A setback was handed a handful of Indian tribes when the South Dakota Supreme Court dismissed their appeal of the state regulators’ approval of the Keystone XL pipeline.
The high court said the lower court that had affirmed the state’s approval lacked jurisdiction to hear their cases. The ruling went against the Cheyenne River Sioux Tribe, the Yankton Sioux Tribe and the conservation and family agriculture group Dakota Rural Action.
The tribes and the conservation group had appealed a judge’s decision in 2017 that upheld the approval by regulators for the $8 billion pipeline to cross the state. But the Supreme court said the justices didn’t “reach the merits of the case” because the lower court did not have jurisdiction to weigh the appeal of the Public Utilities Commission decision.
The Commission had given initial authorization for TransCanada’s 1,179-mile long pipeline in 2010 but the permit was revisited because construction didn’t start within the required four years. It voted again in 2016 to allow construction.
While the court ruling might be considered a victory for TransCanada, it could face other challenges mounted by Indian tribes. In Nebraska this week, a husband and wife who oppose the pipeline deeded about 2 acres of land to the Ponca Indian tribe. Observers suggest it might be another roadblock for the project.
The Ponca have special legal status as a federally recognized tribe. The land has been used as a planting space for sacred Ponca corn for the last five years, and it was chosen in part because it sits on the $8 billion pipeline’s proposed route. It’s also part of the historic Ponca route that tribe members were forced to take when the U.S. government relocated them to present-day Oklahoma in 1877.
It’s not clear whether deeding the land to the tribe would hinder the company or create a new legal argument for the Ponca, given their status as a federally recognized Indian tribe. Brad Jolly, an attorney for the Ponca Tribe of Nebraska, said he was focusing more on overturning state regulators’ approval of the pipeline in a case pending before the Nebraska Supreme Court.
“I haven’t gotten to all the what-ifs yet,” Jolly said.