Off-reservation treaty rights to hunt, fish and gather remain an important and unresolved issue in the efforts to stop the Enbridge Line 3 tar sands crude oil pipeline.
The Minnesota Public Utilities Commission (PUC) voted last year to approve the pipeline, doing so over objections by Anishiaabe bands that argued the pipeline violated their treaties. Line 3 would cross a large area of land where the bands retained “usufractuary” rights, a.k.a. rights to hunt fish and gather. The PUC decided — incorrectly — that it could approve the pipeline without first having the appropriate judicial review of these treaty rights
So it should be encouraging to Native nations and Line 3 opponents that the U.S. Supreme Court today upheld the Crow Nation’s off-reservation hunting rights, granted under the 1868 treaty, in the case of Clayvin Herrera v. Wyoming.
On this day in history, March 24, 1999, the U.S. Supreme Court affirmed the Mille Lacs Band of Chippewa had the treaty-protected rights to hunt, fish, and gather on the lands the Band ceded to the U.S. government by the 1837 treaty.
This treaty has particular relevance today. Anihsinaabe bands (called either Ojibwe or Chippewa by early settlers and treaty documents) are resisting the Enbridge Line 3 crude oil pipeline through northern Minnesota based on similar claims to hunting, fishing and gathering rights along the pipeline’s proposed route.
The Minnesota Public Utilities Commission’s (PUC’s) Sept. 5 final order approving the Enbridge Line 3 crude oil pipeline is disturbing. It ignores significant arguments brought forward by Native nations, environmental groups and youth, cherry picking facts to justify its decision.
The order has many flaws in how it addresses climate change, environmental risks to our state’s clean waters, and other issues that will be explored in a later blog. This blog focuses on the order’s racist conclusion that the PUC doesn’t need to consider the pipeline’s treaty rights impacts. Continue reading →
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.
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