As Canada invokes 1977 Treaty, tribal citizens point to older treaties affected by Line 5

For nearly five months, the Canadian government has repeatedly submitted court filings and letters to a federal court in the hopes of halting proceedings in State of Michigan v Enbridge — the case which will determine which court will preside over the state’s all-important lawsuit to enforce Gov. Gretchen Whitmer’s Line 5 shutdown order.

At stake is the fate of Enbridge’s 68-year-old oil pipeline, which runs Canadian oil for 645 miles into Michigan’s Upper Peninsula, under the Mackinac Straits and back into Canada near Port Huron in the Thumb area.

With support from Enbridge, the Canadian government has leaned heavily on a 1977 pipeline-related treaty between the two countries that they say holds the authority to pause proceedings until officials from Canada and the United States finish discussing Line 5.

At first, Canadian counsel had submitted letters informing the court that officials from the two countries were in talks related to the 1977 Treaty, but the treaty’s dispute settlement mechanisms had not been formally invoked. Seeing no success there, the Canadian government on Oct. 4 informed the court that the country was formally invoking those mechanisms.

Michigan Attorney General Dana Nessel has opposed these efforts, arguing repeatedly that the agreement has nothing to do with the purely jurisdictional question before the federal judge.

But left out of that conversation are other treaties affected by Line 5, which are hundreds of years old and much broader, like the 1836 Treaty of Washington and others like it that guarantee treaty rights to tribes.

“When Canada invoked the 1977 pipeline treaty, collectively every Indigenous person, every Indigenous ally and attorney was kind of like, ‘Oh, so now you want to talk treaties,’” Bay Mills Tribal Chairperson Whitney Gravelle told the Advance Thursday.

“That’s literally been the attitude from everyone since then. Like, ‘All right, let’s talk treaties then, because we have one, too.’”

In Michigan, there were eight main treaties signed between 1807 and 1842 that ceded Ottawa (Odawa), Chippewa (Ojibwe) and Potawatomi tribal land in modern-day Michigan to the federal government. Perhaps most crucial and most relevant to Line 5 is the 1836 Treaty of Washington, as the nexus of its treaty territory lies at the Straits of Mackinac.

That treaty, signed 185 years ago in Washington, D.C., was an agreement between the United States and representatives of the Odawa and Ojibwe tribes. The Odawa and Ojibwe people at the time agreed to cede an area of nearly 14 million acres of land and 13 million acres of water throughout Michigan’s Upper Peninsula and the northern region of the state’s Lower Peninsula.

In return, the American government guaranteed hunting, fishing and gathering rights to the tribes in those ceded lands — “for as long as the grass grows, the winds blow and the rivers flow,” said Aaron Payment, tribal chair of the Sault Ste. Marie Tribe of Chippewa Indians.

Those rights were defined and confirmed with two consent decrees, which are regularly renegotiated.

“You can see that all of Michigan is Indian land. Every bit of Michigan is ceded territory,” Payment said. “… This treaty predates that treaty that the [Canadian] premier is relying on to try to invoke some kind of protection to allow Line 5 to continue.”

All 12 federally recognized tribes in Michigan are publicly opposed to Enbridge’s Line 5 pipeline and its proposed tunnel-enclosed replacement in the Straits. Indigenous water protectors in the state point to the Canadian oil pipeline as a direct threat to their treaty rights, not just in the Straits but along the entire pipeline route that snakes through ceded treaty land.

Nathan Wright, founder of the Indigenous water protector group MackinawOde and a citizen of the Sault Ste. Marie Tribe, notes that the U.S. Constitution defines treaties made under the authority of the United States as “the supreme law of the land.”

“I interpret this to mean that it supersedes everything else, and I would also argue that the ones that are older have more weight to them,” Wright said.

The Treaty of Washington was written 141 years before the 1977 Treaty between Canada and the United States.

Wright said while there are numerous other treaties at play with tribes in Michigan, the 1836 agreement is especially crucial for tribes because of its broad written protection of tribal rights, and it is most relevant to the Line 5 issue.

“There’s value in the way that treaty was written that protects us and gives us that ability. And that’s supposed to be forever,” Wright said.

“It’s not this old, dead document. It’s living. And we still use that treaty, even today, to fish, to hunt, to gather and to provide for our family,” Gravelle added.

When Whitmer revoked and terminated Enbridge’s 1953 easement with the state in mid-November 2020, citing numerous and incurable violations by the company and ordering the dual Line 5 pipeline to halt operation by May 12, she also cited treaty rights and the concerns of Indigenous citizens in the state.

“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,” Whitmer wrote in her Nov. 13 notice to Enbridge.

“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.”

It was the first time in the pipeline’s history that the state’s administration had officially acknowledged treaty rights as a reason to shut down Line 5, as pointed out by the Resist Line 3 Media Collective.

The collective noted that Enbridge’s newly-completed Line 3 pipeline replacement project in Minnesota also “violates multiple treaties with Indigenous peoples signed in the 1800s.”

In an email Thursday, Enbridge spokesperson Ryan Duffy said the company “supports the tribes’ sovereignty and treaty rights.”

“We support the federal government upholding treaty rights. We support the restoration of treaty rights as well as the acknowledgment of historical reservation boundaries,” Duffy said.

He added “examples” of Enbridge’s support of tribes, including “safety measures” like the proposed tunnel under the Straits, “engaging during the permitting process from the beginning” and having tribal monitors on pre-permitting survey crews and tribal construction monitors during construction.

“I see a lot of media from Enbridge. They say we try to talk to tribes, we respect tribal treaty rights, we adopt the United Nations Declaration on the Rights of Indigenous People. But if you actually read the [the declaration], it talks about free prior and informed consent,” Gravelle said. “‘Consent’ being the main word here.

“Line 5 was put into the water and across the landscape in 1953, and no tribe, to my knowledge, was ever consulted, communicated [with] or made aware that this pipeline was there,” Gravelle continued. “… When we were finally made aware, and we said no, those voices and those decisions from the tribal nations have not been respected.”

Gravelle said the prioritization of the Canada treaty over the much older treaty and similarly relevant treaty with tribes in Michigan is “a reflection of how tribal nations have been treated historically.”

“I do hope that treaties when tribal nations are elevated and talked about and acknowledged more,” she said. “We gave this land and water in exchange — so if these rights are not afforded to us for the rest of time, are you going to give that land and water back?”

Across the northern Michigan border, tribal citizens in Canada also are facing their own difficulties asserting treaty rights with the Canadian government and the crown.

Isaac Murdoch is an Ojibwe artist, water protector and traditional knowledge-keeper from the Fish Clan and Serpent River First Nation, based on the shores of Lake Huron in Ontario about two hours from Sault Ste. Marie.

Murdoch told the Advance Thursday that although they are important to hold up, treaties aren’t necessarily a magic bullet for tribes trying to assert their rights. In Canada, for example, Murdoch says that treaties between the government and First Nation tribes can prove to be a “double-edged sword.”

“When we participate in their system with their documents, then there’s a huge conflict of interest that takes place,” Murdoch said. “Indigenous people will not have a fair playing field when trying to discuss issues of treaty at all, because the people that they’re trying to take to court are the same people that want to do the resource extraction and the same people that made the treaty.

“It’s like, somebody beats you up, and then you go to court and the person that beat you up is the judge,” Murdoch said.

Treaties can also be problematic when the government understands the agreement one way, but the tribes affected sees it another way through elders’ testimony and an oral history of the treaty. Governments like Canada can potentially exploit this discrepancy if the tribes bring them to court on the basis of treaty rights.

Murdoch said First Nation tribes also have numerous treaties with the Canadian government that he feels are relevant to the fight over Line 5, which he characterized as a “thorn in everybody’s side.” The province of Ontario alone is covered by 46 treaties with First Nation communities.

But although many treaty territories in Canada are affected by pipelines, if those like Line 5 are taken to court in the United States, “the Indigenous people in so-called Ontario will not be able to have a voice in that argument, yet they’re directly impacted.”

Wright says he and Murdoch are direct descendants of Shingwaukonse, an Anishinaabe chief who strongly advocated for land-use rights and was an important signatory to the 1850 treaty which established the Garden River First Nation near Sault Ste. Marie.

“Especially in the Line 5 debate, we are at a decision point,” Gravelle said. “Are we going to carve out a future for our children and our children’s children, a future where we respect the relationship that we have with land and water like what you see in our treaties?

“Or are we going to continue, as we have been, carving a future where we will continue to allow fossil fuel companies and infrastructure to inflict irreparable harm on an increasingly inhospitable planet that is suffering from climate change?”