Published in Economic Development
The Straits of Mackinac is a key Ojibwe cultural site and the location of a contentious dispute over the operation of the Enbridge Line 5 pipeline. The Straits of Mackinac is a key Ojibwe cultural site and the location of a contentious dispute over the operation of the Enbridge Line 5 pipeline. COURTESY PHOTO

Treaty rights at center of tribal opposition to Line 5 pipeline, tunnel

BY Sunday, July 19, 2020 05:23pm

An oil spill in the Straits of Mackinac would not only be an environmental disaster, but also it would threaten the economic livelihoods of tribes who fish the area while devastating a vital cultural site.

The five tribes composing the Chippewa Ottawa Resource Authority (CORA) say the the threat of a pipeline spill from Line 5 endangers their rights to hunt and fish in the area included under the 1836 Treaty of Washington, which effectively gives them property rights across a wide swath of the Lower Peninsula and the eastern half of the Upper Peninsula — all of which Line 5 runs through. 

While tribes say a plan finalized under the administration of former Gov. Rick Snyder to build a tunnel under the Great Lakes bottomlands also jeopardizes their treaty rights, CORA’s goal is to decommission the pipeline as it exists today.

“The pipeline itself and any future tunnel project still present risk to the natural resources in the Straits,” said Whitney Gravelle, tribal attorney for the Brimley-based Bay Mills Indian Community. “Though the focus has been on the Straits of Mackinac … we feel Enbridge is specifically painting this picture of just a couple miles of pipeline. But if there was a rupture anywhere along the pipeline, it would threaten and diminish those treaty rights of the five tribes.”

The CORA member tribes are the Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians and the Sault Ste. Marie Tribe of Chippewa Indians.

Until now, the tribes haven’t been formally involved in Attorney General Dana Nessel’s two lawsuits challenging Enbridge Energy and the tunnel plan. However, they are seeking to formally intervene in proceedings before the Michigan Public Service Commission involving tunnel construction. The CORA tribes — along with environmental groups — also submitted written comments to the Army Corps of Engineers this month requesting a public hearing on the tunnel proposal.

“As sovereign nations and in conjunction with treaty rights, we recognize we have a different role to play in all of these legal proceedings,” Gravelle said. “We’re just waiting for the right opportunity for us to step in and assert those treaty rights in ways that are most effective.”

David Gover, senior staff attorney with the Native American Rights Fund who also is providing legal support to Bay Mills, said tribes’ treaty rights will likely play a key role in their intervention before the MPSC. 

Tribal engagement, ‘nuclear option’

Although separate lawsuits filed by Attorney General Nessel go after the existing pipeline as well as the tunnel deal, the legal arguments aren’t formally based on tribes’ treaty rights.

“(Nessel’s) lawsuit has noted the devastating impact that a Line 5 oil release would have on fishery resources, including those where the tribes exercise rights protected by treaty,” Nessel spokesperson Ryan Jarvi said in an email. “But the tribes are sovereign entities who are not represented by the AG, so the AG’s lawsuit does not purport to assert treaty-based claims on behalf of the tribes. The tribes certainly could file their own lawsuit(s), and may well decide to do so.”

In recent years, tribes have largely felt left out of the formal discussions and information-sharing between the state and Enbridge.

Gravelle said communication with the state “improved somewhat” after Gov. Gretchen Whitmer and Nessel took office, but hadn’t necessarily reached the level of formal consultation.

“Really, until the last couple of months, most of our requests for consultation and for information have gone unanswered,” Gravelle said. “To us, consultation means you’re listening to concerns and interests of the tribes and determining how that plays a role in the decision-making you have to do in different permit applications.”

Jarvi said Nessel and staff have had “extensive communications” with tribes related to Line 5 and have “shared information about the pending litigation.”

Enbridge spokesperson Ryan Duffy said the company has “made sure to keep the tribes updated every step of the way. And we are open to meeting with them at any time to discuss the project.” 

“We are committed to forthright and sincere engagement with Indigenous people about Enbridge projects and operations that potentially affect them,” Duffy said. “We aim to develop mutual understanding through open, timely, two-way communication.”

Matthew Fletcher, director of Michigan State University’s Indigenous Law and Policy Center, said Enbridge benefits from the fact that Line 5 was installed in the 1950s when the state and federal government weren’t “paying particularly close attention to treaty rights.”

“The legal hook is really that the tribes have a right to a homeland, which includes access to clean Great Lakes waters, both for a sustainable fishery and access to water in general,” Fletcher said. “The treaty rights are really a relatively new player in all of this, though it should never have been that way.”

However, Fletcher added that tribes generally have been reluctant to take treaty rights to federal court as a “legal and political strategy.” Turning the implications of those rights over to a federal court is a “tricky thing.”

“I’ve always referred to treaty arguments as the nuclear option. You could win big or lose everything,” Fletcher said.

Cultural significance, other pipelines

The straits between the Upper and Lower Peninsulas that separate Lakes Michigan and Huron carry cultural significance to the Anishinaabe and Ojibwe that tribal leaders have compared to aspects of the Book of Genesis.

“The Straits of Mackinac is the place where the Earth was remade after it was cleansed, and that’s where they’re running this pipeline right through the heart of it,” Bay Mills Chairman Bryan Newland said on a podcast with the Michigan Climate Action Network.

Gravelle added the cultural significance of the Straits to the tribes is “kind of ignored by the general public.”

“A lot of Anishinaabe language is tied to the Straits of Mackinac,” Gravelle said. “Not only are we protecting our treaty rights and economy, we’re also fundamentally trying to protect the core of our culture and who we are as a people.”

Meanwhile, the Line 5 dispute is playing out amid other high profile pipeline cases across the U.S., several of which also involve Enbridge. A federal judge recently ordered the nearly 1,200-mile Dakota Access pipeline, which traverses the Midwest, to shut down while an environmental impact assessment is completed. The U.S. Supreme Court also recently rejected a request by the Trump administration to allow construction of the Keystone XL pipeline.

Gover at the Native American Rights Fund said while treaty rights are “usually papered over,” recent cases show they are “gaining traction.” That includes a U.S. Supreme Court decision this month involving treaty rights for the Five Civilized Tribes in eastern Oklahoma.

“The ripple effect you’ll see in Indian Country is — taking those principles from that case — treaty rights still exist,” he said. “The lesson here is that federal agencies have an obligation as the trustee to tribes to ensure the tribes’ treaty rights aren’t impacted and if they are, how and at what consequence.”

Read 2898 times Last modified on Tuesday, 21 July 2020 08:35
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