On Feb. 8 the U.S. Army Corps of Engineers reversed course and issued an easement allowing the installation of the Dakota Access Pipeline under Lake Oahe in North Dakota. That decision followed a presidential memorandum indicating that construction and operation of the pipeline would be in the "national interest," and set the stage for a final showdown over the pipeline's fate.
In response, two Indian tribes, the Standing Rock and Cheyenne River Sioux, filed new motions to halt the pipeline's construction and operation. After an initial hearing on those motions, the federal judge on the case allowed construction to proceed but will be considering the Tribes' claims before oil will pass through the pipeline under Lake Oahe. That means, unlike the voices of thousands who joined the Standing Rock Sioux Tribe in protest against the pipeline, the next chapter of this fight will be argued by a few lawyers in the pin drop silence of a federal courtroom.
Although the details of those arguments will be complex, as a legal scholar focused on Native American law I see the case addressing an essential question at the heart of our legal system: namely, how does federal law and judicial process protect the fundamental values and structure of the Constitution?
The central issues in the case are now whether the U.S. Army Corps of Engineers' approval of the pipeline and easement illegally interferes with the tribes' religious beliefs and whether the corps adequately considered the tribes' water and other treaty rights before issuing that approval.
Religious Freedom Restoration Act
According to the Cheyenne River Sioux Tribe, oil running through the pipeline would represent the fulfillment of a generations-old prophesy, passed down through the oral traditions of tribal members, that warned of a Black Snake coming to defile the sacred waters necessary to maintain the tribes' ceremonies. Beyond the environmental concerns often at the center of the pipeline protests, the tribe's motion for an injunction squarely defines final authorization of the pipeline by the Corps as an existential threat: destruction of the tribes' religion and way of life.
The Constitution's First Amendment guarantees the exercise of religion free from governmental interference. But the Supreme Court, in Lyng v. Northwest Indian Cemetery Protection Association, in 1988 upheld the Forest Service's approval of a road across an area on federal land sacred to local tribes even while recognizing the road could have devastating effects on their religion.
Then in 1993, Congress enacted the Religious Freedom Restoration Act (RFRA), which requires that the government demonstrate a compelling interest and use the least restrictive means to achieve that interest if its actions will substantially burden religious practice.
In other words, even if approving the Dakota Access Pipeline served a compelling governmental interest, RFRA may require the U.S. Army Corps of Engineers to show that the pipeline easement under Lake Oahe would have the least impact on tribal religion. That approach would be consistent with the Supreme Court's broad application of RFRA in a 2014 case not involving tribal interests or federal lands and may pose a significant challenge to the corps, which considered but rejected a different route that did not pose the same threat to the tribes.
Both the Corps and company behind the Dakota Access Pipeline argue that the risk of spill from the pipeline is minimal and that the tribes failed to raise these religious concerns in a timely manner. In addition, the Corps contends that, consistent with the Lyng case, governmental action on federal land should not be restricted because of religious concerns raised by local tribes.
Thus, resolution of the case will turn upon whether the court recognizes the legitimacy of the tribal religious concerns and broadly applies RFRA or, instead, chooses to prioritize federal authority over federal land to the detriment of those concerns. The parties will argue whether the religious freedom issues support an injunction on February 27.
Arbitrary or capricious decisions?
In addition to their religious concerns, the Sioux Tribes challenge the Corps' decisions based on the rights they reserved in treaties made with the federal government in 1851 and 1868.
The Constitution recognizes treaties as the "supreme law of the land" and, according to a 2016 analysis done by the Solicitor of the U.S. Department of the Interior, both the Standing Rock and Cheyenne River Sioux retain treaty-reserved water, hunting, and fishing rights in Lake Oahe.
Importantly, federal law generally allows courts to set aside arbitrary or capricious agency decisions. In a February 14th filing, the Standing Rock Sioux Tribe asks the court to review the Corps' about-face under that standard and argues that the federal trust responsibility,recognized by the Supreme Court since the early 1800's, demands more than just a cursory review of tribal treaty rights.
The parties will be briefing the treaty rights issues into March but the judge is keeping a close eye on Dakota Access' progress in the meantime.
The ultimate fate of the pipeline will turn on how the courts recognize the rights asserted by the Sioux Tribes, rights rooted in the Constitution's values and structure - precisely the type of rights our rule of law and federal courts are meant to protect.