EPA urges U.S. Army Corps of Engineers to consult Native Nations on Line 5 decisions, honor ‘reserved treaty rights’

In the fall of 2021, 17 federal agencies agreed to coordinate and collaborate “for the Protection of Tribal Treaty Rights and Reserved Rights.”

It didn’t get signed in time to affect decisions on the Enbridge Line 3 tar sands pipeline in Minnesota, but it could make a difference in the federal review of the proposed rebuild of the Enbridge Line 5 pipeline across northern Wisconsin.

The U.S. Environmental Protection Agency (EPA) referenced the commitment to honor treaty rights in a March 16 letter to the U.S. Army Corps of Engineers (Corps) regarding an Enbridge Line 5 permit application. The letter specifically urged the Corps to consider how Line 5 would impact the Bad River Band of Lake Superior Chippewa’s “reserved treaty rights” to hunt, fish, and gather on the land they ceded to the U.S. government.

In its March 16 letter regarding Line 5, the EPA writes:

[W]e urge the Corps to ‘integrate consideration of tribal and reserved rights early into Parties’ decision- making and regulatory processes to ensure that agency actions are consistent with constitutional, treaty, reserved, and statutory rights’. We recommend that the Corps describe what actions it is taking to ensure that the permitting process for this project is consistent with the 2021 MOU [Memorandum of Understanding]. Specifically, the Corps should continue to engage in tribal consultation and perform a robust evaluation of potential impacts from this proposed project on reservation resources and reserved treaty rights in the 1837 and 1842 Treaty areas.” [Emphasis added]

EPA

The current Line 5 route and a proposed reroute.

The current Line 5 runs right through the Bad River Band’s Reservation. The Band has been clear that it opposes building a new Line 5 across its lands — and it wants the old Line 5 removed.

In response, Enbridge has proposed rerouting Line 5 around reservations lands. Yet even the reroute would affect the Band’s off-reservation reserved treaty rights, something the federal government has pledged to respect.

The MOU — which also requires federal regulators to consider a project’s climate impacts — is quoted at length below.

Its “Statement of Purpose” says

[The 17 signatories] affirm our commitment to protect tribal treaty rights, reserved rights and similar tribal rights to natural and cultural resources. The Parties intend to demonstrate that commitment through early consideration of treaty and reserved rights in agency decision-making and regulatory processes. The Parties intend to enhance interagency coordination and collaboration to protect such treaty and reserved rights and to fully implement federal government treaty obligations.”

MOU

The 17 signers include the EPA as well as the Department of Defense, which includes the Army Corps of Engineers.

The Memorandum continues:

Treaty-protected rights to use of and access to natural and cultural resources are an intrinsic part of tribal life and are of deep cultural, economic, and subsistence importance to tribes. Many treaties protect not only the right to access natural resources, such as fisheries, but also protect the resource itself from significant degradation. Under the U.S. Constitution, treaties are part of the supreme law of the land, with the same legal force and effect as federal statutes. Pursuant to this principle, and its trust relationship with federally recognized tribes, the United States has an obligation to honor the rights reserved through treaties, including rights to both on and, where applicable, off-reservation resources, and to ensure that its actions are consistent with those rights and their attendant protections. Accordingly, the Parties recognize the need to consider and account for the effects of their actions on the habitats that support treaty-protected rights, including how those habitats will be impacted by climate change. [Emphasis added.]

2021 Memorandum of Understanding

A few caveats. First, Gov. Tim Walz and Lt. Gov. Peggy Flanagan issued an executive order in 2019 promising “meaningful consultation” on projects affecting Native Nations and it turned out to be smoke and mirrors. Here’s hoping the federal government’s commitment is stronger.

Second, the 2021 Memorandum is only as good as the administration in charge. Should a strong pro-pipeline president get elected in 2024, the memorandum is toast.

For now, let’s hope it has a major impact.