Taking advantage of a pandemic? Roadblocks, pipelines and treaty rights

File photo: Pipes for Keystone XL Pipeline in Nebraska, 2009.(Photo: Shannon Patrick [CC BY creativecommons.org/ licenses/by/2.0])

The Associated Press

South Dakota's governor is trying to force two tribes — the Cheyenne River Sioux Tribes and the Oglala Sioux Tribe — to remove coronavirus checkpoints they have set up to keep infections away from their reservations

Matthew Brown and Stephen Groves

Associated Press

BILLINGS, Mont. (AP) — A Canadian company has built the first piece of the disputed Keystone XL oil sands pipeline across the U.S. border and started work on labor camps in Montana and South Dakota. But it has not resolved a courtroom setback that would make it hard to finish the $8 billion project.

The 1,200-mile (1,900-kilometer) pipeline from Alberta to Nebraska was stalled for much of the past decade before President Donald Trump was elected and began trying to push it through to completion. 

Environmentalists and tribal governments are bitterly opposed to the line because of worries over oil spills and that burning the fuel would make climate change worse.

Work finally started in April at the border crossing in remote northern Montana. That 1.2-mile section has now been completed except for some site reclamation activity, TC Energy spokeswoman Sara Rabern said. 

The Calgary-based company has started site work for labor camps near Baker, Montana, and Philip, South Dakota, but it has not set a date to occupy them. 

Montana officials have not yet received plans requested from the company to make sure it can prevent the camps from spreading the coronavirus, said Erin Loranger, a spokesperson for Montana Gov. Steve Bullock. The state expects to receive the plans before the camps are occupied, she said.

The company's three-year construction timeline was put into doubt following a May 15 ruling from a federal judge in Montana that cancelled a key permit from the U.S. Army Corps of Engineers. The permit is needed to build the line across hundreds of streams, wetlands and other water bodies along its route. 

The ruling affected all new oil and gas pipeline construction and was appealed by the Trump administration and TC Energy.

"We look forward to a resolution that allows us to advance our construction in 2020 without any further delay," Rabern said.

The work in South Dakota began amid high tensions between South Dakota Gov. Kristi Noem and two tribes that have been outspoken opponents of the pipeline.

Noem said Thursday her stance against tribes operating coronavirus checkpoints on federal and state highways isn't just about the response to the coronavirus pandemic, but about setting "precedent" on tribes' ability to shut down traffic in other situations. "If we allow checkpoints to shut down traffic in this situation, then we are setting precedent for that to happen far into the future," Noem said.

Noem threatened to sue the tribes two weeks ago, but then backed away from that plan and instead appealed to President Donald Trump to settle the issue this week. She said she is investigating all tribes that have set up checkpoints on federal and state highways. Three tribes — the Cheyenne River Sioux Tribe, the Oglala Sioux Tribe and the Rosebud Sioux Tribe — have set up the checkpoints to keep unnecessary visitors from the reservation who might be carrying coronavirus infections.

Many tribes have treaty rights that explicitly affirm the tribes' right to control entry or exclusion into their territory. A statement from the National Congress of American Indians said it "reminds the governors of each state that treaty rights and rights to regulate reservation lands represent those self-governing rights which were never ceded and which preexist the United States."

As construction related to the Keystone XL pipeline begins in South Dakota, the checkpoints add tension to an already-rocky relationship between the Republican governor and tribes that have been outspoken opponents of the pipeline. The Cheyenne River Sioux Tribe, which has set up coronavirus checkpoints, does not allow vehicles from oil companies to pass through their land. The proposed pipeline route skirts tribal land, but construction companies could use the highways for transporting supplies.

Since Noem threatened to sue, the Rosebud Sioux Tribe also set up coronavirus checkpoints after an increase in coronavirus infections on its reservation.

Noem maintained that she did not regret threatening to take the tribes to court and said it was important to settle who had jurisdiction over highways stretching across reservations. She pointed to easements that allowed federal and state governments to build and maintain highways on tribal land.

The governor argued she has been a proponent for the tribes in a host of other areas, saying "we work together very well on 99 percent of issues."

But Chase Iron Eyes, a spokesman for the Oglala Sioux Tribe president, called Noem's decision to investigate the checkpoints an escalation of the feud.

"We're permitting people to pass through our reservations," he said in a statement. "We're screening people, according to the best advice from medical experts, not preventing travel."

The tribes say their focus is on keeping people safe during the pandemic and that their rights as a sovereign nation allow them to set up the checkpoints to protect people's health.

"It's disappointing that they're not respecting what we do," said Cheyenne River Sioux chairman Harold Frazier. "We value life over anything else."

Many  tribes across the country have taken a more vigilant approach to the coronavirus pandemic. There have been 324 confirmed cases among Native Americans in the state, according to the Department of Health.

Meanwhile, members of several tribes in Montana and North Dakota traveled to the border crossing for a small protest against the pipeline earlier this month, said Angeline Cheek, an activist from Montana's Fort Peck Tribe and organizer for the ACLU of Montana.

Large protests against Keystone XL had been anticipated following the months-long protests, sometimes violent, against another oil pipeline project several years ago near the Standing Rock Sioux Reservation on the North Dakota-South Dakota state line.

Cheek said TC Energy appeared to be taking advantage of the pandemic "to run all over us" while public attention was focused on the virus.

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WSullivan

Letter from Mayor of Seattle and Seattle City Council to Governor Noem:


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