November 2016 – NARF continues to stand firm for justice for the Standing Rock Sioux and Cheyenne River Sioux Tribes in their efforts to halt the construction of the Dakota Access Pipeline (DAPL). Immediately following the issuance of the October 9, 2016, order by the federal court of appeals denying the tribes’ emergency motion for a stay, NARF facilitated a conference call with Earthjustice and over forty tribal leaders and attorneys representing a broad cross-section of Indian country. The call continued the efforts to develop a broad-based effective litigation strategy in support of the tribe’s appeal of the federal district court’s denial of the preliminary injunction. One of the primary issues on appeal is the district court’s acceptance of the Army Corps of Engineers’ argument that section 106 of the National Historic Preservation Act does not require it to consult with the tribes regarding the severe, adverse impacts to tribal burial grounds and other sacred places throughout the DAPL construction corridor unless such impacts fall within their narrow definition of “jurisdictional waters.”
At this time, NARF, along with the National Congress of American Indians (NCAI), is moving forward with Earthjustice on a litigation strategy that includes multiple “friend of the court” briefs to provide a fuller perspective of the wide-ranging harms caused by a failure of federal agencies to consult with tribes on these massive infrastructure projects, the benefits gained when meaningful consultation occurs with tribal governments, and the utter disregard of the law in this case by the Army Corps of Engineers. NARF is also active in monitoring the progress of the consultation sessions being hosted by the Department of the Interior, Department of Justice, Department of the Army, and other federal agencies on “how the Federal Government can better account for, and integrate tribal views, on future infrastructure decisions throughout the country.” In the recent four-hour session during the NCAI Annual Conference in Phoenix, a multitude of tribal leaders waited patiently to provide the high level federal officials in attendance with their own—often heart-wrenching—stories of struggle and frustration with the inaction of the Army Corps of Engineers, other federal agencies, and members of Congress to protect the rights of Indian tribes guaranteed under their treaties with the United States.
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