Treaties are a two-way street, with rights and responsibilities on both parties.
Non-Indigenous landowners in this country might not think about it, but our land titles trace back to treaties between the U.S. government and Native Nations. We have benefited immensely from these treaties and their legacy of cheap land.
The U.S. government coerced treaties, got vastly disproportionate benefits from treaties, and yet still broke treaties. Native Nations have struggled to enforce the few treaty provisions that benefit them. They deserve support.
A case now before the District Court in Clearwater County reflects an attempt by non-Indigenous people to uphold U.S. treaty obligations, specifically, that Anishinaabe people retain rights to hunt, fish, gather, and hold ceremony on lands they ceded to the U.S. government under the Treaty of 1855. (Full disclosure, I am a defendant.)
While the U.S. Supreme Court already has ruled that the Anishinaabe retain such rights under the 1855 Treaty, Clearwater County Attorney Kathryn Lorsbach is trying to relitigate the issue.
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 →
The Minnesota Public Utilities Commission (PUC) added conditions to Enbridge Line 3 pipeline permits, but they could amount to a Band Aid on a skull fracture.
Probably good to have a Band Aid. Just not really all that good.
The PUC had a strong position to negotiate permit language for the new Enbridge Line 3 tar sands pipeline. The PUC failed to use its power and act in the best interests of Minnesotans. Continue reading →
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. 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.]
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.
The [Leech Lake] Band is different than the White Earth, Red Lake, Mille Lacs, and Fond du Lac Bands. The [Judge’s] Report fundamentally fails to understand this. The Band is again trying to make that clear so that the [Public Utilities] Commission will not miss the point, as well.
Two Kinds of Treaty Rights
The Enbridge Line 3 crude oil pipeline proposal affects two kinds of treaty rights:
First, each of the Ojibwe bands has treaty rights to operate as a sovereign government and control land. (The colonial term is “reservation.”) Second, they have treaty rights with the cumbersome title: “usufructuary rights.” This refers to rights to hunt, fish and gather on “ceded territory,” that is, lands outside of reservation boundaries. (These hunting and gathering rights are complicated. More on this in a later blog.)
What is important from Leech Lake’s perspective is that Line 3 crosses its sovereign lands. (In fact, Line 3 runs in Enbridge’s Mainline Corridor which has a total of six pipelines. These pipelines also cross the Fond du Lac Reservation. Leech Lake and Fond du Lac are two of the seven sovereign Ojibwe Bands in Minnesota.)
Enbridge, a Canadian energy transportation company, has proposed a 1,000+ mile crude oil pipeline from Alberta to Superior Wisc., crossing northern Minnesota. It wants to reroute Line 3 through part of Minnesota, opening a brand new pipeline corridor to avoid Leech Lake and Fond du Lac lands. That route would still cross lands where various Ojibwe Bands have reserved “usufructuary” rights to hunt, fish and gather.
In-Trench Replacement Proposed
O’Reilly’s recommendations say if a pipeline is to be built, the best option is to remove the current Line 3 and rebuild in the same trench. She argues that plan has the environmental benefits of removing the old, decaying pipeline, and avoiding the environmental damage of opening a new pipeline corridor. The plan also has the economic benefit of creating jobs to remove the old pipeline, a project estimated to cost $1.2 billion.
Writing for the Leech Lake Band of Ojibwe, attorney Grace Elliott called O’Reilly’s plan “a terrible choice.”
Any suggestion of negotiation on in-trench replacement of Line 3 is offensive to the Band, whose sovereign government has legislatively passed an ordinance/resolution stating its official position against in-trench replacement. …
The Band does not accept the Report’s assumption that the Project’s impacts on off-reservation natural resources would have a greater negative socioeconomic impact on the tribal community than in-trench replacement of the pipelines across reservation lands.
Enbridge’s Mainline Corridor easements expire in 2029. Leech Lake’s letter said the Band won’t renew the agreement in 2029 “because it wants the pipelines removed as soon as possible.”
The Leech Lake Band said the impact of a new Line 3 “would be more favorable if the Commission approved a route outside the Reservation.”
The Band’s interests in this Project cannot be understated … With respect, the Band’s Reservation is different than ceded territories, and crossing the Reservation is different than crossing private property within a ceded territory …
‘Best and Most Plentiful Wild Rice Waters’
The Minnesota Public Utilities Commission is expected to vote on Line 3 in late June. It will rely on O’Reilly’s report for its deliberations.
The Leech Lake Band says that O’Reilly’s analysis is skewed, ignoring Line 3’s impacts on Leech Lake simply because the pipeline corridor already exists. The letter continues:
The Leech Lake Reservation has the best and most plentiful wild rice in the State. As [Leech Lake Band of Ojibwe Environmental Director Levi] Brown stated, ten percent of Minnesota’s fresh water lies within the Leech Lake Reservation boundaries, and Leech Lake has the most abundant wild rice resources. The existing Line 3 pipeline runs through the very heart of wild rice country where it crosses through the Leech Lake Reservation. …
The Leech Lake Band argues that rebuilding in the same trench “has the greatest impacts on wild rice of any alternative.”
Impacts on the Chippewa National Forest
O’Reilly’s report also fails to acknowledge the impact on the Chippewa National Forest of removing the old pipeline and installing a new one, the Band says. Leech Lake co-manages the Chippewa National Forest with the U.S. Forest Service. The current Line 3 affects 157 acres of that forest.
The Band has a memorandum of understanding with the U.S. Forest Service that was signed “to recognize treaty rights of tribes to hunt, fish, and gather wild plants on national forest lands.” Thus, to the extent [O’Reilly] was concerned about impacts on treaty rights, the record is clear that [the in-trench replacement plan] would have real and concrete impacts. The [PUC] should not ignore these facts.