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Latest DAPL Hearing: Cheyenne River Sioux Religious Beliefs on Trial

The latest D.C. District Court DAPL hearing hinged on the Cheyenne River Sioux Tribe’s rights in regards to its religious practices.

Judge James Boasberg on February 28 kicked off the latest D.C. District Court hearing on the Cheyenne River Sioux Tribe's motion for a preliminary injunction to stop the construction of the Dakota Access Pipeline (DAPL) by saying that no oral ruling would be issued that day.

Time is of the essence, however, as Energy Transfer Partners (ETP), the builder and financer of DAPL, has managed to move construction on the pipeline across Lake Oahe forward to a point where oil might be introduced into the pipeline as early as March 6, according to DAPL lawyers. If that happens, the water in Lake Oahe will be rendered ritually impure, violating the Cheyenne River Sioux Tribe's right to the free exercise of religion under Religious Freedom Restoration Act (RFRA), Nicole Ducheneaux, lead attorney for the Cheyenne River Sioux, told the court.

The core of the Cheyenne River Sioux Tribe’s argument is religious, not environmental, although the tribe has joined the Standing Rock Sioux Tribe in its motions related to environmental issues with the pipeline.


As has been his position all along, David DeBold, lead lawyer for ETP, refuted that claim, describing it as too late to the game under both the Administrative Procedure Act (APA) and the Laches Doctrine.

Ben Schifman, representing the United State Army Corps of Engineers (USACE), agreed. "We set a time to consider any claims, but with limited resources [the lateness] of the claims comes into play," he said in court, adding that he believed this argument should have been presented during the administrative phase of the trial. What's more, "how can the Corps respond to something it didn't know about?" He admitted, though, that the Corps might have considered other options had they known earlier. What he didn't say was that the Corps never asked – nor had the opportunity to ask – specific questions that might have ferreted this out before February 9.

Ducheneaux rejected this argument, stating that the claim was "timed precisely" when she amended the original Cheyenne River complaint on February 9 because the administrative process was abruptly "upended" on February 8 when the Acting Secretary of the Army stated that he intended to have USACE issue the permit for the easement required to complete the pipeline.

When Boasberg inquired what the Corps would have done had they had the information earlier, Schifman was imprecise. "If we had the information we could have evaluated it – the specific religious activity and how disruptive it would have been [to religious practice]," he said. He – and later DeBold – hammered away at wanting to know the "specific" religious practice the pipeline and oil would disrupt.

Ducheneaux reminded the court that the Cheyenne River Sioux Tribe's argument was always fundamentally religious: both physically and spiritually contaminated water were ritually impure, and oil in the pipeline did both. She also reiterated to the court that the tribe had registered religious concerns as early as 2015, although perhaps not with the "specificity" that DeBold said might have triggered a timely USACE response to the issues.

Pointing to the "difficulty in expressing what is contained in the Lakota faith and translating it into English,” Ducheneaux lamented in an interview following the hearing, "Maybe if [the tribe] had used the words 'spiritual desecration' or whatever they expected, we would have gotten their attention [earlier]. At least that's what DeBold alleged today....but RFRA doesn't require notice of specific religious actions....A requirement for specificity imposes a substantial burden on religious practice."

Ducheneaux further noted that both DeBold and the USACE lawyers had been careful not to directly challenge in court whether the Cheyenne River Sioux actually possess sincerely held religious beliefs. She equated their picking at the lack of "specificity" of language in describing the tribe’s religious concerns with a "back-door [way of putting] their [religious] beliefs on trial."

Ducheneaux continued, "If they'd done a full Environmental Impact Statement (EIS), they would have fleshed out a whole range of tribal considerations that [could] have been respected. As it was, we were deprived, which is unlawful. That is the crux of our argument." In other words, had an EIS been carried out, USACE and DAPL would have gotten a better degree of "specificity"—which remained undefined throughout the hearing.

DeBold’s second line of reasoning was that the tribe was uniquely responsible for demonstrating the burden on religious practice, yet he said it did not do so in a timely manner.


Boasberg presented several concerns to Ducheneaux: Is it just oil in Lake Oahe that renders the water ritually impure? If the pipeline had been installed closer to an existing pipeline about ten miles away, would it still violate the tribe's religious practice? Does use of the water by non-tribal members have an impact on religious practice? And where do we draw the line if any group claims a burden on religious beliefs under RFRA and Religious Land Use and Institutionalized Persons Act (RLUIPA)?

The religious burden argument has always been about oil in the pipeline for the Cheyenne River Sioux, Ducheneaux reiterated in court. Once it's in the pipeline, the water is ritually impure. DeBold asked why the tribe simply could not use other water sources for its religious rituals. Ducheneaux responded that the Missouri River – now dammed to make Lake Oahe – had been the source for the Sioux, and in fact the Sioux has a recognized right to Lake Oahe per Army Corps policy. In fact, during a 2005 drought, the Corps reaffirmed that there was "no other source of clean water for tribal use" except the lake, she reported. And, even if wells were an acceptable source, she parried, uncontaminated water was nearly a mile underground.

This led Boasberg to press, asking whether the Cheyenne River Sioux was laying claim to a property interest in the land under the lake as well as the water. Ducheneaux replied that the tribe was claiming a religious right to uncontaminated water for religious practice, which, in this case, meant eliminating the risk of the likely rupture of the pipeline at some point in time. Furthermore, she said when the U.S. Congress created the reservation for the Sioux, it recognized that water was essential to life and existence, and that life included the whole spectrum of life activities, including religious use.

Regarding the alternate pipeline route still close to the lake, Ducheneaux was quick to provide a factual distinction for the court. Even though Lake Oahe did not exist prior to the 1960s when the Army Corps dammed the Missouri River to create the reservoir – a fact that led DeBold to question how it then could be a sacred site for the Sioux – the Missouri River had always been sacred. At the same time, the Corps established the legal land boundaries of the lake, which the tribe accepted although it always remained an issue of concern for them.

As for water purity, Schifman told Boasberg that the "United States is not required to take action or be responsible for the quality of water on the reservation." Boasberg questioned him on the responsibility of third-party action on third-party land versus third-party action on government land. Schifman redirected the focus to what would happen if RFRA applied to everything. "There are many government actions – trains passing over land, planes flying over water...[that] could impact tribal water purity," he told the court. He concluded that the Cheyenne River Sioux just hadn't demonstrated a substantial burden on religious rights—that it hadn't succeeded on the merits by failing to submit specific [religious] concerns. DeBold agreed, ultimately arguing that the pipeline was not preventing the exercise of religion because there were no government-imposed sanctions associated with allowing the pipeline to be constructed and to operate. "Nor," he continued, "has the government ever recognized the right to have water in a form to use for religious purposes."

Perhaps that moment has come. A written ruling is expected in about a week.