The shutdown of Enbridge’s Line 5 marks a major moment in relations between the State of Michigan and the native Anishinaabe people.
BAY MILLS, Mich.—The Anishinaabe, known also as Chippewa or Ojibwe, are an Indigenous group living in Michigan and Ontario.
For hundreds of years, Anishinaabe people have lived around Whitefish Bay in the Upper Peninsula, becoming established as the Bay Mills Indian Community (BMIC) in 1860 by an act of Congress. Without their lands, taken from them by the government of the United States, there would be no Michigan.
And without their perseverance, the Great Lakes would be endangered.
For years, the BMIC has fought against the oil company Enbridge and the controversial Line 5 pipeline. Line 5 ran through the heart of Anishinaabe territory, ceded to the United States in 1836 paving the way for Michigan’s statehood in 1837, BMIC explained in a 2018 letter. That treaty granted the now-Bay Mills people the ability to, among other things, fish their waters in perpetuity. They argued that given Enbridge’s responsibility for the oil spill in the Kalamazoo river in 2010, Line 5 risked Michigan’s ability to hold up its end of the bargain.
As he was approving the Line 5 project, then-Gov. Rick Snyder, a Republican, ignored the 1836 treaty and consulted none of Michigan’s federally recognized Indigenous populations.
Gov. Gretchen Whitmer, on the other hand, recognized those treaties.
“The Great Lakes and the Straits of Mackinac also have special ecological, cultural and economic significance for the tribes of Michigan, including, but not limited to, the tribes that retain reserved hunting, fishing and gathering rights in the lands and waters ceded to the United States under the 1836 Treaty of Washington,” the order shutting Line 5 reads. “An oil spill or release from the Straits Pipelines would have severe, adverse impacts for tribal communities. The tribes have fundamental interests in the preservation of clean water, fish and habitat at the Straits. Many tribal members rely on treaty protected rights of commercial and subsistence fishing in the Straits and other Great Lakes waters that could be impacted by an oil spill or release.”
Bryan Newland, BMIC’s chair, told Michigan Advance it was the first time he saw an American leader proactively cite treaty rights for Indigenous people without being forced to do so by courts.
“It is always a struggle to get state governments to recognize the existence of our treaties, our rights and their responsibilities to not impair those rights,” he said. “It’s not enough to recognize our right to harvest. State governments have a responsibility to stop harming and degrading this fishery. This was a big step in tribal-state relations.”
In its Line 5 decision, Michigan recognized that environmental impacts of an oil spill—the odds of which were brought into sharp focus by damage to the pipeline over the summer—would harm indigenous people like those represented by BMIC, hundreds of whom rely on those fishing rights for survival. That strengthened tie also opens the door for other areas where treaties with indigenous people can be used to protect the environment.
“With environmental claims, there is sometimes a balancing test that’s applied between the potential harm and potential good,” Attorney Bill Rastetter, who represents the Grand Traverse Band of Ottawa and Chippewa Indians, told the Advance. “But when you’re dealing with the diminishment of a right reserved by tribes, there ought not to be that balancing test.”
But Rastetter mentioned a different kind of balance in its place carefully deciding what fights to take on. Too broad an assertion of treaty rights could backfire.
“There’s been an effort to try to be careful about what you give a court the chance to decide,” he explained. “If they decide against you, you might not get another bite at the apple. We have to not just have a claim, but we have to go through the pragmatic analysis of how it may work out.”