Structural Bias in PUC Review Process of Line 3 Favors Enbridge

Part II of a series looking at Ojibwe Band responses to Administrative Law Judge Ann O’Reilly’s report and recommendations on the Enbridge Line 3 tar sands pipeline. [Note: Ojibwe and Chippewa are both colonial names for the Anishinaabe. They are used in this story because of their use as official band names.]

The current Line 3 is blue, the proposed reroute is in red. Light green shaded area reflects the “ceded lands” where bands retain rights to hunt, fish and gather.

Federal Indian law and the interpretation of treaties is complicated business; it requires specialized legal training. Ojibwe bands in northern Minnesota are pushing back on how Administrative Law Judge Ann O’Reilly interpreted treaty law in her report on the Enbridge Line 3 crude oil pipeline, submitted to the Minnesota Public Utilties Commission (PUC).

Some of her interpretations don’t conform with court decisions, Ojibwe bands say.

At issue are Ojibwe treaty rights to hunt, fish and gather in northern Minnesota. In the legal world, these are called “usufructuary rights.” The dispute is over whether Ojibwe bands retained these hunting and fishing rights on lands they ceded by treaty to the U.S. government.

O’Reilly’s effort to interpret treaty law is flawed, and it reflects a major flaw in the Line 3 review process. First, according to her official state profile, O’Reilly doesn’t appear to have Indian law expertise. This is not a knock on O’Reilly; it’s a knock on a system that wasn’t set up to look out for treaty rights. Second, the system pushes resolution of treaty rights disputes to the end of the legal process instead of making them the priority and putting them at the beginning.

The process could just as easily have defended Ojibwe treaty rights and forced Enbridge to overcome that presumption in court before its application process even started.

It’s reasonable to ask why treaty rights issues didn’t receive more attention at the start of the process. The federal Indian Trust responsibility is a U.S. obligation “to protect tribal treaty rights,” according to the U.S. Department of Indian Affairs.

At this point, it’s not happening.

Close-up of the corrosion on a section of Line 3’s exposed pipeline on the Fond du Lac reservation. (Photo by John Ratzloff)

The Elephant in the Room

Enbridge’s current Main Line Corridor has six pipelines including Line 3. It runs through two Native nations: Leech Lake and Fond du Lac. Line 3 is old and failing. Enbridge has proposed building a larger Line 3 pipeline along a new corridor, avoiding Leech Lake and Fond du Lac lands. Still, it would cross lands where Ojibwe bands claim rights to hunt, fish and gather.

The PUC is expected to vote on Line 3 in late June. Treaty rights will be the elephant in the room.

This blog asked the PUC the following question:

How does the PUC view its responsibility to understand the underlying usufractuary treaty rights before moving forward with a vote?

Dan Wolf, the PUC’s executive secretary, gave the following response by email:

The Commission’s decisions are based on the record developed by the parties, and the record shows that the parties disagree about the impact of tribal treaty and usufructuary rights …. The Commission cannot comment on disputed issues in a pending matter.

Comment: Just like O’Reilly, the PUC, will make its Line 3 decisions based on its assumptions and understanding of treaty rights. Just like O’Reilly, the PUC is not expert in treaty law; it only has what O’Reilly wrote and the Ojibwe bands’ responses. As a letter from the Fond du Lac band of Ojibwe says, the PUC “is not empowered to adjudicate” such treaty rights. So the PUC process will simply kick the treaty rights issue to the courts. Some will argue that “this is how the system is supposed to work.” And that’s the point. “The system” is set up to put treaty rights last.

Three Canons of Indian Law

In Minnesota v. Mille Lacs Band of Chippewa Indians, Supreme Court Justice Sandra Day O’Connor ruled in favor of Mille Lac’s rights to hunt, fish and gather.

O’Reilly’s report states that many treaties signed between the U.S. government and Ojibwe bands didn’t reserve their rights to hunt, fish and gather on lands outside their reservations. She draws this conclusion for treaties signed in 1847, 1855, 1863, 1867, and the Nelson Act of 1889.

The Red Lake Band of Chippewa and the White Band of Ojibwe submitted similar letters to the PUC (Red Lake letter and White Earth letter), strongly disagreeing. It asked the PUC to insert the following language:

The United States Supreme Court has long recognized that because the terms and provisions of Indian treaties involve the reservation of lands, waters, and hunting and fishing rights on which Indian life depends, specific rules control treaty interpretation. There are three basic Indian canons employed by the Supreme Court. First, treaty language must be construed as the Indians would have understood it, and the rights reserved by treaties remain intact unless Congress has express clear and unambiguous contrary intent. Second, Indian treaties must be construed liberally in favor of the Indians. Finally, ambiguities in the treaty language must be resolved in favor of the Indians. These interpretive rules reflect the Supreme Court’s understanding that a “treaty was not a grant of rights to the Indians, but a grant of right from them – a reservation of those not granted. …

Red Lake and White Earth argue that just because certain treaties don’t explicitly give the Ojibwe the usufractuary rights to hunt, fish and gather, it doesn’t mean — as O’Reilly seems to believe — that they lost those rights. On the contrary, since the treaties were silent on these rights, they remain in place.

For instance, here’s how Red Lake responded to the Judge’s assertion that the band didn’t retain its rights to hunt, fish and gather under the 1863 Treaty:

The entire 1863 Treaty is completely devoid of any language expressly mentioning–much less abrogating–usufructuary rights. Similarly, the treaty contains no language providing money for the abrogation of previously held rights. Accordingly, the Red Lake Band’s usufructuary rights remain intact on the lands ceded to the United States through the 1863 Treaty.

Minnesota v. Mille Lacs Band of Chippewa Indians

To further make their point, Red Lake and White Earth both cite the 1999 U.S. Supreme Court decision: Minnesota v. Mille Lacs Band of Chippewa Indians. The question in this case was whether the Mille Lacs Band had usufructuary rights to fish, exempt from state regulations. According to the legal website Oyez, the Mille Lacs Band ceded land to the U.S. government under the 1837 treaty, and the Ojibwe retained rights to hunt, fish and gather on the ceded lands. The subsequent Treaty of 1855 created the Mille Lacs Reservation and was silent on the band’s  rights to hunt, fish and gather.

In a 5-4 decision written by Sandra Day O’Connor, the Court ruled that the Mille Lacs Band did not relinquish its rights to hunt, fish and gather in agreeing to the 1855 treaty. It was a major victory for Native nation sovereignty.

Comment: This 1999 case would seem to give the PUC a legitimate reason to consider that these Ojibwe usufractuary rights exist and delete O’Reilly’s findings that the Ojibwe lost their rights to hunt, fish and gather under multiple treaties.

Unjust Treaties

The U.S. government coerced the Ojibwe to sign treaties and to her credit, O’Reilly acknowledges treaties were unjust. She writes:

Notably, Indians and U.S. government officials entering into these treaties were not on equal footing, as the treaties were written in English and most often conducted under threat of harm to the Indians.
Then, in the next sentence, she does a 180:
Nonetheless, by entering into these treaties, the Indian tribes relinquished their rights to the real property and retained only those rights specifically identified in the treaties.  In most treaties, the Indian tribes did not retain any usufractory [sic] rights to the ceded lands.

Comment:  It’s bizarre to admit that treaties were essentially abusive — “conducted under threat of harm” — and then follow that with a sentence starting with “Nonetheless …” If the treaties were unjust, there is no “Nonetheless.” There is a need for repair. At a bare minimum, that repair means recognizing treaty rights to hunt, fish and gather.

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