Treaties are a two-way street with rights and responsibilities for both parties. On Line 3, Minnesota is failing its duty.
The Treaty People Gathering, June 5-8, garnered extensive media coverage, notably the June 7 actions taken to stop construction of the Enbridge Line 3 tar sands pipeline through northern Minnesota.
The media covered the political pressure placed on President Joe Biden to live up to his campaign promises to address climate change and respect Tribal sovereignty. It covered water protectors chaining themselves to Enbridge equipment and the subsequent arrests of approximately 200 people. It covered speeches by important movement leaders and celebrities such as Winona LaDuke, Tara Houska and Jane Fonda.
Most stories made a passing reference to treaty rights, but failed to give the topice much ink. It’s not something that fits easily into a two-paragraph summary or a 30-second video clip.
The problem is that many non-Indigenous people erroneously view treaty rights as a gift from the United State government to Indigenous Nations. Treaty rights are a binding contract between two parties, each with their own rights and responsibilities.
Line 3 is a climate wrecking ball. It’s damaging Minnesota’s clean waters and state forests. Future tar sands crude oil spills will do great harm to state resources.
And the state of Minnesota is taking on all these risks for a pipeline we don’t need.
Those are all good reasons to oppose Line 3.
To understand the level of anger Indigenous people and their allies feel against Enbridge and its pipeline, you have to understand treaty rights.
Line 3 is the latest in a centuries-long string of broken promises and breech of trust by state and federal governments with Native Nations.
Check out Martin Case’s The Relentless Business of Treaties for the ugly details. I’ll summarize with a metaphor.
Imagine you and your seven-member family jointly owned a $300,000 home. Two family members cut a deal to sell to an investor. You and other family members oppose the sale. The investor says a deal is a deal and forces the transaction at the barrel of a gun.
Then the investor says, “Here’s $30,000. Let’s call it even.”
That’s kind of how treaties worked.
The Treaty People Gathering emphasized that we are all treaty people.
For those of us who are non Indigenous, we own homes or rent apartments on lands formerly occupied by Indigenous peoples. The U.S. government claimed the land based on treaties, and we benefit from those treaties today.
If we live in the metro area and travel to northern Minnesota to fish, hunt, swim, boat, ski, or hike, we get to do that because of land rights the United States acquired through treaties. If we live outside the metro and drive into the cities for a sporting event, the State Fair, or a show, that’s a benefit derived from treaty rights.
Non-Indigenous people also have treaty obligations. In the grand scheme of things, they’re minimal. Indigenous Nations got very little for ceding their lands.
For those of us who are non-Indigenous, it is our moral obligation and legal duty to make sure Minnesota and the federal government live up to their treaty promises.
In terms of Line 3, the state of Minnesota should have delayed issuing permits until treaty issues were resolved. State regulators tried to duck that responsibility by arguing that treaties are a federal issue, not a state issue. That ignores the fact that the state is bound by federal law. Treaties are the supreme law of the land. While Minnesota could not make the final decision on treaties, it had a duty to make an informed decision.
It made no such effort.
In a 1999 landmark decision, the U.S. Supreme Court affirmed the Mille Lacs Band of Chippewa had treaty-protected rights to hunt, fish, and gather on the lands the Band ceded to the U.S. government in 1837. (The decision should have been a no-brainer given the treaty’s explicit language on the matter but the vote was 5-4, reflecting Indian Country’s lack of political power.)
Line 3 crosses lands, streams, wetlands and wild rice beds ceded as part of the treaties of 1854, 1855 and 1863. The Red Lake and White Earth nations have opposed the pipeline, arguing it threatens their treaty rights to hunt, fish and gather along the route. They cite the Mille Lacs Band decision as their precedent.
The 1854 Treaty explicitly states that the Obijwe in that area reserve the right to hunt and fish on the lands they ceded to the U.S. government.
The 1855 Treaty is silent on those rights, but they remain nonetheless under U.S. Supreme Court precedent. The Red Lake and White Earth Bands explained it in letters to the Minnesota Public Utilities Commission.
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 made a strong case that Line 3 violates their treaty rights. Regardless, multiple Minnesota state regulatory agencies and the Governor himself allowed the pipeline to be built without even trying to understand the state’s treaty obligations, as if Indigenous people and treaties didn’t matter.
Gov. Tim Walz even violated his own executive order promising to consult with tribes on matters that affect them. The order went into effect April 5, 2019. It applies to all state agencies.
“This order ensures the State of Minnesota and the eleven tribes engage in true government-to-government relationships built on respect, understanding, and sovereignty,” said Governor Walz. “We are committed to meaningful consultation with the tribal communities in our state.” (Emphasis in original.)Governor’s Office media release
On Line 3, Walz failed at meaningful consultation, let alone following treaty law.