Lyle Denniston, our Supreme Court correspondent, examines the controversy over an oil pipeline that will run across land considered sacred by Standing Rock Sioux Tribe, over the tribe's objections.
THE STATEMENTS AT ISSUE:
“The Army will not authorize constructing the Dakota Access pipeline on Corps of Engineers land bordering or under Lake Oahe until it can determine whether it will need to consider any of its previous decisions regarding the Lake Oahe site under…federal laws. Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time. The Army will move expeditiously to make this determination…In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.”
– Excerpt from a public statement on September 9 by the Justice Department, the Interior Department and the Department of the Army, announcing plans to interrupt construction of a small segment of a planned 1,172-mile-long pipeline to carry crude oil from North Dakota to join an existing pipeline in Illinois. The project has been challenged for years by the Standing Rock Sioux tribe because of its fears that construction will disturb sites sacred to Sioux religious tradition.
“The risk that construction may damage or destroy cultural resources is now moot for the 48 percent of the pipeline that has already been completed. As the clearing and grading are the clearest and most obvious cause of the harm to cultural sites from pipeline construction, the damage has already occurred for the vast majority of the pipeline, with the notable exception of 10 percent of the route in North Dakota, including at Lake Oahe.”
– Excerpt from a decision on September 9 by a U.S. District Court judge in Washington, D.C., James E. Boasberg, denying a request by the Standing Rock Sioux tribe for an order to block further construction of the Dakota Access pipeline along its entire length. The judge found that the Corps of Engineers’ power over the project was so limited that any such order would have little effect, and that, in any event, the tribe had not proved that any federal laws have been violated by the Corps. The government agencies stepped to halt some of the construction soon after that decision was announced.
WE CHECKED THE CONSTITUTION, AND…
Tribes of American Indians that gain official recognition from the federal government exist as “nations” in their own right, with broad powers of self-government. But Congress always has the last word over their fate, under the Constitution’s Article I, giving the national legislature the authority “to regulate commerce with the Indian tribes.”
One of the most significant decisions the Supreme Court has ever made about Congress’s authority to deal with the tribes was the 1980 decision in United States v. Sioux Nation. That ruling upheld a 1978 law giving the Sioux tribe a right to file new legal claims for compensation for the seizure of the lands of the Black Hills from them in violation of an 1868 treaty promising that the lands would remain theirs. As has so often happened with tribes throughout American history, that effort ran on for decades without a clear victory for the Sioux.
In 1966, Congress again demonstrated that it cared about tribal interests, this time focusing on the protection of property that had religious significance for tribes. It imposed on government agencies new duties to consult with the tribes as part of the National Historic Preservation Act. Other federal laws also now are available to the tribes as they seek to protect their heritage, including provisions that govern the regulation of the nation’s waterways and the environment in general.
Those are the laws that a part of the great Sioux Nation – the Standing Rock Tribe – has been trying for the past few years to use to protect sacred sites in the Midwest. The tribe, which has a reservation straddling the boundary between North and South Dakota, has been challenging plans for a new oil pipeline – called “Dakota Access” -- that is to run on a path very close to reservation lands, and across (or under) rivers that have religious meaning for the Sioux.
Along with the legal challenge, the tribe, supported by other tribes and environmental advocacy groups, has been staging demonstrations along the pipeline path. The federal government has been urging that protests remain peaceful, but violence has sometimes broken out.
As matters have turned out, the legal part of the tribe’s challenge has just failed. A federal judge last Friday ruled that federal laws, as they apply to the construction of oil pipelines that snake across America, are very limited in their scope. While the tribe was demanding that the Army Corps of Engineers be ordered to use its powers to restrict construction along the entire path of the pipeline, from the Dakotas to Illinois, in order to protect sacred sites, the judge ruled that the Corps’ authority is confined to a very small geographic area, around Lake Oahe. (That is a 370,000-acre lake in the Dakotas, created when the federal government built a huge dam to regulate the waters of the Missouri River, covering up Sioux sacred sites that now lie beneath the lake waters.)
The federal judge noted that the greatest part of the pipeline’s path is on private lands, and that the government can do little to regulate what is done on those lands. And, even when the pipeline path would cross rivers or lakes that are subject to federal controls, the powers of the Corps of Engineers are narrow. Aside from having a duty to consult with tribes about sacred sites on Corps-regulated property, there is not much else the federal government can do, according to the judge. And he ruled that the Corps had done all that it could to try to talk with the Standing Rock Sioux’s tribal leaders about the cultural sites.
But, within hours after that judge issued his ruling, three federal agencies stepped in, and ordered that no construction proceed any further around Lake Oahe until the Corps makes a new study of whether it should have put more restrictions on the pipeline. The agencies promised “a clear and timely resolution.”
Perhaps even more important, the agencies promised a round of formal consultation with Indian tribes in coming weeks on whether to give them even greater input into planning for infrastructure projects, and also to consider with them whether new federal laws should be enacted. “Our message is heard,” the leader of the Standing Rock Sioux told a rally in South Dakota.
