What are the treaties being invoked by Line 3 opponents?


By Yasmine Askari / MinnPost

While the U.S. government signed a series of treaties with the Anishinaabe people, including the Ojibwe, between 1825 and 1867, the most significant are those of 1837, 1854 and 1855.

Tribal council representatives and members of the White Earth Band of Ojibwe will be gathered at the Minnesota Capitol in late July to request a “nation-to nation” dialogue with Gov. Tim Walz and President Joe Biden in an effort to stop construction of Enbridge’s Line 3 pipeline.

A week before, leaders of the tribe gathered in a press conference to raise concerns about the pipeline’s effects on surrounding resources and waters, most notably the treaty-protected wild rice, and said continued efforts to build the pipeline was in violation of the tribe’s treaty rights.

As the pipeline nears completion, with the project estimated to be 60% finished as of June, opponents of the pipeline have been advocating for upholding treaty rights as a means to try to halt construction.

The White Earth Band is currently suing in federal court, arguing the Army Corps of Engineers can’t issue a permit without tribal approval. Another lawsuit against the Minnesota Pollution Control Agency (MPCA) over a water crossing permit is in the Minnesota Court of Appeals.

Meanwhile, in June the Minnesota Court of Appeals reaffirmed state regulators’ key approvals of Line 3 permits, with a three-judge panel ruling 2-1 that the state’s Public Utilities Commission correctly granted a certificate of need to the Canadian oil company.

“Manoomin (wild rice) is our most important spiritual, sacred, central part of our culture. This is part of the American Indian Religious Freedoms Act and our rights,” said Frank Bibeau, tribal attorney for the White Earth Band, during the press conference. “Manoomin grows everywhere right now in northern Minnesota. And it’s being starved out from water.

It’s being starved out for its nutrients.”

During the press conference, Bibeau and Allan Roy, secretary treasure for White Earth, spoke of the 1855 Treaty Authority and others.

The banks of the Mississippi River and the Great River Road in Aitkin County
outside of Palisades are dotted with pro-water and anti-Line 3 and -Enbridge signs.
(Photo by Jim Walsh/MinnPost.)

Relevant treaties and what they mean
A series of 19th-century treaties. While the U.S. government signed a series of treaties with the Anishinaabe people, including the Ojibwe, between 1825 and 1867, the most significant are those of 1837, 1854 and 1855.

The treaty of 1837 coincided with the collapse of the fur trade, the dominant source of commerce at the time, and the transition to logging as the dominant industry. The treaty is notable for being the first major land cession involving the Ojibwe people, and more importantly specifies the rights of the tribes to gather wild rice, hunt and fish. An estimated 12 million acres of land in central and eastern Minnesota and western Wisconsin was sold to the U.S. government in exchange for payments of $35,000 a year over the course of 20 years.

An interest in copper mining in the northeastern Minnesota led to additional land cessions in 1854, including the Arrowhead Region. The result was the establishment of several reservations, including that of the Fond du Lac and Grand Portage Bands. The rights of the tribes to hunt, fish and gather were reestablished.

Historians cite the treaty of 1855 as a turning point for the Ojibwe. Known as the Treaty of Washington, tribal leaders were compelled to travel to the nation’s capital, with the treaty resulting in significant changes that would have economic ramifications for the tribes for decades.

With much of their land now under U.S. control, the tribes relied on resources on the reservation and the promised treaty payments that were often left unfulfilled. As more land was taken by the logging industry, the tribe struggled to rely solely on hunting and fishing.

The treaty of 1855 is significant in the U.S. government’s attempt to allocate land to individual families and encourage farming through family-owned plots of land. The treaty also excluded the stipulations allowing the tribes to fish, hunt and gather that were mentioned in the treaties of 1837 and 1854. The result led to legal battles between the tribes and state and ultimately a case in the U.S. Supreme Court.

Minnesota v. Mille Lacs Band of Chippewa Indians
After decades of being fined and arrested for exercising their fishing rights, the Mille Lacs Band sued the state of Minnesota in 1990, claiming the state had violated their rights under the 1837 treaty. During court proceedings, tribal members were arrested during protests on their reservation.

In 1999, the U.S Supreme Court reaffirmed that the Ojibwe retained their rights to fish, hunt and gather from the 1837 treaty.

Current implications
Along with concerns that construction would harm the wild rice that is already vulnerable because of the current drought, Bibeau and Roy have raised concerns over the dewatering permit amendment issued by the Department of Natural Resources (DNR) to Enbridge on June 4 that would draw additional water from the wild rice beds. The dewatering permit allows Enbridge to displace water that seeps into the trenches where the pipeline is being built. The withdrawal of groundwater is governed by the DNR permit and the discharge of water back is governed by the MPCA.

Tribal leaders expressed concern about an amendment issued by the DNR that changed the permit to allow Enbridge to displace 5 billion gallons of water during the construction project versus the 500 million that were initially approved. In June, the Tribal Executive Committee authorized a letter to Walz requesting the permit be suspended as the groundwater involved was around the Mississippi headwaters and could possibly affect the wild rice beds.

“This really shows that the EIS (environmental impact statement) wasn’t adequate and didn’t contain all the information that we really needed to evaluate this project.” said Melissa Lorentz, an attorney at the Minnesota Center for Environmental Advocacy. “When you withdraw the water, especially if you’re withdrawing it right from the trench where it gets dirty, and then when you discharge it back, you have to make sure you’re not putting a bunch of dirty water into a new area.”

“Our water systems are all connected. All right. So if you take from one area, it affects another,” Roy said. “The federal government has a trust, responsibility to tribal nations and the United States as part of our treaty. The waterways, the food. The animals, everything that comes along with that are people, they have a trust, responsibility to make sure that these resources are protected not only for us, but our children.”

Enbridge says it has routed the new pipeline with the treaties in mind.
“The Line 3 Replacement Project included a first-of-its kind Tribal Cultural Resource Survey led by the Fond du Lac Band of Lake Superior Chippewa who managed review of the more than 330 mile route in Minnesota through the 1855 and 1837 treaty areas.  Fond du Lac employed tribal cultural experts who walked the full route identifying and recording significant cultural resources to be avoided. The project is now being built under the supervision of tribal monitors with authority to stop construction, who ensure that important cultural resources are protected,” said Juli Kellner, Enbridge spokeswoman.