“If the pipeline burdens the way they use their own property for religious purposes, they might have a RFRA claim, but then they would also have a property-rights claim. If the pipeline is entirely on someone else’s property, they have no right to insist that the use of that other person’s property be restricted in ways important to their religion,” he says.
The tribe threads this needle by saying that the waters of Lake Oahe are held by the federal government in trust to the tribe. “The United States’s trust duty applies specifically to protection of tribal reserved water rights from upstream contamination,” says the brief. Were the pipeline to leak, the United States would abrogate this duty.
The brief makes one more important argument. Under Hobby Lobby, the courts have to be careful not to inquire too much into the sincerity of any religious claim. “Courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim,” wrote Justice Samuel Alito in the majority opinion.
This would strengthen the robustness of the Sioux’s argument. But Laycock said it is unlikely to matter.
“That language in Hobby Lobby is somewhat ambiguous, largely unnecessary to the decision, and seriously ill-considered,” he said. “With this case having a very different political valence from the contraception litigation, we can expect judges to begin to limit the excessive language in Hobby Lobby.”
In its quest to block the Dakota Access pipeline, the Standing Rock Sioux Tribe has reached for one federal statute after another. Over the summer, it argued the pipeline violated its rights to a historic review under the National Historic Preservation Act. Throughout the fall, it sought an environmental-review statement required under the National Environmental Policy Act.
The Obama administration granted it just such a review in early December. But that decision was vacated in the first days of the Trump administration. On Thursday, a former Cabinet secretary to President Obama condemned this decision.
“The Corps’s decision willfully ignores the government’s trust and treaty obligations to tribal nations and the spirit and letter of the law,” said Sally Jewell, a former secretary of the interior under the Obama administration, in a statement. “The tribe is right to pursue legal action. As a citizen, I add my voice to the thousands calling on the Corps to do the right thing and keep their word to the Standing Rock Sioux Nation.”
But so far, the district court judge who heard the tribe’s other lawsuits has found the government’s treaty or trust obligations insufficient to halt the pipeline. And therein lies the final problem for the Standing Rock Sioux. At least under this administration, it doesn’t seem that historical justice will play a role in decisions to grant new permits.
“There is also much rhetoric in the brief about how the government took most of the Lakota’s land by foul means,” said Laycock. “No doubt that is true, but the courts are not going to undo nineteenth-century land transactions at this point.”