’s call to protect its cultural heritage, the Corps of Engineers and Energy Transfer Partners “turned a blind eye” to the rights of the tribe. In fact, the planned pipeline route did not even mention the Standing Rock Sioux’s existence, much less bring up the possibility of cultural artifacts or burial grounds.

Common Dreams writes that the DAPL was fast tracked from the very beginning, which means that the Corps of Engineers paid little attention to any environmental or cultural concerns the Standing Rock Lakota may have. The Corps of Engineers used Nationwide Permit No. 12, which exempts environmental reviews that are required by the Clean Water Act and the National Environmental Policy Act.

Protests against DAPL in Denver, CO [David Zalubowski/AP Images]

In his op-ed, Archambault explains that the reason the Keystone XL ultimately failed while the DAPL has experience little resistance is because the Keystone XL crossed an international border between the United States and Canada, which demanded more stringent environmental reviews.

However, given that the Lakota Nation is supposed to be sovereign, would it not stand to reason that the Standing Rock Sioux Tribe could also be considered an international border? After all, the different tribal nations have their own governments, their own laws. They should be treated as sovereign within the context of major construction projects such as the DAPL.

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Vermont Senator Bernie Sanders has voiced strong opposition to the pipeline. Sanders celebrated his 75th birthday on September 8 by drafting an amendment seeking to prevent the Army Corps of Engineers from providing an easement to the DAPL until it fully completes an environmental impact statement. According to the Bismarck Tribune, Sanders presented the amendment to Senate Bill 2848 — the Water Resources Development Act of 2016.

Sanders’ amendment may not be necessary, though. Soon after Judge Boasberg’s denial to stop construction on the DAPL, three major federal agencies released a statement disagreeing with him. The U.S. Department of Justice, the Department of the Army, and the Department of the Interior all released a joint statement regarding the ruling.

“We appreciate the District Court’s opinion on the U.S. Army Corps of Engineers’ compliance with the National Historic Preservation Act. However, important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline specifically, and pipeline-related-decision-making generally, remain. “

The statement described the U.S. Army’s actions going forward, which provides a reprieve to the people of Standing Rock, and those downstream of the Missouri River who could be affected by potential contamination by any future DAPL leak.

“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. Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time.”

The three agencies also suggested that the protests against the DAPL have highlighted a need for serious discussion at the national level in respect to how such construction projects may affect the various tribal nations and the land they live on. The agencies have invited all nations and tribes to participate in “formal government-to-government consultations” on how the federal government could create better relationships with tribes in terms of getting meaningful input, and what new legislation should be introduced to protect treaties and rights of Native Americans.

While this is not a perfect solution, it could be a jumping-off point for important and meaningful conversations on how the federal government can take the lead in protecting the interests of Native Americans, starting with the Standing Rock Sioux Tribe and the DAPL.

[Photo by David Zalubowski/AP Images]

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