Tribe cites ‘black snake prophecy’ in court fight
Citing religious rites and the dark prophecy of a “terrible black snake” that will bring harm to its people, a Sioux Indian tribe returned to court Tuesday in an eleventh-hour push to keep the Dakota Access pipeline from carrying its first crude oil.
The Washington hearing was held just days after the consortium constructing the conduit — Dakota Access led by Energy Transfer Partners — told the court the 1,172-mile pipeline could be in service any time between Monday and April 1. All that remains to be completed is a span under Lake Oahe in North Dakota.
Energy Transfer’s $3.8 billion project has been a flash point for Native Americans and environmentalists on one side and the oil industry on the other. The industry has been bolstered by President Donald Trump’s reversal of Obama administration commitments to reconsider the route of the pipeline’s last link.
“The Lakota people believe that the pipeline correlates with a terrible Black Snake prophesied to come into the Lakota homeland and cause destruction,” tribe lawyers said in court papers this month. They also claim the mere presence of the pipeline would make the lake water impure and unsuitable for use in their religious sacraments.
While the Cheyenne River Sioux’s claims arise from ancient ritual and lore, their legal arguments are grounded in the Religious Freedom Restoration Act, a 1993 law that allowed closely held companies to avoid providing contraception insurance to employees. The measure bars the government from substantially burdening a person’s religious freedom unless it’s for a compelling government interest and done in the least-restrictive way.
U.S. District Judge James E. Boasberg, a 2011 Obama administration appointee who has rejected previous attempts to block work on the pipeline, heard more than an hour of arguments from lawyers for the tribe, the pipeline builder and the U.S. He said he will aim to rule by Tuesday and ordered the company to give him at least 48-hours notice before the pipeline is operational.
Attorneys for the government and Dakota Access contend the tribe waited too long to raise their religious-freedom argument. Lawyers for the consortium also say that it is not bound by the religious-freedom law.
“Dakota Access continues to have the greatest respect for the religious beliefs and traditions of Cheyenne River and the other tribes that have participated in the process,” company lawyers said in a Feb. 21 filing. “Cheyenne River’s last-ditch desperation pass comes after time has expired.”
In court, tribal lawyer Nicole Ducheneaux disputed that assertion, telling the judge that concerns about the pipeline’s impact on the tribe had been raised as long as two years ago, albeit not in the precise manner required by a court filing.
“They were on notice,” she said, adding that even if the religious-freedom allegations had been made at the inception of the lawsuit last year, “we would still be here today.”
The pipeline “is the black slippery terror described in the Black Snake prophecy,” lawyers for the tribe said in court papers. “And the coming of the Black Snake is not without consequence in the Lakota religious worldview.”
A fire set by protesters burns as opponents of the Dakota Access pipeline leave their main protest camp on Feb. 22 near Cannon Ball, N.D. The Sioux Indian tribe returned to court Tuesday to keep the pipeline from carrying oil.