Michigan tribes say Line 5 pipeline tunnel plan ignores treaty rights

Update: Mackinac Bridge Authority shouldn't oversee Line 5 tunnel, Michigan Republicans say

Michigan officials have spent the past year pursuing a plan to tunnel an oil pipeline beneath the Straits of Mackinac while ignoring the 182-year-old treaty rights of Native Americans, multiple tribal leaders say.

While the Snyder administration formally met with tribes three times over the past year under a State-Tribal Accord, tribal leaders say these consultations were little more than an “airing of grievances” for them.

The last meeting between tribes and Gov. Rick Snyder was Sept. 27, less than a week before the state announced an agreement with Enbridge to pursue a $500 million tunnel for the company’s Line 5 pipeline. In other meetings, officials have been unwilling to share information from Enbridge or modify any agreements, tribes say.

“They more or less told us to pound sand,” said Bryan Newland, chairman of the Bay Mills Indian Community in the Upper Peninsula. “Our objective is not to show up and shake our fist at the state. It’s to propose solutions.”

Thurlow “Sam” McClellan, chairman of the Grand Traverse Band of Ottawa and Chippewa Indians, called the Sept. 27 meeting with Snyder a “formality.”

“As far as consulting, negotiating or looking at what’s best for the tribe in this situation, that’s not what we see or hear,” McClellan said.

The five tribes making up the Chippewa Ottawa Resource Authority are particularly frustrated because they retained fishing rights in the area under a treaty in 1836, while Line 5 was built by Enbridge in 1953.

Their criticism aligns with others who have called the tunnel plan a sweetheart deal for Enbridge made behind the scenes that would keep Line 5 operating in the Straits while the tunnel is built, which could take up to 10 years. The Detroit Free Press reported last month that members of the Mackinac Bridge Authority, an independent state agency that would own the tunnel, weren’t even consulted about the plan.

Snyder spokesman Ari Adler downplayed the tribes’ concerns about the consultations, noting that the state’s Pipeline Safety Advisory Board includes a tribal representative.

The last meeting with tribes was to “make sure the Department of Natural Resources, the Department of Environmental Quality and others have heard all of their concerns and see if there is a way to address them,” Adler said.

Asked to respond to the tribes’ characterization of the meetings, Adler said: “We are still listening to what the tribal concerns are.”

When Snyder created the advisory board by executive order in September 2015, it didn’t include a representative from tribal government. Now tribes are represented on the board by Homer Mandoka, the former chair of the Nottawaseppi Huron Band of the Potawatomi and former president of the United Tribes of Michigan. Mandoka was appointed three months after the board was created after criticism from tribal leaders.

“I was the loudest voice to say that was inadequate,” said Aaron Payment, chairman of the Sault Ste. Marie Tribe of Chippewa Indians.

Newland said a state-tribal consultation “carries with it certain expectations, at least for tribes. It’s not an opportunity for us to show up at a meeting and just air our grievances. It is collaborative and affects the decision-making process.”

The state consults with tribes under the accord on other issues as well, such as child welfare policies and gaming.

“It doesn’t seem like anything we had to say had any real impact,” Payment said. “In many ways they treat us like a stakeholder. We had to insist that consultation was a necessity.”

‘We were here first’

The tunnel plan announced on October 3 is the second agreement between the state and Enbridge within the past year. Enbridge would pay for the design, construction, operation and maintenance of the tunnel for up to 99 years. The Mackinac Bridge Authority would own the “utility corridor,” which could also hold electric transmission lines.

Snyder called it a “common-sense solution” that protects the Great Lakes “while maintaining critical connections to ensure Michigan residents have the energy resources they need.”

Meanwhile, the five tribes of the Chippewa Ottawa Resource Authority (CORA) are unified in calling for Line 5 to be shut down. The five tribes are the Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians and Sault Ste. Marie Tribe of Chippewa Indians.

“We had that treaty before Michigan was even formed. Enbridge came in the 1950s. If the governor is meeting with anybody it should be with us,” McClellan said. “When it comes to Native Americans, we’re kind of pushed aside and treated as second-class people. We’re not — we were here first.”

Payment said state officials also did not inform tribes of certain aspects of the tunnel plan, such as a state authority owning the tunnel. In consultations nearly a year ago, Payment said the tribes also weren’t informed of the November 2017 agreement between the state and Enbridge that effectively set the stage for the tunnel plan.

“It doesn’t feel like good faith,” Payment said. “Consultation is not a one-way communication. We have a stake here and we have property rights here as well.”

Newland said the state also rebuffed the tribes’ efforts to have Line 5 shut down during maintenance and to receive information that was shared between the state and Enbridge.

Enbridge spokesperson Ryan Duffy did not answer questions about whether the company met with tribes over the future of Line 5 or if the company made any concessions to them. Duffy said in an emailed statement: “We are committed to forthright and sincere engagement with Indigenous people about Enbridge projects and operations that potentially affect them. We aim to develop mutual understanding through open, timely, two-way communication.”

Treaty rights, legal questions

While environmental groups have raised legal questions with the tunnel related to public trust laws, tribes may represent another legal challenge to the project.

An oil spill in the Straits could directly threaten the CORA tribes’ fishing rights under the 1836 Treaty, and it’s an ongoing legal question as to whether building a tunnel violates subsequent agreements between the state and tribes.

Under the 1836 treaty, tribes retained their right to fish throughout the waters of the upper Great Lakes after ceding nearly 14 million acres in the Upper Peninsula and northern Lower Peninsula. In the 1970s, the state challenged tribes’ right to hunt and fish in the ceded territory, and the federal government sued on behalf of the tribes.

Federal courts have upheld the tribes’ rights and, since 1985, the tribes and the state have partnered to manage the waters of the upper Great Lakes. Line 5, if a spill were to occur or the habitat is damaged from a tunnel, effectively threatens those treaty rights.

“The whole process of granting easements (for the pipeline) is outside of that,” Payment said, adding that the 1836 Treaty was signed with the federal government a year before Michigan was granted statehood. “Tribes are beginning to look more closely at all of our legal options because we don’t believe we’re being listened to.”

For Love of Water (FLOW), a Great Lakes water law and policy nonprofit advocating to shut down Line 5, said a tunnel under the Straits “would risk violating the 1836 Treaty and consent decree with Michigan Tribes protecting the Straits fishing grounds.”

Newland, who is also an attorney, says the CORA tribes have a “legally protected interest — a property right, if you will — in the fish and the Upper Great Lakes. That carries with it the ability to protect our property rights, including the habitat to make sure fish continue to exist.”

The tribes are also negotiating a new consent agreement with the state over how the fisheries are regulated and protected.

“We intend to address the pipeline and other habitat issues in this upcoming agreement,” Newland said. “This is why it’s particularly frustrating for us treaty tribes: The unilateral decision on the part of the state to put a pipeline in place preempts what we intend to be a negotiated resolution.”

Editor’s Note: This story was republished with permission from the Energy News Network, a nonprofit news site dedicated to keeping stakeholders, policymakers, and citizens informed of the important changes taking place in the transition to a clean energy system. One sentence was slightly altered from the original version to denote the passage of time since the original publication. The story’s Creative Commons license can be found here.