Tribe cites ‘black snake prophecy’ in court fight

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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.”

TOM STROMME / THE BISMARCK TRIBUNE VIA AP

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.

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