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.

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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.

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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

Indigenous People´s Day

Osiyo,

Today — Indigenous Peoples Day (IPD) — marks the highlight of the Indigenous year. I hope you will join us as we gather to celebrate, heal, and re-Indigenize. This long weekend represents a reprieve from trauma, sadness, and grief as we travel with good hearts to see close family and distant relatives, celebrate together, and share our cultures. 

As you likely know, many places do not yet celebrate with us. They’re still celebrating Columbus Day, perpetuating the myth that Christopher Columbus discovered so-called America. Columbus arrived on October 12, 1492 on Taino homelands. This first voyage was a reconnaissance mission wherein he later established La Navidad in present-day Haiti — America’s first colony. The following fall, he returned with an invasion force of 17 ships and 1,500 soldiers. He found La Navidad destroyed by Taino People, who had retaliated against rapes and murders carried out by the Spaniards.

Watch: Giniw Collective’s Tara Houska talks about the journey of Indigenous Peoples of these lands historically until the present day.

European weapons (like cannons and muskets), armor, horses, and dogs soon overwhelmed the Indigenous warriors, who were armed only with clubs and spears. Celebrating Columbus, therefore, condones genocide and colonization. Many think of these issues as only existing in the past. But these systems, set in motion hundreds of years ago by Columbus and other conquistadors, continue. All Taino homelands, from Puerto Rico to the Bahamas, remain colonized today — many by the United States. 

To combat the Columbus-as-hero narrative, we’re working to replace Columbus Day with IPD everywhere. Our hope is that more people like you will come together with us, as Indigenous People focus throughout the long weekend on empowerment through solidarity and sharing pathways to action. 

Watch Tara Houska’s Ted Talk. As our skilled Anishinaabe relative points out, many of these struggles are deeply rooted in trauma. But today is about sharing successes within our sustained resistance to colonization. We see ourselves in the faces of our relatives while they reflect on Indigenous sovereignty, land and water rights, education, economic development, language preservation and promotion, and religious freedom. 

Our celebrations feature Indigenous poets, musicians, artists, singers, leaders, and performers from across Turtle Island, who offer their gifts. Everyone who attends an event can actively participate in round dancing and be uplifted by traditional prayers. The overwhelming feelings of celebration and open-heartedness are palpable. This is the chance for settlers and non-Natives to catch us in our most generous mindset. As we come together across nations to actively decolonize and re-Indigenize our communities and share our gifts, I hope you will join a celebration in your area.

Wado — thank you for your ongoing solidarity with our Indigenous nations.
Sarah Rose Harper
Social Media Coordinator
The Lakota People’s Law Project

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.

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

Colonial Law Full Steam Ahead

Lakota Law header

Have you heard of a court case called Brackeen v. Haaland? If you’ve followed our communications for any length of time, you likely recognize one of those names. Indeed, U.S. Secretary of the Interior Deb Haaland — the first Native Cabinet secretary in U.S. history — is already under legal attack. And it probably won’t surprise you that the powerful entities behind this threat include the State of Texas and lawyers representing Big Oil.   

But it’s not just Secretary Haaland being targeted. The suit, which seeks to overturn the Indian Child Welfare Act, directly targets Native children and families. And because of the specific legal argument in play, it could also mean the end of tribal mineral rights, gaming revenues, Indian law as we know it, and ultimately our sovereignty as Indigenous nations. It’s not an overstatement to say our entire future could be at stake with a single decision — and that choice will now be made by a conservative-majority Supreme Court.

Lakota Law

Please read our comprehensive blog on this case to learn more. From there, immediately take action by signing and widely sharing our petition to President Joe Biden and Department of Justice attorneys. Tell them it’s absolutely critical they protect Native children and safeguard Indigenous rights!

Right now — even as I drive from South Dakota to Minnesota in support of my Indigenous relatives fighting the Line 3 pipeline — the high court is deciding whether or not to hear this case. We will keep you updated every step of the way. This may well be the most important decision the Supreme Court has ever made in relation to Native justice. Please help us spread the word and stop this unconscionable attack on our Indigenous communities.

Wopila tanka — thank you for helping us stand up to racist colonial law.
Madonna Thunder Hawk
Cheyenne River Organizer
The Lakota People’s Law Project

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.

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Line 3 – Minnesota

Lakota Law

Sending you best wishes from the Line 3 frontline in Minnesota. I’m encouraged to report that nearly 30 high-profile national lawmakers have responded to grassroots pressure and sent a joint letter to President Biden. It urges the White House to ensure a full environmental assessment of the Line 3 tar sands pipeline, which is damaging sensitive wetlands in the midst of the ever-worsening climate emergency. We on the frontlines are grateful we’re being heard. Our team is doing all we can to protect our sacred homelands — and your support is essential.

Please give to lift up our #StopLine3 resistance. We need food, fuel, equipment, and supplies to remain effective. We now have just a matter of weeks to convince the Biden administration to end the desecration of our lands and waterways. We won’t go away — but this pipeline must. Help us stay in its path every single day.

giving tuesday

Watch: I talk with you about why we’re glad to welcome the Lakota into our #StopLine3 struggle here in our mutual ancestral homelands.

Lakota Law reached out to lawmakers it has relationships with to sign onto the Biden letter, and the progress in D.C. is partly a result of all the direct action occurring here in Minnesota. Just today, we at Camp Migizi led a march on the Army Corps of Engineers building in Duluth, Minnesota. Lakota Law co-director and lead counsel Chase Iron Eyes and more than 300 water protectors joined us in delivering a strong message of resistance. 

Today’s direct action exemplifies the growing partnership between my Anishinaabe People and the Lakota who have come to stand with us. As expected, the police reacted aggressively, even detaining one Indigenous woman so forcefully that we felt it necessary to shut down a nearby bridge in response.

Next, on Saturday, we’re helping organize and publicize a direct action in D.C. In tandem with allied groups and influencers, Camp Migizi and Lakota Law will deliver more than 127,000 #StopLine3 petitions to Biden, hold a sacred ceremony, and engage with our fellow activists at the National Museum of the American Indian.

I want you to know that, even as we — and so many in the world — grapple with one existential crisis after another, there is much reason for hope. We must stay active and vigilant!

Miigwech — thank you for your solidarity with our Indigenous nations.
Taysha Martineau
Via the Lakota People’s Law Project

P.S. Help us stand in the way of this pipeline and ramp up the political pressure on President Biden to #StopLine3! By giving what you can today, you’ll be supporting important work on the frontlines to preserve water and the Earth for future generations.