Judge’s stalling gives Dakota Access pipeline the advantage
This aerial photo shows a site where the final phase of the Dakota Access Pipeline will take place with boring equipment routing the pipeline underground and across Lake Oahe to connect with the existing pipeline in Emmons County, Monday, Feb. 13, 2017, in Cannon Ball, N.D. It is the last big section of the $3.8 billion pipeline, which would carry oil from North Dakota to Illinois. A federal judge on Monday refused to stop construction on the last stretch of the pipeline, which is progressing much faster than expected. | Tom Stromme/The Bismarck Tribune via AP

Federal Judge James Boasberg has done it again. In response to the request by the Standing Rock Sioux and the Cheyenne River Sioux Tribes for injunctive relief, to halt construction of the Dakota Access Pipeline (DAPL), this jurist said he will decide within a week if the injunction will be granted.

In the meantime, DAPL construction roars forward full steam ahead. This is the same judge who has twice previously denied injunctive relief to the tribes. Obviously, this does not look good. But I must harken back to what Bernie Sanders some months ago said: “No matter what the courts say, the pipeline must be stopped.”

While we ponder this question – which suggests that mass, militant public pressure will halt this potentially deadly oil project – we turn back to Judge Boasberg.  This latest time around, he told lawyers at the February 28 hearing that he wants to issue a ruling before the oil begins flowing through the pipeline. Earlier this month, Boasberg denied the tribes’ request for an immediate halt to the pipeline construction on the ground that as long as oil was not coursing through the pipeline there was no imminent harm to the tribes- hence no need for injunctive relief prior to that time. This latest ruling contradicts his earlier ruling.  At best he seems to be greatly confused. This is just more gobbledegook.  His rulings are at odds with each other.

As an attorney,  I can just about predict what is now taking place. The judge has already made up his mind to deny injunctive relief. He will now, within a week, produce a voluminous ruling to provide a legal foundation to the denial.

This leads to my next point: the so-called rule of law, which in these kinds of cases is simply nonsense. There is no rule of law, simply the rule of man, and in most instances the white man, the judge, protecting the economic interests of the predatory, rapacious white plutocracy- the rule of the wealthy. The law in so many aspects is ambiguous. Legal support can be found to rule in favor of the personal bias of the judge.  Hence, we have conservative and liberal judges.

The law in the United States, as in all capitalist countries, is an instrument of class domination that protects private property and enforces social inequality and oppression. Boasberg is an enforcer of this oppressive state of affairs, but is doing a more slipshod job than most jurists it has been my experience to observe.

Soon, Boasberg will deny the injunction and the tribes will appeal, all the while DAPL construction crews working feverishly to finish their task. Tribal lawyers will try to make the equity argument while the matter winds its way through the appeals process.  DAPL attorneys will contend that the case is moot because the pipeline is completed. This is one scenario.

The other scenario is to fight this war in the streets and in other venues across the nation while still pursuing legal relief. We can do so while remembering that the courts are civic institutions that respond to the will of the people — even the court of bumbling Boasberg.


Albert Bender
Albert Bender

Albert Bender is a Cherokee activist, historian, political columnist, and freelance reporter for Native and Non-Native publications. He is currently writing a legal treatise on Native American sovereignty and working on a book on the war crimes committed by the U.S. against the Maya people in the Guatemalan civil war He is a consulting attorney on Indigenous sovereignty, land restoration, and Indian Child Welfare Act (ICWA) issues and a former staff attorney with Legal Services of Eastern Oklahoma (LSEO) in Muskogee, Okla.