Red Lake: Back to Square One with Enbridge Pipeline Trespass

(From Wikimedia Commons)

For many years, large corporations have run crude oil pipelines across a small piece of land owned by the Red Lake Nation, in effect trespassing on reservation property.

Red Lake and the pipelines’ current owner, Enbridge, had been in negotiations over a cash-and-land deal and reached a tentative deal in 2015. That just fell through. The Red Lake Tribal Council voted 5-3 last week to rescind the deal, according to news reports. (The 2015 deal had included an $18.5 million payment to Red Lake, but that payment was not made.)

The Tribal Council vote was the result of the tireless efforts of Red Lake member Marty Cobenais, who has opposed crude oil pipelines through the state and opposed efforts to sell tribal lands.

It’s not clear yet how Red Lake’s decision will affect Enbridge and the pipelines that cross that tract of land. (On a separate front, Enbridge is trying to push through a deal to expand and reroute one of its pipelines, Line 3, which is a whole separate controversy, and written about elsewhere on this blog.)

On Martin Luther King Day, I would like to explore a different question: How did this trespass on Red Lake land happen in the first place? It’s symbolic of how easy it has been historically (and today) to ignore and take advantage of Native rights.

Several news organizations have reported on the Red Lake vote, including MPR, the Duluth News Tribune, and Paul Bunyan Broadcasting. They shed no light on the history of this trespass, which goes back decades.

MPR’s brief story includes this definitive statement: “the tribe never gave the company permission to access the land.” The story leaves unanswered the question: How, then, did the pipeline get installed without that permission?

The Duluth News Tribune’s story gives a little more detail, stating that Lakehead Pipeline Co. Inc. initially installed the pipelines before being bought by Enbridge. It adds that Lakehead installed the pipeline, “before the reservation realized it owned the land.”

So how did that happen? How could the reservation not know it owned the land?

It takes reading in the Red Lake Press to get the history. A 2015 article explains the tentative land deal between Red Lake and Enbridge and the history of the problem.

The story goes back to 1889, when Red Lake provisionally ceded 3 million acres to the U.S. government, the article said. It was considered provisional because “only those lands that were sold by the United States to a third party (like timber companies and homesteaders) and for which the Band was paid were in fact ceded.” For various reasons, some of that land was never sold by the United States, so those parcels in effect remained with the Red Lake Band.

One of those chunks is the 8. 8.5-acre parcel under which Enbridge is pumping valuable and toxic crude oil through its pipelines.

U.S. Fails its Trust Obligation

The United States government and the Bureau of Indian Affairs (BIA) have a paternalistic “trust obligation” to Native Nations. According to the BIA website:

The federal Indian trust responsibility is a legal obligation under which the United States “has charged itself with moral obligations of the highest responsibility and trust” toward Indian tribes…

The federal Indian trust responsibility is also a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources …

According to the Red Lake article, the United States acknowledged that Red Lake should retain the lands that were ceded as part of the 1889 agreement but never sold. Lakehead’s construction started five years later, in 1950 with an 18-inch pipeline. Here’s the explanation:

From available documents, it appears that Lakehead thought that the … [l]ands were actually owned by an adjoining landowner and got an easement from that landowner. Apparently, Lakehead hired someone to do a legal opinion regarding the potential trespass, which concluded that it was not in trespass.

Hmm. Lakehead got a favorable legal opinion from someone it hired. I guess that really isn’t all that surprising. Somebody else got the easement money. Where was the BIA?

Over the years, Lakehead expanded the pipelines, in 1954, 1963, and again in 1973 (a 48-inch pipeline). It wasn’t until the 1980s that the BIA “discovered that the pipelines appeared to be in trespass,” the article said. The BIA and Lakehead exchanged correspondence about the trespass. However, at some point, the government program created to look at trespass on Native lands got shut down.

It wasn’t until 2007 that the BIA rediscovered the trespass issue. At that point, Enbridge owned the pipelines, the article said.

The issue still is unresolved, and appears heading back for more negotiations and/or legal action. This is now 62 years after the government declared that this land belonged to Red Lake.

There are some complicating factors regarding how this property got mapped, but the government clearly has failed to live up to the “moral obligation of the highest responsibility and trust” towards Red Lake.

For more, read: Enbridge and the Takeover of Red Lake Land.

[Note: An earlier version of the blog identify the parcel in question as a half acre. This was corrected to 8.5 acres.]

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