Judge Takes Sides in Line 3’s Treaty Rights Debate When She Should Have Stayed Neutral

In her recommendations on the Enbridge Line 3 crude oil pipeline, Administrative Law Judge Ann O’Reilly took sides on the critical issue of treaty rights when she should have stayed neutral. Instead, she staked out a legal position outside the scope of her work and one detrimental to the Ojibwe Bands.

O’Reilly is not a treaty law expert. More importantly, O’Reilly’s recommendations are meant for the Minnesota Public Utilities Commission (PUC) and the PUC isn’t going to take a position on treaty rights. It’s beyond the PUC’s scope. O’Reilly should have stayed neutral and articulated the PUC’s predicament: The PUC can’t decide treaty law disputes yet treaty rights are a critical issue underpinning its Line 3 decision.

On page 141, O’Reilly makes a definitive statement on treaty rights saying only two treaties –1837 and 1854 — guarantee Ojibwe the rights to hunt, fish and gather outside reservation lands. Tribes didn’t retain these rights in any other treaty, she said.

Comment: O’Reilly overstepped her jurisdiction. As we wrote in an earlier blog, Red Lake and White Earth provided compelling commentary to the PUC that these hunting and fishing rights could still exist on off-reservation lands. (Red Lake letter and White Earth letter). They 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.

During Line 3’s public comment period, O’Reilly got lots of testimony on treaty rights. Perhaps she felt compelled to take a position. As an alternative, her report could have stayed neutral and helped frame the debate. Here is one possible alternative that could have been written:

The Line 3 decision raises significant disputes about treaty rights. The PUC, however, is not the appropriate body to adjudicate treaty rights.

Some have argued that Ojibwe Bands don’t have treaty rights to hunt, fish and gather on off-reservation lands — lands crossed by the proposed pipeline. Those rights are not expressly included in treaty language except in two specific treaties. The Ojibwe respond by saying that a “treaty was not a grant of rights to the Indians, but a grant of right from them,” meaning that they retained those rights to hunt, fish and gather unless the treaty explicitly said they gave them up — which they did not.

This issue is for another court to decide, but it complicates PUC’s decision. One option — should the PUC decide to proceed with Line 3 — is to include a provision that states that no Line 3 pre-construction work should begin until treaty rights are resolved by the appropriate court.