Cartoon by Ricardo Cate’
On Friday, September 9, D.C. District Court Judge James E. Boasberg denied the Standing Rock Sioux tribe’s request to halt construction of the Dakota Access Pipeline. The tribe had sought an injunction to stop the routing of the $3.8 billion oil pipeline because of its proximity to sacred burial grounds and to the Missouri River, the source of the reservation’s drinking water. Boasberg’s motion stated “the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue.”
At least 1,000 people, most of them from various Native American tribes, have been gathering for months at the “protectors” encampment near the pipeline route along the Cannonball River. Over the Labor Day weekend construction crews removed topsoil across an area about 150 feet wide and two miles long, in a move the protectors called “devastating” to sacred ground.
“On Saturday, September 3, Dakota Access Pipeline and Energy Transfer Partners brazenly used bulldozers to destroy our burial sites, prayer sites and culturally significant artifacts,” said Standing Rock Sioux Chairman David Archambault II. “They did this on a holiday weekend, one day after we filed court papers identifying these sacred sites. The desecration of these ancient places has already caused the Standing Rock Sioux irreparable harm.” In subsequent clashes with a private security company, six people were bitten by dogs, including a child, and dozens were pepper sprayed.
Just moments after Judge Boasberg dashed the tribe’s legal hopes for stopping construction until such time as the court decides on the larger lawsuit, the Department of Justice, the U.S. Army and the Bureau of Interior released a joint public statement stating that the Corp would impose a moratorium on pipeline construction pending further study of its environmental and cultural impacts.
In response to the joint statement, Archaumbault said, “our message is heard.” But the chairman has his eye on the long game. “This is just the beginning,” he said in a National Public Radio interview.
“Even before the court ruling, even before the statement released by the three agencies, we knew that this was the beginning, it's not end. And everybody put a lot of emphasis on the judge's ruling on September 9. But that was the beginning. You know, we have to continue to build awareness of indigenous lands and indigenous rights.”
The need to build awareness is nowhere more evident than in the curious and contradictory 58-page ruling handed down by Judge Boasberg. The decision is curious in that it acknowledges the historic complicity of U.S. courts running roughshod over First Nations peoples; and contradictory in that this ruling is an example of that complicity, while at the same time telling a meticulous and powerful story of indigenous resistance and the fight against colonization.
Dozens of the ruling’s pages are devoted to detailing overtures made to the tribe by DAPL and the Corps to work together to plan the pipeline’s route, overtures that were often ignored, deflected or rebuffed. “These following summaries admittedly contain significant detail and may try the reader’s patience,” Boasberg writes on page 13.
The record makes clear that the tribe persistently rejected the piecemeal approach to gain its cooperation, asserting that the whole of the pipeline be designated as an “undertaking” and involve tribal consultations. But Judge Boasberg brandished the law like a Stop sign: “Domestic oil pipelines, unlike natural-gas pipelines, require no general approval from the federal government. In fact, DAPL needs almost no federal permitting of any kind because 99 percent of its route traverses private land.”
Boasberg also complained that the Sioux have never defined their ancestral lands with respect to the route of the pipeline other than to say their lands extend to “wherever the buffalo roamed,” and that some of DAPL’s route may fall outside that territory.
What becomes abundantly apparent through the court’s recitation of the procedural timeline is just how many burdens fall on the Standing Rock tribe and how very few on the defendants. The ruling contains numerous statements such as this one on page 54: What becomes abundantly apparent through the court’s recitation of the procedural timeline is just how many burdens fall on the Standing Rock tribe and how very few on the defendants. The ruling contains numerous statements such as this one on page 54:
“But the burden is on the Tribe to indicate why this permitting must be enjoined to prevent an injury likely to occur to it.”
There are a number of occasions in which Boasberg zings the tribe for not playing by the rules, once accusing it of filing its motion in order “to launch a belated facial attack” (p. 41), and for making him work at understanding the tribe’s grievances. “Although the Tribe’s legal theory is not entirely clear, the Court believes it can infer four separate arguments that the Corps’ permitting of DAPL was unlawful,” he writes.
Sections meant to show plaintiffs’ failure to meet their legal burdens also show just how many burdens have been foisted on them in the first place.
Judge Boasberg’s ruling reveals the many places where “the law” has responded to the tribe with cheap tricks: defining things narrowly, defining things broadly, creating exceptions, creating conditions—techniques which distance the law from the real dangers to communities from pipelines.
Justice, in its common-sense meaning, is simply nowhere on the map.
Frances Madeson is a Santa Fe-based freelance journalist and is the author of the comic novel Cooperative Village.