GREAT FALLS, Montana – Counsel for the Rosebud Sioux Tribe and the Ft. Belknap Indian Community held U.S. President Donald Trump’s feet to the fire in a federal court case here Sept. 12, as the chief executive’s defense argued to dismiss the native nations’ lawsuit against him for permitting the TC (TransCanada) Energy Corp.’s Keystone XL Pipeline.
Litigating on behalf of the tribal governments, the Native American Rights Fund summoned an argument for the Constitutional law of treaty enforcement during this, the most recent hearing over Rosebud Sioux Tribe v. Trump, which is being heard by federal Judge Brian Morris, in the Great Falls Division of Montana U.S. District Court.
“The presidents of Rosebud Sioux Tribe and Fort Belknap Indian Community were in federal court to invoke their sacred inheritance from these treaties—because the KXL Pipeline is exactly the kind of depredation the tribes sought to prevent,” NARF Staff Attorney Natalie Landreth explained after the hearing held at the Great Falls Municipal Courthouse.
Rosebud Sioux Tribal President Rodney Bordeaux led the attending Sicangu Oyate delegation, which included members of the Sicangu Treaty Council, Tribal Counciler Lisa White Pipe and Tribal Attorney General’s Office counsel. Ft Belknap President Andy Werk and Ft. Peck Tribal Council members Marva Chapman and Jestin Dupree attended, among other dignitaries.
“When the tribes negotiated their treaties, they gave millions of acres of land to the United States—including, ironically, the land on which the courthouse now stands. In return, they asked that the United States protect their lands from trespass and their resources from destruction,” Landreth elaborated.
The Canadian pipeline company is bound and determined to carry on its $10-billion attempt to build the pipeline across the U.S.-Canada border through unceded 1851 and 1868 Ft. Laramie Treaty territory in Montana, South Dakota, and Nebraska.
Changing its name from TransCanada Corp. to TC Energy Corp. during a decade-long labyrinth of permitting problems, the developer seeks approval of the private infrastructure project in order to transport the tar-sands from the mine fields of ancestral Athabascan homelands in Canada to the refineries and export shipping facilities on Texas’ Gulf of Mexico.
The corporation triumphed over environmental, water and property rights advocates opposing construction of the southern part of the line from the Texas Gulf Coast to Steele City, Nebraska.
The corporate literature says that diluting the tar with lighter petroleum products to make a liquid called dilbit, which allows it to flow in a pipeline, is the safest way to move the heavy crude down south and abroad.
However, its Keystone I Pipeline from Canada to the Texas Gulf spilled more than a dozen times in 2011, the first year of operations. The U.S. State Department under Secretary John Kerry and former President Barack Obama, denied the Presidential Permit for the KXL to cross into U.S. territory on the grounds that it was not in “the national interest.”
Successor Trump, acting on a presidential campaign promise, ordered the State Department’s reversal of the permit decision and achieved his goal within two months of taking office. During the campaign, he held $250,000-$500,000-worth of stock in TransCanada Pipelines, Ltd., according to a 2015 personal public financial disclosure report filed with the Federal Election Commission.
The reversal prompted not only Rosebud Sioux Tribe v. Trump, but also a lawsuit by the Indigenous Environmental Network and the North Coast Rivers Alliance, as well as a subsequent one from the Northern Plains Resource Council, Bold Alliance, Center for Biological Diversity, Friends of the Earth, Natural Resources Defense Council, and Sierra Club.
Like the tribal governments, the organizations expressed concern for treaty rights and the potential of water and air pollution. All of the suits were introduced in Morris’ venue.
However, when the judge responded by ordering the State Department to explain why it reversed the permit decision, Trump cancelled the permit and, in 2019, issued an unprecedented substitute executive permit for the border crossing construction instead.
His lawyers argued that his actions did not violate any treaty and the judge should throw out the Rosebud claims, because Trump only authorized the border crossing construction, not the unceded treaty land buildout.
The plaintiffs contended that the approval process so far would necessarily lead to the treaty violation.
“The federal government and TransCanada argue that the treaties don’t matter,” said NARF Staff Attorney Matthew Campbell. “Obviously, that is not the case. Like the U.S. Constitution, treaties are the law of the land and no one is above that law.”
When they entered into treaties with the United States, “the tribal nations were working to protect their natural resources (water, grasslands, sacred places, and the great buffalo herds) and keep people from crossing their lands,” NARF said in a media release.
“The United States formally agreed, among other things, to keep outsiders off Lakota (Sioux) and other tribal nations’ territories and protect tribal cultural and natural resources. The 2019 pipeline approval violates both of these provisions.”
The organization noted the pipeline route would snake through the checkerboard area of allotment lands under Rosebud jurisdiction, in violation of the U.S. Constitution and the U.N. principle of tribal Free Prior and Informed Consent.
“Maps issued by TransCanada (TC Energy) clearly show the proposed KXL pipeline crossing tribal lands. They are proposing to do so without the tribal consent required under the treaty law,” NARF said.
“The tribes argue in their amended complaint that the 2019 permit, which would allow a Canadian company (TransCanada) to build another dirty tar-sand crude pipeline across American soil, also creates a substantial risk of the desecration and destruction of cultural, historic, and sacred sites; the endangerment of tribal members, especially women and children;
damage to hunting and fishing resources, as well as the tribal health and economies associated with these activities; the impairment of federally reserved tribal water rights and resources; harm to tribal territory and natural resources in the inevitable event of pipeline ruptures and spills; and harm to the political integrity, economic stability, and health and welfare of the tribes,” NARF said.
“All the tribes are asking is that the U.S. government honor the treaties that the President signed and the U.S. Congress ratified,” the organization continued. “All they are asking is the law be upheld.”
NARF “will not allow the U.S. government to ignore or forget the agreements made with tribal nations. Neither the President nor wealthy foreign corporations are above the laws of our country.
“Treaties are not just an agreement between two sovereign governments. Rather they are an agreement between the citizens of those sovereigns. If a sovereign government violates their agreements, they dishonor not just themselves, but also the people they are representing,” NARF argued.
“Don’t let this President dishonor our country. Don’t allow him to dishonor you,” it said in an appeal for financial support of the case.
(Contact Talli Nauman at firstname.lastname@example.org)
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