Mary Annette Pember
Indian Country Today
The Bay Mills Indian Community tribal council voted to banish Enbridge’s Line 5 pipelines from the reservation as well as lands and waters of their ceded territory as efforts grow to fight the controversial Michigan project.
The resolution approved by the tribe’s executive council on Monday, May 10, comes on the eve of a shutdown order issued by Michigan Gov. Gretchen Whitmer that would terminate the company’s 1953 easement to cross the lakebed under the Straits of Mackinac.
Whitmer ordered the pipeline to stop running at midnight Wednesday, May 11, and said Tuesday in a letter to Enbridge officials that any profits generated after the deadline would belong to the state of Michigan.
According to a statement issued by the tribe, the Treaty of 1836 has reserved the right for tribal citizens to hunt, fish and gather in ceded territory for all time. This includes the waters of Lake Superior, Huron and Michigan which comprise the Straits of Mackinac.
"Enbridge's continued harm to our treaty rights, our environment, our history, our citizens, and our culture, is a prime example of how banishment should be used," said President Whitney Gravelle of the Bay Mills Executive Council in a written statement issued by the tribe.
"Banishment is a permanent and final action that is used to protect all that we hold dear,” Gravelle said.
Gravelle said banishment is not a practice taken lightly by the tribal government. Banishment is a traditional, historical, and customary form of tribal law that has existed since time immemorial and is only exercised by the tribe when egregious acts and misconduct have harmed tribal citizens, treaty rights, territories, and resources.
The Bay Mills Indian Community is located in Brimley, Michigan, about 50 miles north of Mackinaw City and the Straits of Mackinac.
In November 2020, Michigan’s governor ordered Enbridge to cease running crude oil through Line 5 by midnight Wednesday. Whitmer also ordered the state’s Department of Natural Resources to revoke and terminate the company’s easement.
“We intend to keep operating Line 5,” wrote Michael Barnes, Enbridge spokesperson, in an email to Indian Country Today.
Enbridge leaders insist that Whitmer does not have the authority to enforce a shutdown without an order by a state or federal judge and has appealed the governor’s decision in federal court. Both Enbridge and the state of Michigan are currently in federal-court-ordered mediation and are expected to reach an agreement later this week.
“We are following the law and are in compliance with the regulations that apply to pipelines. Line 5 is not only safe, it’s critically vital for Michigan and the region. Along with propane to more than half of Michigan, Line 5 provides light crude oil that area refineries turn into more than 6,000 products. From fuels to phones to cars, gardening supplies, medical equipment and solar panels, Line 5 helps make it possible,” Barnes wrote.
Barnes also noted that the next mediation session between Enbridge and the state of Michigan is set for Tuesday, May 18.
“We are hopeful that mediation will provide positive results,” he wrote.
Regarding Bay Mills banishment resolution Barnes wrote, “We received the resolution from the Bay Mills Indian Community and we’re obviously disappointed by it. Enbridge has tried repeatedly to open dialogue with Michigan tribes. We stand ready and committed to these conversations.”
Enbridge’s Line 5 corridor runs 645 miles from Superior, Wisconsin, through Michigan’s Upper Peninsula, under the Straits of Mackinac and terminates in Sarnia, Ontario, in Canada. Constructed in 1953, the lines carry oil from Alberta’s oil sands as well as natural gas and propane.
In revoking the company’s easement and ordering its shutdown, Whitmer cited unreasonable risk posed by the pipelines to the Great Lakes.
“The Line 5 dual pipelines that run through the Straits of Mackinac are a ticking time bomb that threaten the health and safety of Michiganders and our Great Lakes,” Whitmer said in a written statement.
In November 2020, Michigan’s Attorney General Dana Nessel filed a complaint in Ingham County Circuit Court seeking to revoke the 1953 easement and stop the flow of oil through Line 5.
The Bay Mills Indian Community as well as the Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Band of Odawa Indians and the Nottawaseppi Huron Band of Potawatomi have signed friend-of-the-court briefs in support.
Line 5 passes through 1836 treaty lands of the five tribes in Michigan that comprise the Chippewa Ottawa Resource Authority. Sixteen states and several environmental organizations have also submitted court briefs in support.
In 2018, an anchor struck and dented the pipeline that currently lies on the lakebed under the Straits of Mackinac. This accident as well as the 2010 oil spill from Enbridge’s Line 6B along the Kalamazoo River have fueled concerns among tribes and others about the devastating impact of an oil spill in the Straits. According to a 2017 report by the Pipeline Hazardous Materials Safety Administration, more than 1.1 million gallons of oil have leaked from 30 plus on-land spills along Line 5.
Enbridge is proposing constructing a tunnel under the Straits that would contain the pipelines.
In partnership with Earthjustice and the Native American Rights Fund, the Bay Mills Band has also challenged a permit issued to Enbridge by the Michigan Department of Environment, Great Lakes and Energy allowing the company to build the tunnel.
Several tribes in Minnesota are also fighting against another Enbridge pipeline project, Line 3, which passes through the ceded treaty territories of several tribes as well as some reservation lands. Enbridge is framing Line 3 as a replacement project for the existing pipeline that was first installed in the 1950’s. Pipeline opponents, however, note that the project is actually creating a new, larger gauge line that can carry tar sands oil. LIne 3 runs 337 miles from Alberta, Canada to Superior, Wisconsin. Opponents and water protectors have created several camps along the Line 3 route and have been actively staging actions to stop construction.
In both Minnesota and Michigan, tribes and pipeline opponents maintain that Enbridge’s pipelines pose serious risks to the environment in the form of leaks and spills. Moreover, they say that now, with increased threats posed by climate change, is not the time to invest in fossil fuel infrastructure.
There is a growing awareness among those opposed to pipeline construction that Native American sovereignty as expressed by treaty rights can play a powerful legal role in discouraging such projects.
In Michigan, as part of the banishment resolution, Bay Mills executive council is asking any regulatory body with oversight authority to enforce the banishment. This includes the other four members of the Chippewa Ottawa Resource Authority.