The Challenge to the Dakota Access Pipeline Isn’t Over: Cheyenne River Sioux Take Battle to Court
The camps once occupied by self-named “water protectors” in the fight against the Dakota Access pipeline (DAPL) have been cleared out, but the fight against the controversial oil pipeline continues in a much different setting: the courtroom.
The Cheyenne River Sioux Tribe of South Dakota, often called a “silent sister” to the Standing Rock Sioux Tribe during the #NoDAPL battle, has gone to court. Although the oil is expected to flow any day, the tribe is resilient.
“We aren’t backing down,” Harold C. Frazier, the tribal chairman, told Truthdig.
At stake is Lake Oahe, which is sacred to the tribe and its only source of drinking water. The DAPL is set to carry oil beneath the lake. A pipeline rupture would be devastating to the tribe and numerous others in the area.
The tribe is using two legal strategies, said lawyer Tracey Zephier of Fredericks Peebles & Morgan LLP. She is a member of the Cheyenne River tribe.
The first lawsuit is based on treaty and environmental rights. It argues that the easement permit for construction beneath Lake Oahe was “hasty” and didn’t take tribal treaty rights into consideration.
“The federal government had this responsibility to us, and they have not upheld it,” Zephier said. The case has not yet had a hearing, but she is optimistic that the urgency of the situation will cause it to be heard sometime in April and decided by late April or early May.
The second suit is a claim filed by the tribe under the Religious Freedom Restoration Act (RFRA), arguing that the pipeline would infringe on its religious rights—a claim questioned by U.S. District Judge James Boasberg in court last month. Boasberg denied the claim March 7.
“Had we been successful in making that argument, we could have stopped the construction of the pipeline and stopped the flow of the oil immediately,” Zephier said.
The Cheyenne River tribe is appealing the decision to the U.S. Court of Appeals for the D.C. Circuit, according to Zephier.
But funding legal battles isn’t easy, which is why the tribe is turning to the mass of #NoDAPL activists who once pledged to fight the DAPL alongside them. The Cheyenne River Sioux Tribe has launched a funding campaign on CrowdJustice, an online platform built to help people cover their legal costs. The tribe hopes to raise $10,000 by April 16.
“I think the election has made a lot of people recognize the value of the courts,” CrowdJustice CEO Julia Salasky told Truthdig. While her organization stays neutral on the cases it accepts, Salasky remarked that the Cheyenne River Sioux Tribe’s case is “perfect for crowdfunding.”
“This is a tribe that’s using technology to try and bring people into their issue,” Salasky said.
“We’re concentrating a lot of resources on this battle,” Zephier said, “so any little thing that could be contributed financially helps a lot.”
The fight against the DAPL at first received minimal media coverage, drawing headlines only when thousands of “water protectors,” including U.S. veterans, traveled to North Dakota to protest. Now that most of the demonstrators have left, the tribe hopes the legal battle will receive recognition.
“There’s so much happening on the legal side, even though it’s not really in the media,” Zephier said. “There’s still very much a fight.”
“We don’t have the media that Standing Rock had,” Frazier acknowledged. “The average North Dakota and South Dakota people don’t even know what’s going on.”
Local media, in particular, have made it difficult for local tribes to get their message across to other residents. The Young Turks’ Jordan Chariton, for instance, took a local North Dakota news anchor to task for biased reporting, accusing the anchor of “misinforming [his] audience.”
“The media machine,” Zephier agreed, “has been spewing inaccuracies.”
Both the federal government and mainstream media have underreported the pipeline threat by spotlighting Standing Rock. In fact, the DAPL would affect numerous tribes in the area, and an oil spill would harm tribes “all the way to the south of Mexico,” Frazier said, because Lake Oahe feeds into the Missouri River, which feeds into the Mississippi and ultimately flows into the Gulf of Mexico.
“We have as much stake up there as Standing Rock,” Frazier said. “Everybody’s been excluded. We have never been consulted, and don’t we have a lot at stake?”
He noted that the Cheyenne River Sioux Tribe did not receive the government’s environmental assessment report on the project until last July.
“The Nebraska tribes, they’re chomping at the bit,” he said. “There’s no mention of South Dakota or [anywhere] downstream.”
The fight has only become more difficult in the time since Donald Trump became president. Frazier charged that law enforcement began to increase the rate of arrests of water protectors once Trump took office.
Reversing President Obama’s decision at the end of his presidency to halt the pipeline construction, Trump immediately took aggressive action in favor of the DAPL. Several days into his term, Trump signed an order directing the Army Corps of Engineers to “review and approve” the pipeline “in an expedited manner.” His administration gave final approval to the construction in early February.
“I see a big change,” Frazier said. “I told the BIA [Bureau of Indian Affairs], ‘Ever since Trump’s come in here, you’ve done a 180 in attitude.’ “
The BIA (which falls under the Department of the Interior) helped clear water protectors from #NoDAPL encampments in early February. And new Interior Secretary Ryan Zinke has expressed support for oil drilling on federal lands.
“In the courtroom, it’s definitely more difficult,” Zephier added. “Any other administration would not put forth some of the outrageous arguments or assertions of authority that Trump is trying to put forward.”
The tribe is determined to keep fighting, however. “By no means does anyone feel defeated,” Zephier said. “We’re in this for the long haul.”
She and Frazier hope the energy and passion of the #NoDAPL activists will translate into support for their legal campaign on CrowdJustice.
“The American government has failed us,” Frazier said, “but the American people have not.”