Enbridge Line 93

Mary Annette Pember
Indian Country Today

ANISHINAABE LANDS — Line 3 is dead. Long live Line 93.

Enbridge’s controversial Line 3 construction project is complete.

“The Line 3 replacement project/Line 93 came into service on Friday, October 1, as expected through N(orth) Dakota and Minnesota,” Juli Kellner, communications specialist for Enbridge, said in an email to Indian Country Today.

And with that, Line 3 will be deactivated, according to Kellner.

Enbridge series pipeline - Enbridge logo

After nearly 8 years of Indigenous and citizen opposition that saw numerous protests and arrests in Minnesota and Wisconsin, and a string of state, federal and tribal court filings, it appears that the corporate giant has won.

Not so, say Indigenous and non-Native water protectors.

As clean-up begins and more construction accidents come to light, water protectors are claiming victory on a number of fronts.

Members of Indigenous advocacy organizations such as Honor the Earth and the Indigenous Environmental Network as well as tribal grassroots pipeline opponents say that the fight against Line 3 helped focus the world’s attention on what they describe as an untenable corporate push to build fossil fuel infrastructure projects at the expense of the environment.

“Line 3 is a crime against the environment and Indigenous rights, waters and lands and it marks the end of the tar sands era — but not the resistance to it,” said Winona LaDuke, executive director of Honor the Earth.

LaDuke, a citizen of the White Earth Ojibwe Nation, praised the actions of water protectors opposing the pipeline.

“Your brave efforts have reshaped the world’s views on the climate crisis that we are in,” she said.

Signs near the Firelight water protector camp along country Highway 2 near Bagley, Minnesota, on Oct. 4, 2021. (Photo by Mary Annette Pember/Indian Country Today)

Signs near the Firelight water protector camp along country Highway 2 near Bagley, Minnesota, on Oct. 4, 2021. (Photo by Mary Annette Pember/Indian Country Today)

On Oct. 11, Indigenous Peoples’ Day, activists kicked off a week of protests calling out President Joe Biden for failing to stop Line 3, and for failing to meet his promises on addressing climate change and protecting Indigenous treaty rights and lands. On Oct. 14, dozens of Indigenous leaders held a sit-in at the Interior Department in Washington, D.C., in an effort to stop extractive fossil fuel industry projects such as Line 3.

The Indigenous Environmental Network issued a statement questioning Enbridge’s rosy outlook on the project.

“Although Enbridge is pushing the message that Line 3 is a done deal and that they followed all the rules and regulations, we can see even at this late date the continuing harm to our lands and waters,” the statement said. “There have been spills, frac-outs and pierced aquifers even to this day.”

Enbridge’s decision to change the name of Line 3 to Line 93 further confirms what water protectors knew all along, said Taysha Martineau, founder of Camp Migizi, a camp for water protectors opposing Line 3.

“We stated from the beginning that this was an entirely new pipeline project,” said Martineau, a citizen of the Fond du Lac Band of Ojibwe.

Negative fallout

Although Enbridge has repeatedly framed the pipeline construction as a safety-based replacement project for the 32-inch Line 3, Line 93 is 34 inches wide, allowing it to carry tar sands oil that Line 3 could not.

Leaders of the White Earth and Red Lake Bands of Ojibwe and Line 3 opponents insist that the negative fallout from pipeline construction continues.

Frank Bibeau, attorney for and citizen of the White Earth Band of Ojibwe, said the pipeline construction exacerbated already low water levels and endangered the health of manoomin or wild rice.

In a unique rights of nature lawsuit filed in White Earth tribal court, tribal citizens accuse the Minnesota Department of Natural Resources of failing to protect the state’s fresh water by allowing Enbridge to pump up to five million gallons of additional water from construction trenches. That case is ongoing.

In January, Enbridge construction crews accidentally pierced an artesian aquifer near Clearbrook, Minnesota, causing the aquifer to lose about 24 million gallons of groundwater. The Department of Natural Resources learned about the accident in June when independent monitors reported seeing water pooling in ditches, according to a report issued by the agency.

“Enbridge began work at the Clearbrook Terminal site in early 2021 but did not follow the construction plans it provided to the DNR,” according to the report.

Enbridge erected a protective boom, shown here on Oct. 4, 2021,  around a frac-out of drilling fluid along the Mississippi River near Solway, Minnesota. (Photo by Mary Annette Pember/Indian Country Today)

Enbridge erected a protective boom, shown here on Oct. 4, 2021, around a frac-out of drilling fluid along the Mississippi River near Solway, Minnesota. (Photo by Mary Annette Pember/Indian Country Today)

In September, the agency ordered Enbridge to pay $3.32 million in penalties, including $300,000 to pay for loss of groundwater as well as create a restoration plan to stop the groundwater flow within 30 days. The agency is also investigating two additional sites of artesian aquifer breaches by the company, but did not disclose the locations.

The Department of Natural Resources has referred the breaches to the Clearwater County attorney where the company could face criminal charges.

On Oct. 17, the agency reported that Enbridge failed to meet a deadline to clean up the ruptured aquifer near Clearbrook and announced that Enbridge must pay compensation for the additional time it takes to stop the flow of groundwater.

Kellner said the company is working with state and local officials.

“Enbridge is fully cooperating with the Minnesota DNR in correcting uncontrolled groundwater flows at Clearbrook and is working with the DNR as two other locations are being evaluated,” she wrote.

Enbridge tanks sit at the company's terminal in Superior, Wisconsin, on Oct. 8, 2021, the destination of petroleum products flowing through the newly completed Line 93. (Photo by Mary Annette Pember/Indian Country Today)

Enbridge tanks sit at the company’s terminal in Superior, Wisconsin, on Oct. 8, 2021, the destination of petroleum products flowing through the newly completed Line 93. (Photo by Mary Annette Pember/Indian Country Today)

LaDuke called the company’s failure to meet the deadline alarming.

“If Enbridge can’t meet basic safety requirements, they should not be allowed to operate a pipeline,” she said. “It doesn’t bode well for the future.”

In August, the Minnesota Public Pollution Control Agency reported that Enbridge created 28 spills of drilling mud during the summer. The agency confirmed the spills in response to a letter from Minnesota Democratic Farm Labor Party lawmakers demanding an accurate account of the spills.

“Our friends have reported frac-outs further down from the headwaters of the Mississippi,” Bibeau said.

“We are looking into doing a thermal imaging flight over the pipeline to see where all the damage is because we don’t think the DNR or the Public Pollution Control Agency is actually investigating these locations,” he said.

Earlier this month, Ron Turney of the Indigenous Environmental Network and members of Honor the Earth took Indian Country Today via canoe to an Enbridge frac-out location near the headwaters of the Mississippi River.

Turney, a citizen of the White Earth Band of Ojibwe, has been using a drone camera to monitor the pipeline. The location, near Solway, Minnesota, is not accessible on foot or visible from the road. A large boom surrounded the area where opaque white material appeared to rest on top of the water.

Igniting a movement

On Oct. 2, Honor the Earth sponsored a celebration on Madeline Island in Wisconsin of traditional Ojibwe subsistence food and activities as a means to celebrate water protector victories fighting Line 3.

The event coincided with Treaty Day, a commemoration of the signing of the Treaty of 1854 at the town of LaPointe on Madeline Island. In this treaty, the Ojibwe established reservations in their traditional homelands and retained rights to hunt, fish and gather.

Water protector celebration

Water protectors gathered at Madeline Island in Wisconsin in October 2021.

enbridgecomplete8

4Gallery4 Images

Madeline Island or Mooningwanekaaning, “home of the yellow-breasted flicker,” is considered a sacred place by Ojibwe and the birthplace of the tribe’s traditional religion.

About 150 people gathered to share traditional activities such as butchering sturgeon, parching wild rice, feasting, dancing, singing and playing lacrosse.

“We used to survive on this island,” said Paul DeMain, a citizen of the Ojibwe and Oneida tribes and an Honor the Earth board member who was among those at the celebration. “To me, it’s a productive fortress, a place of healing.”

DeMain said water protectors were bound to lose in the massively unequal fight with a global corporate giant such as Enbridge. Among the victories, however, was that the fight focused the world’s attention on the impact of ongoing reliance on fossil fuel on climate change and the preservation of the Earth.

“We came here to celebrate our victories over the fossil fuel industry, our survival and to heal our trauma of watching our people get arrested, harassed, beaten and hurt,” DeMain said.

“We came here to show we could feast in camaraderie with the rich, poor, Indigenous and non-Indigenous and work on forging a path ahead.”

This article contains material from The Associated Press. 

Indian Country Today - bridge logo

Bears Ears

Lindsay Whitehurst
Associated Press

SALT LAKE CITY — President Joe Biden will expand two sprawling national monuments in Utah that have been at the center of a public lands tug-of-war that has played out over three presidential administrations, the state’s governor said Thursday.

Gov. Spencer Cox, a Republican, released a statement expressing disappointment in a decision by the administration to expand Bears Ears National Monuments and Grand Staircase-Escalante, which were downsized significantly under President Donald Trump. 

They cover vast expanses of southern Utah where red rocks reveal petroglyphs and cliff dwellings and distinctive twin buttes bulge from a grassy valley. The Trump administration cut Bears Ears, on lands considered sacred to Native American tribes, by 85 percent and slashed Grand Staircase-Escalante by nearly half. 

Cox’s statement did not include specifics how much of the monuments Biden plans to restore, and the White House and the U.S. Interior Department declined immediate comment. 

Cox noted he had offered to work with the administration on a legislative solution.

“The president’s decision to enlarge the monuments again is a tragic missed opportunity — it fails to provide certainty as well as the funding for law enforcement, research, and other protections which the monuments need and which only Congressional action can offer,” he said in the statement released with other state leaders. 

Hopi Chairman Timothy L. Nuvangyaoma said he is “happy” and “grateful for the advocacy of all those related to protecting Bears Ears and for the Hopi tribe” because it means a lot to the clan memberships. 

“For Hopi, this is a significant step forward and the Biden administration did make some commitments to listen to Native America and Biden’s actions does prove that it is happening. We do need to protect these sacred sites that not only the Hopi tribe but other tribes find significant within their history.”

The chairman said he and the vice chairman will be headed to Washington, D.C. 

Interior Secretary Deb Haaland, the first Indigenous Cabinet secretary, traveled to Utah in April to tour the area before preparing a formal recommendation to President Biden. 

Haaland, Laguna Pueblo, visited the monuments, becoming the latest federal official to step into what has been a years-long public lands controversy. https://platform.twitter.com/embed/Tweet.html?dnt=false&embedId=twitter-widget-0&features=eyJ0ZndfZXhwZXJpbWVudHNfY29va2llX2V4cGlyYXRpb24iOnsiYnVja2V0IjoxMjA5NjAwLCJ2ZXJzaW9uIjpudWxsfSwidGZ3X2hvcml6b25fdHdlZXRfZW1iZWRfOTU1NSI6eyJidWNrZXQiOiJodGUiLCJ2ZXJzaW9uIjpudWxsfSwidGZ3X3NwYWNlX2NhcmQiOnsiYnVja2V0Ijoib2ZmIiwidmVyc2lvbiI6bnVsbH19&frame=false&hideCard=false&hideThread=false&id=1380219354378342404&lang=en&origin=https%3A%2F%2Findiancountrytoday.com%2Fnews%2Fjoe-biden-to-expand-2-utah-national-monuments&sessionId=b31246f3cd0f7ee7df9267183db6a84aa51009f5&theme=light&widgetsVersion=fcb1942%3A1632982954711&width=550px

Utah Sen. Mitt Romney also criticized Biden by saying in a tweet Thursday that he “squandered the opportunity to build consensus” and find a permanent solution for the monuments.

“Yet again, Utah’s national monuments are being used as a political football between administrations,” Romney said. “The decision to re-expand the boundaries of Bears Ears and Grand Staircase-Escalante is a devastating blow to our state, local and tribal leaders and our delegation … today’s “winner take all” mentality moved us further away from that goal.”

Jennifer Rokala, executive director of the Center for Western Priorities, applauded Biden’s decision and said she hopes it marks an initial step toward his goal of conserving at least 30 percent of U.S. lands and ocean by 2030.

“Thank you, President Biden,” Rokala said in a statement. “You have listened to Indigenous tribes and the American people and ensured these landscapes will be protected for generations to come.”https://platform.twitter.com/embed/Tweet.html?dnt=false&embedId=twitter-widget-1&features=eyJ0ZndfZXhwZXJpbWVudHNfY29va2llX2V4cGlyYXRpb24iOnsiYnVja2V0IjoxMjA5NjAwLCJ2ZXJzaW9uIjpudWxsfSwidGZ3X2hvcml6b25fdHdlZXRfZW1iZWRfOTU1NSI6eyJidWNrZXQiOiJodGUiLCJ2ZXJzaW9uIjpudWxsfSwidGZ3X3NwYWNlX2NhcmQiOnsiYnVja2V0Ijoib2ZmIiwidmVyc2lvbiI6bnVsbH19&frame=false&hideCard=false&hideThread=false&id=1446238172774637571&lang=en&origin=https%3A%2F%2Findiancountrytoday.com%2Fnews%2Fjoe-biden-to-expand-2-utah-national-monuments&sessionId=b31246f3cd0f7ee7df9267183db6a84aa51009f5&theme=light&widgetsVersion=fcb1942%3A1632982954711&width=550px

Trump’s cuts ironically increased the national attention to Bears Ears, Rokala said. She called on the federal government to increase funding to manage the landscape and handle growing crowds.

Interior Secretary Deb Haaland, the first Indigenous Cabinet secretary, traveled to Utah in April to visit the monuments, becoming the latest federal official to step into what has been a yearslong public lands battle.

Former President Barack Obama proclaimed Bears Ears a national monument in 2016. The site was the first to receive the designation at the specific request of tribes.

The Bears Ears buttes, which overlook a grassy valley, are considered a place of worship for many tribes, according to Pat Gonzales-Rogers, executive director of the Bears Ears Inter-Tribal Coalition. The group incudes the Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Pueblo of Zuni and Ute Indian Tribe.

The Trump administration’s reductions to Bears Ears and Grand Staircase-Escalante paved the way for potential coal mining and oil and gas drilling on lands that were previously off-limits. However, activity was limited because of market forces.

Conservative state leaders considered the size of both monuments U.S. government overreach and applauded the reductions.

Environmental, tribal, paleontological and outdoor recreation organizations sued to restore the monuments’ original boundaries, arguing presidents lack legal authority to change monuments their predecessors created. Meanwhile, Republicans argued Democratic presidents have misused the Antiquities Act signed by President Theodore Roosevelt to designate monuments beyond what’s necessary to protect archaeological and cultural resources.

The administration has said the decision to review the monuments was part of an expansive plan to tackle climate change and reverse the Trump administration’s “harmful” policies.

ICT logo bridge

Indian Country Today contributed to this report.

Environmental Loss

https://us.yahoo.com/news/alaskas-vanishing-salmon-push-yukon-150805244.html

APTOPIX Yukon River Disappearing Salmon Michael Williams scans the shoreline for moose while traveling up the Yukon River on Tuesday, Sept. 14, 2021, near Stevens Village, Alaska. For the first time in memory, both king and chum salmon have dwindled to almost nothing and the state has banned salmon fishing on the Yukon. The remote communities that dot the river and live off its bounty are desperate and doubling down on moose and caribou hunts in the waning days of fall. (AP Photo/Nathan Howard)

NATHAN HOWARD and GILLIAN FLACCUSSat, October 2, 2021, 9:08 AM

STEVENS VILLAGE, Alaska (AP) — In a normal year, the smokehouses and drying racks that Alaska Natives use to prepare salmon to tide them through the winter would be heavy with fish meat, the fruits of a summer spent fishing on the Yukon River like generations before them.

This year, there are no fish. For the first time in memory, both king and chum salmon have dwindled to almost nothing and the state has banned salmon fishing on the Yukon, even the subsistence harvests that Alaska Natives rely on to fill their freezers and pantries for winter. The remote communities that dot the river and live off its bounty — far from road systems and easy, affordable shopping — are desperate and doubling down on moose and caribou hunts in the waning days of fall.

“Nobody has fish in their freezer right now. Nobody,” said Giovanna Stevens, 38, a member of the Stevens Village tribe who grew up harvesting salmon at her family’s fish camp. “We have to fill that void quickly before winter gets here.”

Opinions on what led to the catastrophe vary, but those studying it generally agree human-caused climate change is playing a role as the river and the Bering Sea warm, altering the food chain in ways that aren’t yet fully understood. Many believe commercial trawling operations that scoop up wild salmon along with their intended catch, as well as competition from hatchery-raised salmon in the ocean, have compounded global warming’s effects on one of North America’s longest rivers.

The assumption that salmon that aren’t fished make it back to their native river to lay eggs may no longer hold up because of changes in both the ocean and river environments, said Stephanie Quinn-Davidson, who has worked on Yukon River salmon issues for a decade and is the Alaska Venture Fund’s program director for fisheries and communities.

King, or chinook, salmon have been in decline for more than a decade, but chum salmon were more plentiful until last year. This year, summer chum numbers plummeted and numbers of fall chum — which travel farther upriver — are dangerously low.

“Everyone wants to know, ‘What is the one smoking gun? What is the one thing we can point to and stop?’” she said of the collapse. “People are reluctant to point to climate change because there isn’t a clear solution … but it’s probably the biggest factor here.”

Many Alaska Native communities are outraged they are paying the price for generations of practices beyond their control that have caused climate change — and many feel state and federal authorities aren’t doing enough to bring Indigenous voices to the table. The scarcity has made raw strong emotions about who should have the right to fish in a state that supplies the world with salmon, and underscores the powerlessness many Alaska Natives feel as traditional resources dwindle.

The nearly 2,000-mile-long (3,200-kilometer) Yukon River starts in British Columbia and drains an area larger than Texas in both Canada and Alaska as it cuts through the lands of Athabascan, Yup’ik and other tribes.

The crisis is affecting both subsistence fishing in far-flung outposts and fish processing operations that employ tribal members in communities along the lower Yukon and its tributaries.

“In the tribal villages, our people are livid. They’re extremely angry that we are getting penalized for what others are doing,” said P.J. Simon, chairman and chief of the Tanana Chiefs Conference, a consortium of 42 tribal villages in the Alaska interior. “As Alaska Natives, we have a right to this resource. We have a right to have a say in how things are drawn up and divvied up.”

More than a half-dozen Alaska Native groups have petitioned for federal aid, and they want the state’s federal delegation to hold a hearing in Alaska on the salmon crisis. The groups also seek federal funding for more collaborative research on effects that ocean changes are having on returning salmon.

Citing the warming ocean, Republican Gov. Mike Dunleavy requested a federal disaster declaration for the salmon fishery this month and has helped coordinate airlifts of about 90,000 pounds (41,000 kilograms) of fish to needy villages. The salmon crisis is one of the governor’s top priorities, said Rex Rock Jr., Dunleavy’s advisor for rural affairs and Alaska Native economic development.

That’s done little to appease remote villages that are dependent on salmon to get through winter, when snow paralyzes the landscape and temperatures can dip to minus 20 degrees Fahrenheit (minus 29 C) or lower.

Families traditionally spend the summer at fish camps using nets and fish wheels to snag adult salmon as they migrate inland from the ocean to the place where they hatched so they can spawn. The salmon is prepared for storage a variety of ways: dried for jerky, cut into fillets that are frozen, canned in half-pint jars or preserved in wooden barrels with salt.

Without those options, communities are under intense pressure to find other protein sources. In the Alaska interior, the nearest road system is often dozens of miles away, and it can take hours by boat, snow machine or even airplane to reach a grocery store.

Store-bought food is prohibitively expensive for many: A gallon (3.8 liters) of milk can cost nearly $10, and a pound of steak was recently $34 in Kaltag, an interior village about 328 air miles (528 kilometers) from Fairbanks. A surge in COVID-19 cases that has disproportionately hit Alaska Natives has also made many hesitant to venture far from home.

Instead, villages sent out extra hunting parties during the fall moose season and are looking to the upcoming caribou season to meet their needs. Those who can’t hunt themselves rely on others to share their meat.

“We have to watch our people because there will be some who will have no food about midyear,” said Christina Semaken, a 63-year-old grandmother who lives in Kaltag, an Alaska interior town of fewer than 100 people. “We can’t afford to buy that beef or chicken.”

Semaken hopes to fish next year, but whether the salmon will come back remains unknown.

Tribal advocates want more genetic testing on salmon harvested from fishing grounds in Alaska waters to make sure that commercial fisheries aren’t intercepting wild Yukon River salmon. They also want more fish-tracking sonar on the river to ensure an accurate count of the salmon that escape harvest and make it back to the river’s Canadian headwaters.

Yet changes in the ocean itself might ultimately determine the salmon’s fate.

The Bering Sea, where the river meets the ocean, had unprecedented ice loss in recent years, and its water temperatures are rising. Those shifts are throwing off the timing of the plankton bloom and the distribution of small invertebrates that the fish eat, creating potential chaos in the food chain that’s still being studied, said Kate Howard, a fisheries scientist with the Alaska Department of Fish and Game. Researchers have also documented warming temperatures in the river that are unhealthy for salmon, she said.

Because salmon spend time in both rivers and the ocean during their unique life cycle, it’s hard to pin down exactly where these rapid environmental changes are most affecting them — but it’s increasingly clear that overfishing is not the only culprit, Howard said.

“When you dig into all the available data for Yukon River salmon,” she said, “it’s hard to explain it all unless you consider climate change.”

Alaska Natives, meanwhile, are left scrambling to fill a hole in their diet — and in centuries of tradition built around salmon.

On a recent fall day, a small hunting party zoomed along the Yukon River by motorboat, scanning the shoreline for signs of moose. After three days, the group had killed two moose, enough to provide meat for seven families, or about 50 people, for roughly a month in their small community of Stevens Village.

At the end of a long day, they butchered the animals as the Northern Lights blazed a vibrant green across the sky, their headlamps piercing the inky darkness.

The makeshift camp, miles from any road, would normally host several dozen families harvesting salmon, sharing meals and teaching children how to fish. On this day, it was eerily quiet.

“I don’t really think that there is any kind of bell out there that you can ring loud enough to try to explain that type of connection,” said Ben Stevens, whose ancestors founded Stevens Village. “Salmon, to us, is life. Where can you go beyond that?”

Line 3

https://indiancountrytoday.com/news/line-3-replacement-complete-oil-will-flow-soon

We just cannot stop with the craziness……

Indian Country Today

A controversial pipeline project in northern Minnesota is complete and oil is scheduled to start flowing this week.

Enbridge’s Line 3 pipeline project will carry oil as soon as Friday despite months-long protests against it. The Canadian-based company’s president and CEO, Al Monaco, said in a statement that the pipeline “will soon deliver the low-cost and reliable energy that people depend on every day.”

The project was completed despite stiff opposition from tribes, environmentalists and others who argued that the 1,097-mile pipeline — including the 337-mile segment across Minnesota — would violate treaty rights, worsen climate change and risk spills in waters where Native Americans harvest wild rice.

It will carry oil from Alberta’s tar sands, a heavier crude that consumes more energy and generates more carbon dioxide in the refining process than lighter oil.

(Follow ICT’s Enbridge coverage: A Pipeline Runs Through It)

The Indigenous Environmental Network said in a statement that the fight to stop Line 3 is “far from over, it has just shifted gears.”

“Do not think we are going quietly into the night, we will continue to stand on the frontlines until every last tar sands pipeline is shut down and Indigenous communities are no longer targeted but our right to consent or denial is respected,” the statement read. https://platform.twitter.com/embed/Tweet.html?dnt=false&embedId=twitter-widget-0&features=eyJ0ZndfZXhwZXJpbWVudHNfY29va2llX2V4cGlyYXRpb24iOnsiYnVja2V0IjoxMjA5NjAwLCJ2ZXJzaW9uIjpudWxsfSwidGZ3X2hvcml6b25fdHdlZXRfZW1iZWRfOTU1NSI6eyJidWNrZXQiOiJodGUiLCJ2ZXJzaW9uIjpudWxsfSwidGZ3X3NwYWNlX2NhcmQiOnsiYnVja2V0Ijoib2ZmIiwidmVyc2lvbiI6bnVsbH0sInRmd192ZGxfY2hpcnBfMTI3OTQiOnsiYnVja2V0IjoidmRsX2FuZF9jaGlycCIsInZlcnNpb24iOjN9fQ%3D%3D&frame=false&hideCard=false&hideThread=false&id=1443257631909552131&lang=en&origin=https%3A%2F%2Findiancountrytoday.com%2Fnews%2Fline-3-replacement-complete-oil-will-flow-soon&sessionId=e83d7d2c8dcbe577a26546109a1b478af7a8df93&theme=light&widgetsVersion=1890d59c%3A1627936082797&width=550px

 Winona LaDuke, a citizen of the White Earth Band of Anishinaabeg and executive director of Honor the Earth, vowed to continue the opposition.

“Line 3 is a crime against the environment and Indigenous rights, waters and lands, and it marks the end of the tar sands era — but not the end of the resistance,” she said.https://platform.twitter.com/embed/Tweet.html?dnt=false&embedId=twitter-widget-1&features=eyJ0ZndfZXhwZXJpbWVudHNfY29va2llX2V4cGlyYXRpb24iOnsiYnVja2V0IjoxMjA5NjAwLCJ2ZXJzaW9uIjpudWxsfSwidGZ3X2hvcml6b25fdHdlZXRfZW1iZWRfOTU1NSI6eyJidWNrZXQiOiJodGUiLCJ2ZXJzaW9uIjpudWxsfSwidGZ3X3NwYWNlX2NhcmQiOnsiYnVja2V0Ijoib2ZmIiwidmVyc2lvbiI6bnVsbH0sInRmd192ZGxfY2hpcnBfMTI3OTQiOnsiYnVja2V0IjoidmRsX2FuZF9jaGlycCIsInZlcnNpb24iOjN9fQ%3D%3D&frame=false&hideCard=false&hideThread=false&id=1443255575689695233&lang=en&origin=https%3A%2F%2Findiancountrytoday.com%2Fnews%2Fline-3-replacement-complete-oil-will-flow-soon&sessionId=e83d7d2c8dcbe577a26546109a1b478af7a8df93&theme=light&widgetsVersion=1890d59c%3A1627936082797&width=550px

 In a statement, Camp Migizi promised to remain an open camp and to disrupt and stop pipeline work. More than 900 people have been arrested or ticketed at protests along the route since construction began in December.

“We ask that you remember us, as we will still be here, fighting to protect all that is sacred, even if they build line 3,” read the statement.. “Our community that we have built here will still remain, and we ask that you remember that just like all of the Indigenous communities we have come from we are still here, learning, fighting, and healing.”

The main remaining tasks are cleanup and restoration along the route, said Leo Golden, an Enbridge vice president in charge of the project. Some parts have already been restored with crops and native grasses growing on them, he said. But construction mats still need to be removed from wetlands and other cleanup work will continue through next summer.

Golden said officials do not expect to get the final sign-offs from landowners along the route until next summer.

Enbridge said the project was necessary to replace a deteriorating pipeline built in the 1960s, which could carry only half its original volume of oil, and to ensure the reliable delivery of crude to U.S. refineries. Enbridge expects to start running the pipeline at its full capacity of 760,000 barrels per day in mid-October.

Line 3 starts in Alberta, Canada, and clips a corner of North Dakota before crossing Minnesota en route to Enbridge’s terminal in Superior, Wisconsin. The Canadian, North Dakota and Wisconsin segments were finished earlier and the Canadian and Wisconsin legs are already in service.

Water protectors tour an Enbridge Line 3 construction site near Park Rapids, Minnesota, on June 6, 2021. (Photo by Mary Annette Pember/Indian Country Today)

Water protectors tour an Enbridge Line 3 construction site near Park Rapids, Minnesota, on June 6, 2021. (Photo by Mary Annette Pember/Indian Country Today)

The process of filling the line starts in North Dakota on Friday, Golden said. Enbridge puts the cost at $5.3 billion Canadian dollars for the Canadian section and $4 billion U.S. dollars for the work in the U.S.

Opponents have challenged the pipeline’s permits in court to no avail so far. They’ve also unsuccessfully sought to persuade Biden, who canceled a key permit for the Keystone XL pipeline soon after taking office, to intervene.

(Related: ‘Rights of nature’ cases could bolster treaty guarantees)

A challenge is still pending in federal court to a permit granted by the U.S. Army Corps of Engineers, but that case didn’t block construction. Opponents can still ask the state Supreme Court to review a clean water certification granted by the Minnesota Pollution Control Agency.

Also, a novel “rights of nature” lawsuit is pending in the White Earth Ojibwe tribal court. It names Manoomin, or wild rice, as one of the plaintiffs. The Minnesota Department of Natural Resources has asked a federal appeals court to block the case.

ICT logo bridge

The Associated Press contributed to this reportA Pipeline Runs Through ItEnbridge, Pipeline, Protest, Line 3Line 3

Climate Change

https://indiancountrytoday.com/news/drastic-changes-sea-ice-levels-affecting-seal-hunting

Meghan Sullivan
Indian Country Today

The first time Inupiaq elder Bobby Schaeffer was old enough to join the community hunt for ugruk, or bearded seal, his dad taught him a critical lesson: always be observant, and always look at the whole picture.

Schaeffer was only 14 then, but he never forgot this advice. He thought of it every spring when he ventured out on to the glacial waters of Alaska’s northwest coast, navigating ice fields and powerful currents, to reach the resting ugruk.

He also thought of it as he began to notice unusual changes in the sea, ones that threatened to interrupt the thousand-year-old Inupiaq tradition that he looked forward to each year.

Decades after his first hunt, Schaeffer’s observations have become a key part of a recently released research project about climate change’s impact on the regional ugruk. The study revealed an unignorable trend: Kotzebue’s seal hunting season has shrunk about one day per year over the last 17 years, primarily due to a decline in sea ice.

It confirmed what Schaeffer and other Kotzebue elders had already suspected.

“We started noticing drastic changes from the time we normally hunt — changes from each decade, starting in the 60s through the 2000s,” Schaeffer said. His village, Kotzebue, sits on the top northwest of Alaska’s Arctic coastline. With a population of just over 3,000 people, it’s considered a hub for other, smaller villages in the region.

A Kotzebue hunter looks out on the sound. 

A Kotzebue hunter looks out on the sound. 

Photo courtesy of University of Alaska Fairbanks, 2021.

The findings were part of the Ikaagvik Sikukun project, a collaborative effort between University of Alaska in Fairbanks scientists, Inupiat elders, and Kotzebue hunters. Over the course of one and a half years, the team used state of the art satellite imagery, local observations, and traditional Indigenous knowledge to quantify shifts in the surrounding environment.

The combined data determined that sea ice breaks up approximately 22 days earlier than it did in the first years of the study, leading to a shortened hunting season.

It’s a noteworthy development in a region known for its frozen coasts and wintery climate. Like many systems in the area, ugruk hunting is closely linked to a season’s ice conditions. In spring, ugruk follow the melting Chukchi Sea ice edge north towards the Kotzebue Sound. Once there, they rest on floating ice chunks, known as floes, and feed off the area’s abundant fish, shrimp and clams. This is when those in Kotzebue begin their annual hunt.

“We learned from our Kotzebue research partners that hunting ugruk is actually like hunting the right kind of ice,” said Donna Hauser, a marine mammal biologist at the university’s International Arctic Research Center and co-leader of the research project.

The village has already begun adapting to the new conditions. So far, it has mostly affected the hunting process rather than the harvest’s success. The lack of ice means less intensive journeys, and quicker, more frequent trips. The limited habitat also causes seals to gather closer together, making them easier to track and hunt. But while the shorter season hasn’t wiped out the seal harvest, the rapid shift still leaves troubling questions for the coming years.

“Hunters seem to have compensated for the reductions in the amount of time they can hunt ugruk. However, it’s also possible to imagine a future scenario where ice is farther from shore, hunting requires more searching, possibly in big stretches of more dangerous open water, and could result in reduced success in the future,” Hauser said.

Bearded seals sitting on the ice edge in Kotzebue Sound.

Bearded seals sitting on the ice edge in Kotzebue Sound.

Photo courtesy of Jessie Lindsay, NMFS MMPA Permit No. 19309, 2021

“The Arctic works best when it’s cold. The colder, the better. Because everything’s adapted for that, including the opportunities that people need to have for hunting,” said Alex Whiting, Inupiaq, who is the Director of Kotzebue’s Environmental Program.

The ugruk are only a part of the equation. In the interconnected ecosystem of the Arctic, one small adjustment can throw the whole food chain off balance. Schaeffer has also noticed changes in erosion, shellfish, whales, fish, and birds. With less to feed on, the ugruk are skinnier, and therefore provide for fewer families.

“​​It’s expected to continue to accelerate and get worse. And so it’s going to impact food security, and our way of life,” Whiting said.

Alaskan villages like Kotzebue can be extremely remote. Many aren’t connected to roads, and are only reachable by plane or boat. Even then, harsh weather conditions make transportation unpredictable. This dynamic can lead to unreliable cargo shipments and high grocery prices, heightening the need for subsistence hunting and fishing.

But the ugruk harvest means more than just food security. The tradition has been a part of Inupiat culture since time immemorial, and plays an important role in community bonding and generational ties.

“It’s a challenge for food security, but it’s also a challenge for having maximum opportunities to perpetuate cultural traditions and knowledge to future generations,” Whiting said. “It’s harder to train the next generation with activities that are becoming more difficult or not even happening anymore.”

Schaeffer believes the environmental problems are worsening an already existing disconnect between generations.

“I think the generational gap is probably the biggest problem. We have very few elders left in the community that can remember what they were taught by the elders of the past,” he said. “And now the new generation doesn’t take their children out to hunt as much as they used to.”

Some years the warning signs are more noticeable than others. In 2018 and 2019, the Kotzebue Sound sat empty, free from the ice chunks that usually crowded the surface. They were only 30 miles from the Arctic circle, but it might as well have been hundreds of miles south.

Whiting has been keeping a journal tracking such changes since 2002. In his initial research as the environmental program’s director, he consistently came across written observations from past explorers, anthropologists, and scientists. The entries dated back to the 1900s, but became less frequent overtime. He decided that it could be useful to revive the old practice with his own written recordings, after a dramatic snow storm swept through the village in the middle of summer.

“In the present, what you write about common places and common knowledge is not all that interesting. But as time passes, the information gets more interesting and also more valuable,” he said.

He didn’t have to wait long for his prediction about the journal’s future importance to come true. His daily observations ended up providing ideal qualitative detail to the study’s satellite imagery.

Inupiaq hunter Bobby Schaeffer.

Inupiaq hunter Bobby Schaeffer.

Photo courtesy of University of Alaska Fairbanks, 2021

Kotzebue input was an essential element of the entire scientific process. In addition to using local recordings and elders’ insights to augment data, the research team worked with the village to craft relevant questions and determine the most pressing concerns.

“It’s a way to hold researchers accountable, because they’ve been coming to the Arctic for decades and just doing their own thing — not being very responsive to the people here or acknowledging us,” Whiting said.

Schaeffer agreed. He was used to scientists coming to Kotzebue without including Indigenous guidance, or even considering the value of traditional knowledge.

“This is unfortunate because we’re the ones that live it. We’ve seen how the damage is done to date. So it’s important for us to be involved,” he said. “We were lucky to get someone like (University of Alaska Fairbanks) on board this time.”

The benefits of the partnership were evident to everyone involved.

“I hope that our research approach, which centered Indigenous-led research questions and perspectives, can be an example for other scientists to learn from and re-examine their own approaches,” Hauser said. “I also think we did better and more complete science as a result of our collaborative approach.”

Hauser sees the project as a promising example for future studies.

“Our Ikaagvik Sikukun research project is ending, but we have built collaborations that will propel some of these questions and issues forward in Kotzebue and other communities as well,” she said.

Despite the program’s success, Schaeffer can’t help but worry what the future holds for his community and the practice that has sustained them for centuries.

“It’s scary to look at it in a negative way, but how else can you look at it unless something is done about it? What are the ugruk going to do to adapt, and what are we going to do to adapt?” he asked. “I guess time will tell.”

ICT logo bridge


Our stories are worth telling. Our stories are worth sharing. Our stories are worth your support. Contribute $5 or $10 today to help Indian Country Today carry out its critical mission. Sign up for ICT’s free newsletter. TagsClimate ChangeAlaska Natives

Meghan Sullivan

By Meghan Sullivan

Meghan Fate Sullivan, Koyukon Athabascan, is a former Stanford Rebele Fellow turned special correspondent for Indian Country Today, currently reporting on and producing ICT’s ANCSA 50 project. She grew up in Alaska, and reports on her home state from our Anchorage Bureau. Follow her on Twitter: @mfatesully.

Roswell Schaffer, an Iñupiaq elder and hunter from Kotzebue, Alaska, who helped co-author the study. (Photo courtesy of Sarah Betcher, Farthest North Films, 2021)

Lakota Law

I have good news for you from the Line 3 front! This past weekend in Minnesota, I joined four members of “the Squad”  — U.S. Reps. Ayanna Pressley, Rashida Tlaib, Cori Bush, and Ilhan Omar — to increase pressure on President Joe Biden to #StopLine3. As a Lakota elder and the former Standing Rock tribal liaison to the Oceti Sakowin camp during the NoDAPL struggle, I deeply understand the heartache my Anishinaabe relatives feel as this toxic pipeline invades their sacred lands and waterways — and I’m extremely grateful to these brave elected leaders for their solidarity.

Lakota Law

Watch: I was honored to join Anishinaabe relatives and Congress members in support of the #StopLine3 movement at the frontlines this past weekend. I’m in the blue shirt to the right of Cori Bush!

Our Lakota team at the frontline included our co-director, Chase Iron Eyes, and the Squad was joined by Minn. State Sen. Mary Kunesh (a descendant of Standing Rock). As you know, the Indigenous women leading this fight — like Taysha Martineau of Camp Migizi, Tara Houska of Camp Giniw, and Winona Laduke of Honor the Earth — need all the support we can provide at the frontlines. It’s a meaningful step that the congresswomen, all of whom also signed onto a letter asking the president to intercede at Line 3, gave of their time and energy to visit resistance camps and amplify the struggle.
 
Notably, Alexandria Ocasio-Cortez (who decided to run for Congress while at Standing Rock in 2017, and whom I remember vividly as a friendly young woman in blue jeans) was also scheduled to come to the frontlines, but Hurricane Ida forced her to stay home in New York City. The horrific flooding in her borough further highlights humanity’s need to move climate justice to the very top of our priority list — right now, while we still can.
 
I’m happy to report that we were able to meet face to face with each of the congresswomen and get to know their staffers. We will remain in touch and ready to team up on key issues going forward. In about a week, my colleague and sister in service, Madonna Thunder Hawk, will lead more Lakota elders on a three-day trip to Line 3 to further support Taysha at Camp Migizi. We won’t stop doing whatever it takes to build key alliances and grow this movement to protect Unci Maka, our Grandmother Earth.

Wopila tanka — thank you for standing with our Anishinaabe relatives!
Phyllis Young
Standing Rock Organizer
The Lakota People’s Law Project

Resistance

Lakota Law header

,

Last week, we introduced you to Ruby Montoya, a schoolteacher and NoDAPL resistor being prosecuted as a terrorist by the U.S. government. She’s accused of putting four tiny holes into DAPL pipes before it was carrying oil — and for this, she’s facing the prospect of up to 20 years in federal prison. That’s far from acceptable, and it’s why we’re aiding her defense. Last week, Daphne Silverman, Ruby’s new attorney, submitted a motion to change Ruby’s prior guilty plea to not guilty based on crucial new discoveries. Read on for the details.

Lakota Law

Ruby (right) and co-defendant Jessica Reznicek prior to their arrest. In our new video, Ruby and I talk about water protectors being labeled and prosecuted as terrorists.

After initial review of the case, our side has identified a number of major issues that should disqualify Ruby’s original plea. For one thing, the prosecutor and the pipeline company allege that millions of damage was done, but an expert hired by Daphne says it’s less than $50,000. In addition, some charges filed by the prosecutor require the pipeline to have been in use at the time it was allegedly damaged. It was not.

Those distinctions make a world of difference. Without damage over $100,000 to an operational pipe, these charges don’t qualify for federal court — and outside of federal court, there can be no terrorism enhancement. As I mention in our new video, this is eerily reminiscent of how I was treated during my own resistance to DAPL in 2016 and 2017. The government and law enforcement are demonstrating a pattern of deception designed to criminalize constitutionally protected protest, elevate charges, and label citizens who dare to care about the future of Planet Earth as terrorists. It’s infuriating.

If the court labels Ruby a terrorist, she’ll be punished like a career criminal — but Ruby has no criminal history at all. We expect a court decision on the plea change in the next couple months. Meanwhile, Daphne will be investigating, researching, and conducting additional review of the discovery. We hope that, with her expert legal assistance and support from folks like you, the justice system will ultimately treat Ruby with far more fairness than water protectors have come to expect. Stay tuned.

Wopila tanka — thank you for your solidarity with water protectors!
Chase Iron Eyes
Co-Director and Lead Counsel
The Lakota People’s Law Project

Pipeline #3 Action

Lakota Law

Boozhoo,

Yesterday, led by our grandmothers, we took the Line 3 pipeline resistance directly to the Minnesota State Capitol in St. Paul. Emblematic of the deepening solidarity among tribal nations, a caravan of 20 Standing Rock citizens, assisted by the Lakota People’s Law Project, joined us for our “Treaties not Tar Sands” rally.

giving tuesday

Watch: I joined Anishinaabe, Lakota, and other mostly Native speakers yesterday in St. Paul, Minnesota.

An impressive lineup of BIPOC speakers and Minnesota state officials, headlined by White Earth Nation’s Winona LaDuke, addressed more than 2,000 people who showed up to call out Enbridge’s toxic tar sands oil pipeline. Toward the end of the day, we at Camp Migizi took our turn at the microphone. Five Lakota People came onstage with us to acknowledge the importance of resisting pipelines together — and they should know, since they were all at Standing Rock in 2016 and ‘17 during the NoDAPL movement.

Among the more heartfelt and timely messages imparted by our Lakota relatives was a call for unity from elder Sonny Wonase. I invite you to watch highlights from both my talk and his.

Police presence was as strong as ever, including a fence meant to wall state officials off from our prayerful ceremony and pleas for justice. As you can probably guess, that didn’t deter water protectors. At the end of the rally, my fellow organizers read a statement of demands criticizing Governor Tim Walz’s support of the pipeline and militarized response. We also continued to call on President Joe Biden to intervene.

Until we’re heard and acknowledged, we will not be silent. We will not stop taking direct action to end this invasion of our sacred lands and protect our water and manoomin (wild rice). We are carrying forward the tradition of Indigenous activism begun by the American Indian Movement in the 1960s and renewed at Standing Rock five years ago. I express my gratitude to Standing Rock for standing with us now — and to you for holding space with us and Mother Earth. If we come together across our traditional boundaries, if we act with a unified voice and spirit, we can win this fight.

Miigwech — thank you for your support!
Taysha Martinaeu
Camp Migizi 
Via the Lakota People’s Law Project

Terrorists? I think not…

At Standing Rock in 2016, water protectors were labeled as domestic terrorists. I created this short video to counter that claim. We are just the common people out here defending our rights and our lives. The government is supposed to work FOR US. The corporations are business entities that are supposed to be producing things FOR US.

Instead we are getting things done TO US:

Take A Stand.

https://vimeo.com/user20249273

Lakota Law header

Today, water protectors from Standing Rock are still being prosecuted, and — in the troubling cases of Ruby Montoya and Jessica Reznicek — they’re still being labeled as terrorists. Because we cannot allow this dangerous precedent to be used against more people who care for our Grandmother Earth, we’re going to help defend Ruby. Our struggle against the Dakota Access pipeline (DAPL) didn’t end at Standing Rock in 2017, and it won’t be over until every water protector in the crosshairs of the criminal justice system is liberated.

Watch: I interviewed Ruby about her stand against DAPL.

In 2017, Ruby and Jessica engaged in a direct action that damaged an empty section of DAPL’s pipe. Jessica was recently found guilty, given a “terrorism enhancement,” and sentenced to eight years in prison. Ruby’s fate now hangs in the balance as her trial approaches. With litigation support from Lakota Law and the National Lawyers Guild, Ruby is going to fight. Her next hearing is scheduled for Wednesday, Sept. 1.

As Ruby says in this new video produced by our team, humanity is going through a reckoning. In the future, no one will fondly remember the names of corporations that represented the status quo; instead, many people will only wish they had fought harder to protect life on this planet. Nobody who takes a stand to stop extractive destruction should ever be charged with a felony, much less be labeled a terrorist.

Ruby told me that Jessica has never even held a weapon in her hands, and at one point she was considering entering a monastery. And Ruby is a Waldorf School teacher, who vividly remembers kids in her classes crying and losing sleep because Australia and the Amazon were on fire. Ruby’s resistance, like my own back in 2017 that earned me a felony charge, has been motivated only by a desire to give the next generations a destiny they can believe in.

Nothing any of us did comes close to a level of governmental coercion necessary to justify a terrorism enhancement. It’s fallacious to suggest we have that type of power. If the government is being coerced by anyone, it’s the fossil fuel barons who buy politicians to protect their profits. Ruby was invited by an Indigenous community to protect water and help safeguard sacred lands. She showed up. Now, we will have her back, just like she had ours. Please stay tuned as we continue to fight to prevent a grave miscarriage of justice.  

Wopila tanka — thank you for standing for justice!
Chase iron Eyes
Co-Director and Lead Counsel
via the Lakota People’s Law Project

Rights of Nature

https://indiancountrytoday.com/news/rights-of-nature-lawsuits-hit-a-sweet-spot

Mary Annette Pember
Indian Country Today

It’s all about strategy and timing in Indian Country, especially in the legal system.

Shortly after a groundbreaking lawsuit was filed in the White Earth Nation’s tribal court defending the rights of wild rice to fight the construction of Enbridge’s Line 3 pipeline, the United Nations released its 6th Assessment on Climate Change.

The UN report includes an entire chapter dedicated to the powerful role that Indigenous knowledge can play in global development of adaptation and mitigation strategies aimed at addressing climate change.

According to the report, recognition of Indigenous rights, governance systems and laws are central to creating effective adaptation and sustainable development strategies that can save humanity from the impacts of climate change. In this first of three climate change reports, the working group focused primarily on physical science, providing evidence that a climate crisis caused mostly by human activities is upon us.

Boom. The report’s release created the perfect public moment to exert tribal sovereignty and advance the legal theory that nature itself, in this case wild rice, has the right to exist and flourish even in the face of the construction of a massive infrastructure transporting fossil fuel.

The so-called “rights of nature” argument recognizes that nature has rights just as human beings have rights; rather than treating nature as property under the law, rights of nature cases contend that nature, rivers, forests and ecosystems have the right to exist, flourish, maintain and regenerate their life cycles. Further, humans have a legal responsibility to enforce those rights.

According to the Global Alliance for the Rights of Nature, Indigenous cultures recognize the rights of nature as part of their traditions of living in harmony and recognition that all life is connected.

(Related: ‘Code Red’ on Indigenous People’s Day)

For Ojibwe, wild rice or manoomin, “good berry” in the Ojibwe language, is like a member of the family, a relative. Manoomin is more than food, it is a conveyor of culture, spirituality and tradition. Therefore, legally designating manoomin as a person in the White Earth Nation’s lawsuit against the Minnesota Department of Natural Resources aligns with the Ojibwe world view.

Manoomin is considered an indicator species; it is sensitive to changes in water levels and flow reflecting changes in the local climate. The Minnesota Department of Natural Resources reports that the 2021 wild rice harvest in the state’s waterways should be average this year but that low water levels caused by drought will make access difficult. Rice is harvested from a canoe.

Frank Bibeau, attorney for and citizen of the White Earth Nation, blames the Enbridge pipeline construction for exacerbating the lower water levels in neighboring rivers.

Frank Bibeau, citizen of and attorney for the White Earth Nation discusses his legal strategy at gathering at the Shell City campground in Wadena County, Minnesota, June 2021. (Photo by Mary Annette Pember)

Frank Bibeau, citizen of and attorney for the White Earth Nation discusses his legal strategy at gathering at the Shell City campground in Wadena County, Minnesota, June 2021. (Photo by Mary Annette Pember)

“We are seeing rivers along Line 3 that are now essentially dry bottoms with rice growing out of the mud. We can’t get our canoes in to harvest,” he said.

On Aug. 6, manoomin was named as a plaintiff, along with several White Earth tribal citizens and Native and non-Native water protectors who have demonstrated against Line 3, in a complaint filed in White Earth Nation Tribal Court against the Minnesota Department of Natural Resources.

It is only the second “rights of nature” case to be filed in the U.S. and the first to be filed in tribal court. Several tribes, however, have incorporated rights of nature into their laws.

The lawsuit accuses the department of failing to protect the state’s fresh water by allowing Enbridge to pump up to 5 billion gallons of groundwater from construction trenches during a drought that itself is tied to climate change, which increases the pace of extreme weather swings and contributes to lags in the jet stream that keep heat waves, cold snaps and rain in an area for longer periods.

The suit also claims that the department has violated not only the rights of manoomin but also treaty rights for those who hunt, fish and gather wild rice off-reservations in ceded lands. The lawsuit seeks to establish the rights of manoomin, stop the extreme water pumping by Enbridge and stop arrests of water protectors opposing the pipeline at construction sites.

Juli Kellner, communications specialist for Enbridge, wrote an email responding to Indian Country Today’s request for the company’s reaction to the lawsuit.

“Line 3 construction permits include conditions that specifically protect wild rice waters. As a matter of fact, Enbridge pipelines have coexisted with Minnesota’s most sacred and productive wild rice stands for over seven decades,” she said.

“The current drought conditions in Minnesota are concerning to everyone. In response, the Minnesota Department of Natural Resources has suspended the use of some water sources due to low flow in specific watersheds. We are focused on protecting, conserving and reusing water on the Line 3 project. More than 50 percent of pipeline sections being tested on Line 3 by reusing water. We continue to work with agencies on next steps during these drought conditions.

“Enbridge has demonstrated ongoing respect for tribal sovereignty,” she wrote.

Department of Nature Resources spokesperson Gail Nosek said the agency is reviewing the lawsuit and had no comment.

‘Gaining traction’

Exerting tribal sovereignty by filing the lawsuit in tribal court rather than in state or federal court and advancing the legal theory of the rights of nature are unique, according to legal scholars.

“The rights of nature is quickly gaining traction in American legal law,” said Elizabeth Kronk Warner, dean of S.J. Quinney College of Law at the University of Utah. Warner is a citizen of the Sault Ste. Marie Tribe of Chippewa Indians.

“It’s already established in some other countries; the rights of nature is definitely a burgeoning area of law and I think we’ll continue to see it develop,” Warner said.

Courts in Bolivia, Columbia, Ecuador, India and New Zealand have litigated cases based on rights of nature.

The first “rights of nature” case filed in the U.S. came in April in Orange County, Florida, when the state’s waterways filed suit against a housing developer and the Florida Department of Environmental Protection. The suit says that a proposed residential development will destroy acres of wetlands.

But tribal courts have no authority to order the Minnesota Department of Natural Resources to rescind its water permit to Enbridge, according to Matthew Fletcher, a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and a law professor who is director of the Indigenous Law and Policy Center.

Fletcher agrees, however, that establishing the rights of manoomin as a legal entity in tribal court is a sound strategy.

“Those rights likely would not be recognized on their own in state or federal court; this suit may be a valuable exercise,” Fletcher said.

Attorneys chose to file the suit in White Earth’s tribal court as a means to quickly get the case heard in federal court. Tribal court civil cases involving non-Natives are permitted by consent of the defendant.

Legal scholars say that in this case, the state government would typically seek to have the case removed to the federal courts.

Bibeau said that the Minnesota Department of Natural Resources has already asked to file a motion to dismiss for lack of jurisdiction in the case. Although states and their agencies have their own sovereign immunity from lawsuits, Bibeau thinks that the department won’t be able to dodge the suit even if federal courts return the case to tribal court. The key is asking for a declaratory judgment and injunctive relief rather than monetary damages.

“I don’t think the state has immunity from declaratory judgment,” Bibeau said.

A declaratory judgment declares the rights of the plaintiff without any specific action or award for damages. Injunctive relief restrains a party from engaging in certain actions or requires them to do the actions in a certain way.

“I think that declaratory relief is within the boundaries of tribal court,” Bibeau said.

After the tribal court issues its order, regardless of the state’s participation, it will have created case law to which the federal court can refer when deciding to hear the case or return it to tribal court.

Manoomin or wild rice is more than food for Ojibwe; it conveys culture and tradition. 2020. (Photo by Mary Annette Pember)

Manoomin or wild rice is more than food for Ojibwe; it conveys culture and tradition. 2020. (Photo by Mary Annette Pember)

“I don’t think anybody has tried to sue a state from a tribal court but I don’t think there’s any federal statute against it,” Bibeau said.

“They (the DNR) won’t be able to stop the tribal court order. When we go to federal court based on the simplicity of water and wild rice, we can go a long way because we already have those rights as a sovereign nation,” he said.

Either scenario, according to Bibeau, is a win for plaintiffs.

Looking ahead

Bibeau’s legal strategy, however, is not without pitfalls.

Treaties signed between the Ojibwe and the federal government in 1837 and 1854 guaranteed tribes the right to hunt, fish and gather on ceded lands. The 1855 treaty or Treaty of Washington, however, conspicuously lacks language spelling out this right. The bulk of the Line 3 pipeline runs through 1855 treaty lands.

In 2019, the Minnesota Court of Appeals ruled in favor of the state regarding 1855 treaty rights to hunt, fish and gather on ceded lands. Two Ojibwe men were cited by the state for illegally taking fish from Gull Lake located on off-reservation lands in the 1855 Treaty area. One judge, however, offered a dissenting opinion in the case saying that rights apply to treaties as the Indians at the time would have understood them.

Bibeau represented one of the defendants in this case. “There is nothing in the 1855 Treaty that relinquished rights to hunt, fish and gather on ceded lands,” Bibeau said.

This is known as the reserved rights doctrine; treaties describe the specific rights tribes gave up, not those they retain. In many cases, the federal court has interpreted treaties using the reserved rights doctrine.

The elements of White Earth’s lawsuit that depend on rights to hunt, fish and gather on ceded lands within the 1855 Treaty area are contingent on these rights being affirmed. For instance, plaintiffs claim that the state deprived them of their civil rights by charging them with trespass and other crimes as they protested Line 3 construction; they argue that they were lawfully engaged in exercising their treaty rights.

Minnesota treaty map. Courtesy Mitchell Hamline School of Law

Minnesota treaty map. Courtesy Mitchell Hamline School of Law

Establishing that the 1855 treaty should be interpreted to include hunting, fishing and gathering rights on ceded lands could be a challenge, according to treaty scholars. At least one scholar, who preferred to be quoted anonymously, cautioned that each treaty is different.

Although Warner agreed that establishing treaty rights in this case might not be an easy argument, it would be consistent with existing Indian treaty law.

“Tribes have been having a lot of success in the current Supreme Court; all of the cases relying on treaty rights have been successful,” Warner said.

She pointed to the McGirt case in Oklahoma and the Boldt decision in Washington.

Most of these decisions have been led by Supreme Court Justice Neil Gorsuch. Although considered a conservative, Gorsuch has demonstrated a keen understanding and appreciation of tribal sovereignty and treaty rights expressing respect for the reserved rights doctrine. During his tenure, Gorsuch has ruled in favor of important treaty rights cases such as Herrera v. Wyoming, rejecting past theories of state sovereignty and Washington State Department of Licensing v. Cougar Den affirming the state’s obligations to tribes. Gorsuch served as federal judge on the 10th U.S. Circuit Court of Appeals where he gained extensive experience in Indian law.

“The interesting thing would be if White Earth’s right to nature claim could be incorporated into or run parallel to a treaty right,” Warner said.

The release of the UN’s climate report alongside White Earth’s lawsuit could be auspicious for both treaty rights claims and the rights of nature, according to Warner.

“The urgency of the UN findings make this litigation and advocacy work so much more important now because we literally have a window of time in which to make changes,” Warner said.

Indian Country Today - bridge logo

Our stories are worth telling. Our stories are worth sharing. Our stories are worth your support. Contribute $5 or $10 contribution today to help Indian Country Today carry out its critical mission. Sign up for ICT’s free newsletter.