Minnesota tribe invokes treaty rights in fight to stop pipeline

Todd Thompson stood at the end of a handmade wooden pier, some of the planks cracked and bowed. He stared out onto the lake. Under the bright blue sky, a dozen or more fat cumulus clouds cast shadows on the water. Short green stalks of wild rice poked up from the depths, covering the surface like a thick carpet, swaying gently with each passing breeze.

Aspens lined the lake’s edge, and birds sang from their hiding places in the reeds. Mosquitoes whined in their search for fresh blood.

“It might be a good year this year,” said Thompson, referring to the upcoming wild rice harvest. “It don’t look patchy, like it’s been.”

His father, Leonard Thompson, agreed as he made his way to the edge of the pier to stand next to his son and eye the growing green stalks. By fall, the rice would be at least waist high, and when rice harvesting was at its peak, there were up to 500 canoes out on the lake, each harvesting as much as 200 pounds of wild rice per day.

“I would imagine this lake has been riced on for the last two or three thousand years, at least,” said the elder Thompson. “It’s just a part of our identity.”

Leonard Thompson, Todd Thompson’s father, with the sky over Lower Rice Lake reflected in his sunglasses. © Jolene Yazzie for Al Jazeera America
Leonard Thompson, Todd Thompson’s father, with the sky over Lower Rice Lake reflected in his sunglasses. © Jolene Yazzie for Al Jazeera America

But those ancient rice beds face an unsure future: The proposed $2.6 billion Sandpiper crude oil pipeline, if built, will carry petroleum from the Bakken oilfields in North Dakota through Minnesota to refineries in Wisconsin, cutting through the heart of the White Earth Nation’s wild rice beds.

To secure the route, Enbridge Inc., the company overseeing the pipeline, hopes to exercise the power of eminent domain, the right to take land from owners who refuse to sell to them — in this case, the White Earth Nation.

To stop the pipeline, the White Earth Nation is invoking its treaty rights. Building the Sandpiper pipeline, its members say, in addition to possible breaks and spills, would violate their rights to use the land for hunting, fishing or harvesting wild rice — rights established by treaty.

The fundamental divide between Enbridge and the White Earth Nation reflects the increasingly combative debate over oil pipelines and Indian Country, from the Keystone XL to the Prince Rupert in Canada. And on White Earth, the Sandpiper, in some circles, has become a surrogate for a broader fight to protect wild rice, the environment and the Anishinaabe way of life.

“It’s an iron spike through the heart of the wild rice beds,” said Bob Shimek, the executive director of the White Earth Land Recovery Project. “It is an iron spike through the heart of the Anishinaabe and the way of life that wild rice supports. That is what is at stake here.”

The seal of the White Earth Nation hangs in the lobby of the tribal headquarters in Ogema, Minnesota. © Jolene Yazzie for Al Jazeera America
The seal of the White Earth Nation hangs in the lobby of the tribal headquarters in Ogema, Minnesota. © Jolene Yazzie for Al Jazeera America

To understand White Earth’s treaty rights claim, we have to rewind 25 years.

In 1990 the Mille Lacs Band of Chippewa Indians filed suit against Minnesota after numerous tribal citizens were arrested for hunting and fishing off reservation. According to an 1837 treaty with the Chippewa, in exchange for the cession of land, tribal members retained usufructuary rights, entitling them to hunt, fish and gather wild rice on lands they gave up.

In 1990, Minnesota maintained that those rights were extinguished with the signing of an 1855 treaty. After years of court battles, the Supreme Court in 1999 concluded that the Chippewa, including the White Earth Nation, retained usufructuary rights and tribal members could hunt, fish and gather wild rice on lands they ceded.

Tribal attorney Joe Plumer and a map of the 1855 treaty boundaries. © Jolene Yazzie for Al Jazeera America.
Leonard Thompson, Todd Thompson’s father, with the sky over Lower Rice Lake reflected in his sunglasses. © Jolene Yazzie for Al Jazeera America

“Usufructuary rights, through Supreme Court case law, are property rights,” said Joe Plumer an attorney with the White Earth Nation. “They’re property rights that cannot be taken away without just compensation.”

In other words, the building of a pipeline through White Earth’s wild rice stands could have severe effects on tribal members’ ability to harvest — a right guaranteed under the 1837 treaty and upheld by the Supreme Court. The thing about treaties is that they’re the “supreme law of the land.” At least that’s what Article VI of the Constitution says, and without compensation for those rights, White Earth says, the Sandpiper is violating the treaty.

“Those treaties were consummated before Minnesota was a state. They are between the Ojibwe people and the federal government,” said Plumer. “In exchange for our ancestors ceding this territory to the United States, we retained these usufructuary rights.”

While both sides wait for the Minnesota Public Utilities Commission to approve the Sandpiper route, the pipes have already arrived outside the town of Lake George. © Jolene Yazzie for Al Jazeera America
While both sides wait for the Minnesota Public Utilities Commission to approve the Sandpiper route, the pipes have already arrived outside the town of Lake George. © Jolene Yazzie for Al Jazeera America

 

For Enbridge to build the Sandpiper, it must obtain land from people who don’t want to part with it, namely White Earth. That means it has to exercise eminent domain. But first it needs two things: a certificate of need from the Minnesota Public Utilities Commission (PUC), which it obtained earlier this month, and a route permit, which the commission has not decided on yet.

For Enbridge and White Earth, the next step is to wait for the PUC to issue an order on the route permit.

“Any party would have the ability to ask for reconsideration of that order once it is issued, and based upon that petition, if one is filed, the commission could reconsider that,” said the PUC’s Dan Wolf. “If the reconsideration request by a party is not granted, then they would have the ability to appeal that decision to the Minnesota Court of Appeals.”

According to Enbridge’s website, 94 percent of private landowners along the Sandpiper’s proposed route have granted easements for the pipeline. It will be 616 miles long. It will cost approximately $2.6 billion. It will provide about $25 million in property tax revenue to the state in its first year of operation. It will create 1,500 construction jobs. It will be safe and reliable.

“We welcome the opportunity to have a dialogue with all stakeholders along our current and proposed project routes,” said Enbridge in an emailed statement. “We are open to meeting and consulting with all stakeholders, and in fact, we have invited every affected tribal government to meet with us. Most but not all have chosen to engage in those discussions. We look forward to continuing to engage with the tribes as well as all of the people who live, work and play in the areas where we operate.”

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Todd Thompson holding a set of harvest knockers, poles used to knock wild rice off the stalk and into harvesters’ boats. White Earth Nation members fear a proposed new pipeline will destroy the rice beds they have depended on for centuries. © Jolene Yazzie for Al Jazeera America

Enbridge has a history in the region. In 2010 about 843,000 gallons of oil from one of its pipelinesspilled into the Kalamazoo River near Marshall, Michigan. In 2002 near Cohasset, Minnesota, 6,000 barrels of oil spilled into the area’s marshlands. And in 2010 nearly 3,000 barrels leaked from an Enbridge pipeline near Neche, North Dakota. Nearly a dozen other incidents have been documented.

“This is all wetland in this country. All the water, the groundwater and the surface water, is very closely connected,” said Plumer. “You can’t segregate a spill. That’s why it’s so critical. They couldn’t have picked a worse location for this.”

There’s also concern about an influx of oil workers. In the Bakken oilfields, drug use is up, human trafficking has become a pervasive issue, domestic violence incidents have spiked, worker fatality rates are through the roof, and “man camps” have become a way of life.

“It’s not to say that all of the pipeline workers are all bad,” said Lisa Brunner, the executive director of Sacred Spirits, an organization that combats sexual and domestic violence on White Earth. “But history has proven time and time again that anytime you have a mass convergence of that many men coming in, you have predator economics.”

According to her, White Earth lacks the law enforcement infrastructure to deal with a population boom related to oil and gas work as well as the crime that often accompanies it.

“When we look at the level of violence that’s sneaking up on us, there is nothing our tribe can do, and they know it,” said Brunner. “There is nothing that these corporations are doing to check their men, to hold them accountable. Where does that leave the people, then?”

Leonard Thompson dips his hands into a bag of wild rice, which is strongly tied to the life of the White Earth Nation, going back to an Ojibwe prophecy that told them to go “where the food grows upon the waters.” © Jolene Yazzie for Al Jazeera America
Leonard Thompson dips his hands into a bag of wild rice, which is strongly tied to the life of the White Earth Nation, going back to an Ojibwe prophecy that told them to go “where the food grows upon the waters.” © Jolene Yazzie for Al Jazeera America

“You can bake it. You can broil it. My favorite is baking it with chicken, pork or beef,” said Leonard Thompson as he dipped his hands into a giant bag of wild rice and held it up to inspect. “The old-time people used to put maple sugar in there, dried cranberries. It was like a super breakfast cereal.”

“It’s an all-around food,” said Todd Thompson. “You can even grind it up into a flour. People make pancakes. They make breads with it.”

Ojibwe oral history tells of a prophecy that brought the Ojibwe to Minnesota, a land “where the food grows upon the waters.” Since then, that food — wild rice — has become intertwined with the values, cultural beliefs, social protocols and ceremonial customs of the nation. Even the smallest threat would have far-reaching consequences.

While White Earth and Enbridge wait to see if the PUC approves the route, Enbridge has already begun preparations for construction. Only 45 minutes from its intended route, outside the town of Lake George, the pipes have already been delivered: rows and stacks of giant pipes just waiting to be connected.

“This is one of the biggest parts of our lives right here,” said Leonard Thompson as he let the long brown rice slide through his fingers and back into the bag. “The biggest part of our lives.”

“It’s just been ingrained in us,” said Todd Thompson. “It’s the food that feeds our spirit.”

Originally published June 24, 2015 on Al Jazeera America.

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tristan ahtone

Tristan Ahtone is an award winning journalist and member of the Kiowa Tribe of Oklahoma. Born in Arizona and raised across the United States, he was educated at the Institute of American Indian Arts and the Columbia School of Journalism. He lives in Albuquerque, New Mexico.

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