Religious argument heard in court

TRIBE PUTS ‘BLACK SNAKE PROPHECY’ AT CENTRE OF DAKOTA PIPELINE BATTLE

WASHINGTON • 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 almost 2,000-kilometre pipeline could be in service any time between March 6 and April 1. All that remains to be completed is a span under Lake Oahe in North Dakota.

“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.

The pipeline “is the black slippery terror described in the Black Snake prophecy.

“And the coming of the Black Snake is not without consequence in the Lakota religious world view.”

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 March 7 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 religiousfreedom argument. Lawyers for the consortium also say that it is not bound by the religious-freedom law.

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 U.S. Army Corps of Engineers last year put the project on hold after Boasberg denied an initial bid to block construction in a case filed by another Sioux band, the Standing Rock. Last month, the Corps said it would conduct an environmental-impact assessment of the pipeline path under the lake. Trump then ordered the Army to expedite its review, prompting it to abandon that plan and instead grant final approval for the project.

Tribal lawyers claim the Army Corps has found other routes that are less-intrusive. Dakota Access’s advocates counter other natural gas pipelines and power lines already cross the lake, and there are other crude oil pipelines in the region.

From the bench Tuesday, Boasberg was skeptical of the tribe’s arguments. In its defence, Ducheneaux suggested that under the law, the court is required to avoid questioning the sincerity of the beliefs expressed.

NOT WITHOUT CONSEQUENCE IN THE LAKOTA RELIGIOUS WORLD VIEW.

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