Mary Annette Pember
Indian Country Today
Treaties are not just for tribes anymore.
Native treaty rights are becoming powerful tools for protecting the environment against government mismanagement and destructive private industries, as worldwide efforts intensify to halt climate change and protect the environment .
With the right to hunt, fish and gather on lands ceded to the federal government, treaties also offer growing leverage on state and federal governments to ensure the health of the habitats upon which those rights were granted.
“Tribes exercising treaty rights is not a one-sided thing,” said Paul DeMain, citizen of the Oneida and Ojibwe tribes and a board member of Honor the Earth, an Indigenous environmental advocacy organization.
“Non-Native citizens also benefit from natural resources being protected and preserved for tribal subsistence hunting, gathering and fishing.”
Treaty rights are already surfacing in the fight against Enbridge’s Line 3 and Line 5 pipelines that stretch from Canada into northern Minnesota and Michigan and back again.
Honor the Earth is one of several groups involved in organizing the Treaty People Gathering on June 5-8 in northern Minnesota in opposition to Enbridge’s construction of Line 3. One of the goals for the gathering is to educate people about the scope and authority of Indian treaties.
“Treaty education and protection are not the sole duty of Native people,” according to the Treaty People Gathering website. “It is the responsibility of non-Native people to know and respect the obligations included in federal and state treaties. Treaties protect all of us.”
The gathering comes at a critical time for the construction of Enbridge’s Line 3, which crosses the treaty territory of several Minnesota bands of Ojibwe.
With the Canadian-based company set to resume construction in early June of the controversial pipeline, organizers expect thousands of people from across the state and country to join water protectors in fighting the project.
Activists, known as water protectors, say both Line 3 and Line 5 pose a threat to the environment, with the potential for leaks or spills in sensitive areas.
Some tribes in Minnesota, Wisconsin and Michigan say the danger of leaks from the Line 3 and Line 5 pipelines pose significant risk of leaks or spills in sensitive areas, limiting tribal members’ abilities to rely on subsistence practices to feed themselves and preserve cultural and spiritual ways.
Enbridge officials say they have tried repeatedly to open dialogue with Michigan tribal governments and insist the company supports the United Nations Declaration on the Rights of Indigenous Peoples.
“We always strive to establish good faith engagement processes in line with the concept of free, prior and informed consent,” wrote Enbridge spokesperson Michael Barnes in an email to Indian Country Today.
Treaty rights upheld
The $2.6 billion Line 3 project – the largest in Enbridge history – is part of the company’s massive oil pipeline system. The largest in North America, Enbridge oil pipeline network sprawls across across Canada, Minnesota, Wisconsin, Michigan, Illinois and Indiana.
Both the Minnesota treaties of 1837 and 1854 expressly guarantee tribal access to ceded lands in order to hunt, fish and gather. Although the right is not expressly stated in an 1855 treaty, experts say the right was understood to be included by tribes signing the agreement at the time.
Under the reserved rights doctrine, Indian treaty provisions are to be interpreted from the perspective of what rights tribes intended to cede, not what the federal government intended to take, courts have held.
The requirement that state and federal governments protect the environment were upheld in court decisions in 1974 and 2018 in cases from Washington state.
In the 1974 Boldt decision, the U.S. Supreme Court affirmed that Washington tribes had the right to fish in off-reservation waters on ceded lands as guaranteed by the treaties of 1854 and 1855.
In 2018, after several years of court battles over the installation of culverts that blocked migrating salmon, the U.S. Supreme Court ordered the state of Washington to remove the culverts. Culverts are tunnels or drains under roadways that carry a stream or provide drainage.
According to the court, the state of Washington would be unable to uphold treaty obligations guaranteeing tribes access to a healthy fish habitat unless the culverts were removed.
Zoltan Grossman, professor of geography and Native studies at Evergreen State College in Olympia, Washington, describes the culvert case, Washington v. the United States, as the crown jewel of treaty rights cases.
As non-Natives accused tribal fishermen of taking too many fish, the salmon population in Washington continued to dwindle due to destruction of habitat in part caused by culverts.
In his book, “Unlikely Alliances: Native Nations and White Communities Join to Defend Rural Lands,” Grossman quotes Judge William Orrick, who inherited the case from Judge George Boldt.
“Were this trend to continue, the right to take fish would eventually be reduced to the right to dip one’s net into the water and bring it out empty,” the judge concluded.
Eventually, some commercial and sports fishermen joined forces with tribes to support protection of fish habitats.
“One of the strongest outcomes of the Boldt decision is using treaty rights to protect, repair and restore the fishery for everyone, not just for the tribes,” Grossman said in an interview with Indian Country Today.
“It was the tribes that made this happen. Treaty rights benefit the sport fishing industry, commercial fishing and tourism. The Culverts’ case has a really strong precedent that can potentially be applied elsewhere in the country,” he said.
‘Voices of local people’
Much of the land on which Americans live today was acquired through treaties with tribes that ceded millions of acres of lands through more than 350 treaties with the federal government during the 18th and 19th centuries.
In most cases, tribes retained rights to hunt, fish and gather on lands they ceded as well as on lands they kept.
Disputes today often center around a tribe’s right of access, such as off-reservation fishing. Too often these deliberations are cast as tribes manipulating an outdated system in order to gain special rights, according to treaty experts.
But treaties have impact far beyond Native communities. Treaties guarantee protections of the highest legal order for the health and safety of the environment, natural resources, land and water -- protections that benefit the entire community.
Often when treaty rights are brought up in a dispute, it’s often viewed as a zero-sum game, a victory or win for tribal nations and loss for the non-Native community, according to Grossman.
“Treaty rights as well as tribal sovereignty are good for everyone, the environment, the economy,” he said. “They strengthen the voices of local people against state or corporate power.”
According to Grossman and other treaty rights experts, invoking an Indian treaty right represents a stronger legal claim than non-Natives opposing a similar issue as part of an environmental complaint.
Opponents of Enbridge Line 3 in Minnesota and Line 5 in Wisconsin and Michigan claim that the treaties of 1837, 1854, 1855 and the 1836 Treaty of Washington in Michigan offer the same protections for access and protection of habitats that were upheld in the Culverts case.
According to Joe Plummer, attorney for the Red Lake Nation in Minnesota, treaty rights have always been an important element of tribal lawsuits opposing Line 3.
“We’ve brought up treaty rights through this whole process,” said Plummer, a citizen of the White Earth Nation.
The Minnesota Court of Appeals is expected to rule by June 21 on whether Enbridge adequately proved long-term need for the Line 3 project.
The project is designed to replace 382 miles of existing 32-inch pipeline with 337 miles of 34-inch pipe with capacity to carry tar sands oil from Alberta, Canada, to Superior, Wisconsin.
The independent Public Utilities Commission in Minnesota approved the project but the state Department of Commerce, the Red Lake Nation, the White Earth Nation and several Indigenous and environmental groups have argued in court that Enbridge failed to meet legal requirements showing need for the project.
The Line 5 project would construct a tunnel in Michigan under the Straits of Mackinac, which connects Lake Huron and Lake Erie. The existing Line 5 includes a segment about four miles long that now sits underwater on the lake bed in the straits. The line carries up to 540,000 barrels per day of light crude oil and synthetic crude, as well as natural gas liquids such as propane.
Michigan Gov. Gretchen Whitmer described Enbridge’s Line 5 portions of aging pipeline under the Straits of Mackinac as a ticking time bomb. Both Whitmer and Michigan tribes say that an oil leak in the straits would be catastrophic for the environment and fish habitat.
Whitmer invoked the state and federal government’s obligation to honor treaty rights in her November 2020 revocation of the Enbridge Line 5 easement under the Straits of Mackinac.
“The state serves, in effect, as the trustee of public rights in the Great Lakes for fishing, hunting and boating for commerce or pleasure,” she wrote in The Washington Post.
The Great Lakes and the Straits of Mackinac also have special ecological, cultural and economic significance for the tribes of Michigan, including the tribes’ hunting, fishing and gathering rights in the lands and waters ceded to the United States under the 1836 Treaty of Washington.
Enbridge has refused to obey Whitmer’s shutdown order. Both the company and state are currently involved in court-ordered mediation.
A state governor’s public invocation of treaty rights is significant, according to Whitney Gravelle, president of the Bay Mills Indian Community in Michigan.
“Governor Whitmer’s decision to issue the easement revocation was a huge moment for us. Her acknowledgement of treaty rights felt as though our voices were finally being heard,” Gravelle said.
Gravelle and other experts in treaty law, however, warned that treaty rights arguments in federal court should not be embarked upon lightly.
“There’s always the danger that a treaty right could become more restricted or eliminated as it's interpreted by a federal court,” said Gravelle.
“Tribes understand that a treaty right is how their people have survived for centuries,” she said. “They don’t want to jeopardize the livelihoods of their people.”
All treaties are not the same.
Figuring out the history and scope of treaties is time-consuming and expensive, said Colette Routel, co-director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law in St. Paul, Minnesota.
“It’s very hard to do that kind of work when you’re in the midst of challenging a federal or state project such as a pipeline,” Routel said.
Although environmental groups and other allies may be keen on getting tribes on board with using treaty rights to battle a project, they need to understand that in such cases tribes have far more to lose, she said.
“Tribes may have only one chance to litigate their treaty rights so the decision needs to come from the tribe. Treaty rights for tribes matter not just for one project but for the next 100 years,” Routel said.
The way Native people govern and see their rights is very different than mainstream U.S. society, Gravelle said.
“The U.S. as a whole is a very rights-based society -- the right to vote, the right to bear arms, the right to free speech, etc. But for Native people, especially tribal nations, put more emphasis on the responsibility of a society,” Gravelle said.
“Treaty rights come from a place of responsibility for us. We think of those rights more as treaty responsibilities,” she said.
“We’re responsible for our people being able to continue their traditional life ways and provide for themselves and their families. We’re also responsible for the treaty resources as well, making sure fish, wildlife and water habitats can continue to be healthy and survive.”
The Associated Press contributed to this report.