Indigenous tribes are claiming their rights under a pre-Michigan treaty while pursuing strategies to stop construction of a new pipeline under the Straits of Mackinac.
Tribes concerned about the destructive potential of an oil spill in the Great Lakes have long opposed Enbridge Energy’s Line 5 pipeline, which was built in 1953 without their input. As Enbridge moves forward with plans to replace its 68-year-old pipeline with a tunnel buried under the lake bed, members of Michigan’s 12 federally recognized tribes are using new political pressure and tools to protect their sacred waters.
Governor Gretchen Whitmer recognized tribal treaty rights when she obtained an easement that allows Enbridge to transport, on average, 22.6 million gallons of crude oil per day in the Great Lakes region. But Whitmer’s May 12 deadline for shutting down Line 5 has passed and Enbridge is still operating the pipeline.
David Arroyo, Tribal President of the Ottawa Grand Traverse Band and the Chippewa Indians, said Whitmer’s recognition of treaty rights represented a “paradigm shift” in the way US governments view their responsibility to protect human beings. Big lakes.
“We have been here for millennia and this is the land of our ancestors,” Arroyo said. “We should have been part of the conversation decades ago. “
The Grand Traverse Band was among the signatories of the Washington Treaty of 1836, which ceded nearly 14 million acres to the United States in exchange for the right to fish, hunt, and gather throughout the land. The tribe is also associated with legal efforts to close Line 5.
An oil spill would “change the universe” of tribal communities that depend on the Great Lakes for their survival and place significant historical and cultural value on the region, Arroyo said. The Tribal Council formally requested the removal of Line 5 in 2015.
“There should have been meaningful consultation before the pipeline was put in place,” Arroyo said. “Not that I’m saying we would have approved it, but we were never even considered. I think there is awareness now, but it is too late.
Matthew Fletcher, a member of the Grand Traverse Band and director of the Indigenous Law & Policy Center at Michigan State University, said the pipeline itself likely represented a treaty violation. But these rights have not been historically recognized.
It took a federal lawsuit to reaffirm commercial fishing rights that were challenged by the state of Michigan almost 140 years after the treaty was signed.
Fletcher said the tribes were unlikely to sue Enbridge on the basis of the treaty, calling it “the nuclear option.” While he is optimistic about improving relations between the U.S. government and tribal governments, Indigenous communities still struggle to make their voices heard.
“It’s really, really hard for (the tribes) to take a stand, but I think over the next few years they probably will,” Fletcher said. “It is a slow, expensive and quite brutal political process. The United States and the state government have always been terrible in telling tribes about things that directly impact their citizens. “
Tribal governments have passed a number of resolutions supporting the decommissioning of Line 5 in recent years. Last month, the Bay Mills Tribal Council also voted to “ban” Enbridge’s Line 5 pipelines from its reserve and from waters reserved under the treaty.
Meanwhile, Enbridge is moving forward with its plan to replace pipelines with a tunnel under the Straits of Mackinac. Representatives from six tribal governments sent a letter to the Michigan Department of Environment Great Lakes and Energy asking the state to deny permit applications.
A month later, EGLE approved the permits.
The Bay Mills Indian community is challenging the permits, arguing that EGLE failed to properly consult with tribes or fully assess the project’s impact on the cultural and historical resources of the Straits of Mackinac. The tribe also warns that building the tunnel could risk damaging archaeological artifacts that may be in the area.
The State Historic Preservation Office has recommended additional studies to assess the impact on cultural and historical resources before the permits are issued, but the Bay Mills tribe says these studies have not taken place.
Whitney Gravelle, president and chairwoman of the Bay Mills Indian community, said in a statement that the approval of the permits shows “an indifference to tribal sovereignty.”
“I think the most important point to remember is that this is an essential part of the identity of Bay Mills and other tribal nations,” said Debbie Chizewer, environmental lawyer at Earthjustice representing the tribe. “This area is a place of cultural significance (and) economic viability. It is something that they will fight to protect.
The Bay Mills Tribe also takes issue with an Enbridge cultural resource study which found a low likelihood of submerged cultural resources in the area. The tribe cites a “whistleblower” involved in the investigation who claimed that the study only considered the wrecks instead of the prehistoric remains of the indigenous people who resided in the area.
University of Michigan archeology professor John O’Shea wrote to the Historic Preservation Office to report the whistleblower’s account. O’Shea has previously published research documenting evidence of prehistoric hunting grounds under Lake Huron.
Fletcher said the presence of Ice Age artifacts reinforces the cultural significance of the Straits of Mackinac.
“This generates a whole new area of analysis that before this point the state and the federal government could ignore,” said Fletcher. “This is a pretty big layer of the tribe’s interest in the area; it’s not just about treaty rights anymore.
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