Mary Annette Pember
Indian Country Today
Enbridge is getting personal with the Bad River Ojibwe tribe over the company’s Line 5 pipeline route through tribal lands in Wisconsin.
In recent lawsuits, Enbridge has targeted individual tribal members and staff, seeking the court’s permission to question them under oath about their “thought process” in opposing renewal of the company’s easement through the reservation.
For Bad River citizens and leaders, however, the issue has always been personal.
Bad River or Mashkiziibii (Medicine River) has an abiding, irremovable quality for Ojibwe people. Central to their world view and spirituality, and an example of their sustainable connection with traditional foods and ways, Bad River is more than geography. The river and land represent Ojibwe blood memory, according to Aurora Conley, a citizen of the Bad River tribe and a member of the Anishinaabe Environmental Protection Alliance.
“The land is what makes us who we are here but it’s not so much the land we are trying to save as much as we are determined to keep ourselves strong,” Conley said.
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The court ruled against the company’s request, but the legal battles continue to drag on.
“Ours is a long memory of the fact that we’ve been here for thousands of years,” said Bad River Band Chairman Mike Wiggins. “We have a long vision forward rooted in water resources, in the quality and purity of our water.”
Enbridge is fighting to keep oil flowing through the approximately 12-mile portion of its 645- mile-long, oil and natural gas pipeline route that runs through Bad River tribal lands.
The 69-year-old Line 5 originates in Superior, Wisconsin, and travels east through Bad River before it runs through Michigan’s upper peninsula, then under the Straits of Mackinac toward its final destination at a terminal in Sarnia, Ontario.
Line 5 opponents point to Enbridge’s history of pipeline leaks and failures. The line has leaked at least 29 times between 1968 and 2017, according to data published by the National Wildlife Federation, including a 2007 oil spill near Clearbrook, Minnesota, and the company’s Line 6B leak in 2010 in which more than 843,000 gallons of tar sands oil spilled into a tributary of the Kalamazoo River.
Michigan Gov. Gretchen Whitmer, a Democrat, ordered Enbridge in November 2020 to halt the flow of crude oil through Line 5, ordering the state’s Department of Natural Resources to revoke and terminate the company’s easement. And Michigan Attorney General Dana Nessel has filed a complaint in Ingham County Circuit Court to revoke the easement.
Five Michigan tribes including the Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Band of Odawa and the Nottawaseppi Huron Band of Potawatomi signed friend-of-the-court briefs in support of the legal action. And in May 2021, the Bay Mills tribal council voted to banish Enbridge’s Line 5 pipelines from tribal lands.
Warnings of environmental disaster
Enbridge first secured easements for its pipeline from the Bad River tribe in the 1950s, renewing them in the 1970s and the 1990s. The easements expired in 2013.
In 2017, the tribal council voted not to renew the easement and filed a federal lawsuit in 2019 against Enbridge, demanding the company discontinue the flow of petroleum products through the line and remove it from the reservation.
In the lawsuit, the tribe argues that it has the right not to renew pipeline easements as a matter of basic property rights. The tribe is also seeking $45 million in damages from Enbridge for trespassing.
“We want Enbridge out of our watershed and the system of waters where we get our drinking water,” Wiggins said.
The tribe said in the 2019 lawsuit that the potential is high for environmental disaster.
“While the risk of a rupture or leak of Line 5 is significant along the entire reservation corridor, the circumstances just east of the location where the pipeline currently passes beneath the Bad River portend a looming disaster,” the suit says.
According to the lawsuit, the Bad River is carving away its banks and soils that conceal and protect the pipeline, and will soon expose it to damage.
“These circumstances represent an existential threat to the tribe, its reservation resources and its way of life and pose a dire threat to the treaty-protected rights of the Band and its members in the lands and waters of the reservation,” according to court documents.
Line 5 opponents are also concerned about the potential environmental threats point to Enbridge’s proposed use of horizontal drilling, which can lead to “frac-outs” of drilling fluid used to drill under bodies of water. According to the Minnesota Environmental Partnership, Enbridge’s use of horizontal drilling along Line 3 has polluted numerous bodies of water in Minnesota with drilling mud.
Enbridge offered the tribe a $30 million settlement in 2019 over expired easement leases, paying $2 million per year until the pipeline is no longer needed and $10 million after the company starts up a rerouted pipeline south of reservation lands. The reroute, according to Wiggins, however, is still within the Bad River watershed and poses danger to the tribe’s water and wild rice.
The tribe declined Enbridge’s settlement offer.
New legal action
Enbridge filed a counter-suit in May 2021, claiming that requirements for the company to obtain access permits in order to conduct maintenance on the line are unlawful and unreasonable. Among the defendants named in the lawsuit are Naomi Tillison, the Bad River tribe’s natural resource director.
“Director Tillison’s purported ‘requirements’ for Enbridge Energy to obtain access permits for accessing Line 5 are unlawful and not supported by any legal authority,” according to Enbridge’s lawsuit.
The company asked the court to allow attorneys to take statements under oath with tribal council members over their opposition to the Line 5 easement.
Wiggins said the suit is taking an adversarial approach to the tribe.
“Enbridge is suing us, litigating adversarily as though we’re enemies, because we want them out of our watershed,” Wiggins said.
Indeed, according to media reports, the six-member tribal council was evenly split on the decision to order Enbridge to remove its pipeline and stop the flow of petroleum products through reservation lands. It was Wiggins who cast the deciding vote. The scenario, according to pipeline opponents, motivated Enbridge to pursue depositions with the individual tribal council members.
Angelique Eaglewoman, professor and co-director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law in St. Paul, Minnesota, described Enbridge’s legal strategy as intimidation tactics.
“Bad River tribal government is simply determining how they will protect their natural resources,” said Eaglewoman, a citizen of the Sisseton-Wahpeton Dakota Oyate.
She said Enbridge’s insistence on a jury trial is a strategy designed to capitalize on the lack of education about tribal government authority, sovereignty and treaty rights.
In an interview with Gizmodo, Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University’s College of Law, agreed.
“For some people who don’t know the history of tribes, it’s really easy to be unsympathetic,” said Fletcher, a citizen of the Grand Traverse Band of Ojibwe.
Promises of jobs and money
Wiggins said Enbridge is also employing a strategy to divide the community through short-term jobs and payouts for projects.
“This is a typical page out of their playbook, throwing money around in order to buy their way through,” he said.
Enbridge officials are touting the project’s economic impact on local communities.
“The relocation project will create 700 direct construction jobs,” said Juli Kellner, spokesperson for Enbridge in an email to Indian Country Today.
“An estimated $46 million will be spent specifically with Native owned businesses, communities and training and hiring Native American workers who will make up 10 percent of the project workforce,” Kellner said.
Enbridge signed a project labor agreement at the Steamfitters Local 601 training center in Madison, and several trade unions signed a friend-of-the-court brief in April opposing Bad River’s lawsuit and supporting the Line 5 project.
“The public interest weighs against ejectment because shutting down the pipeline would have devastating effects on workers whose jobs and communities depend on it,” according to the brief.
Indeed, some Bad River citizens have privately expressed the belief that ultimately Enbridge will prevail so the tribe should accept a settlement.
Conley understands the dilemma. Enticed by the rate of pay, some Bad River citizens have accepted jobs with Enbridge. Among those is one of Conley’s cousins, who now works for the company.
“He knew I’d be disappointed when he told me he took a job with Enbridge,” Conley said. “I think he was even a little disappointed with himself. But he’s got five kids and I understand how hard it is.”
Conley also understands why some want to accept Enbridge’s settlement.
“Sure, the tribe can use the money,” she said. “There are so many challenges here and we don’t have the capacity to address them.”
But Enbridge is dividing the community and pushing people to go against their values for the simple price of providing for their families, she said.
“I would love to accept their money, to take their word that they won’t harm our community,” she said. “But it doesn’t feel right. The things we value here — the rice, the land and the water — are being put at risk.”
Enbridge employed similar tactics during its Line 3 construction project in Minnesota. In 2018, the Fond du Lac Band of Ojibwe made the difficult decision to allow Enbridge to replace its pipeline through reservation land rather than pursuing a new route that potentially endangered a larger area of ceded territory. As part of the agreement, Enbridge paid the tribe an undisclosed sum and tribal leaders agreed not to publicly oppose the project.
“As a sovereign nation, we are confounded that we are forced to choose between two evils as both routes pass through our lands,” Fond du Lac tribal Chairman Kevin Dupuis Sr. told Minnesota Public Radio.
And in 2017, the Lac Courte Oreilles Band of Lake Superior Chippewa in Wisconsin agreed to allow Enbridge to run pipelines through its reservation lands for annual payments totaling about $60 million.
Enbridge is now seeking approval for permits from the U.S. Army Corps of Engineers and the Wisconsin Department of Natural Resources for the proposed re-routing of Line 5.
In a March 2022 letter to the Army Corps, Bad River leaders expressed concern that the Corps’ call for public comment on the project failed to accurately describe the full scope of the pipeline’s environmental impacts. The tribe is also asking the Corps to conduct an environmental impact statement.
The potential problems were cited in a March 2022 letter to the U.S. Army Corps of Engineers from the U.S. Environmental Protection Agency.
“We believe that the proposed project may result in substantial and unacceptable adverse impacts to the Bad River and the Kakagon-Bad River sloughs wetland complex,” the EPA wrote.
EPA officials said in the letter they don’t believe there is enough evidence to support the conclusion that the proposed project is the least environmentally damaging alternative.
“The Kakagon-Bad River Sloughs wetland complex has been recognized as performing important and irreplaceable functions within the Lake Superior Watershed,” the letter stated. “We request that the Corps evaluate the recommendations provided to determine whether modifications to the proposed project can be made to avoid and minimize aquatic resource impacts.”
Bad River leaders have suggested that Enbridge use its existing Line 61 that runs south from Superior, Wisconsin, through Illinois, where it connects with smaller lines that can reach the same destination in Ontario.
Although Line 61 is newer and larger, the 42-inch pipeline was constructed in 2009, Enbridge claims that it doesn’t have the capacity to absorb oil diverted from Line 5.
The tribe’s lawsuit will likely go to trial in the fall, according to Wiggins.
In the meantime, grassroots groups are continuing to oppose the Line 5 project. In April, more than 200 organizations including Honor the Earth, the Sierra Club and others joined Indigenous women in submitting a letter to the Army Corps of Engineers urging the agency to deny Enbridge permits for the Line 5 project.
Communities United by Water, a water protector group, is planning a celebration on June 25 in Ashland, Wisconsin, near Bad River, where they will also organize and inform people about the impact of Line 5.
If pipeline opposition in Wisconsin grows as it did in Minnesota along Line 3, however, water protectors could be in for an unpleasant surprise.
In 2019, Wisconsin joined nine other states in enacting a critical infrastructure protection law that makes it a felony to trespass on property owned or leased by petroleum companies. Since Wisconsin is a so-called Public Law 280 state where Congress has conferred Indian Country criminal jurisdiction to states, people engaging in pipeline protests or actions, even on tribal lands, could be subject to arrest.
The Bad River tribe hand delivered a letter to Wisconsin Gov. Tony Evers, a Democrat, asking that he veto the bill. In the end, Evers signed the bill.
“Enactment of this law may have a significant impact on the Bad River Band, impeding the ability of our nation to use our land and exercise our reserved treaty rights,” the letter reads.
“Private companies should not be given new property rights, especially with respect to Indian lands.”
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