Pipeline Poses Risks to Michigan Indian Treaty Rights

By John Petoskey*

In September of 2016 the Grand Traverse Band of Ottawa and Chippewa Indians (“GTB”) tribe formally objected to a $171 million-dollar settlement between the Obama Administration and Enbridge Energy regarding Enbridge line 5, an oil pipeline that runs beneath the Straits of Mackinaw.[1] The settlement included $110 million upgrades to the aging pipeline, as well as a $61 million fine for the 2010 oil spill in Marshall, Michigan which spilled hundreds of thousands of gallons of crude oil into the Kalamazoo river.[2] The objection centers on arguments similar to the ones utilized by the Standing Rock Sioux tribe in their legal dispute surrounding the Dakota Access Pipeline. GTB asserts that under the National Historical Preservation Act Section 106, the Obama Administration is required to engage in meaningful consultation with the tribe when it plans to undertake infrastructure projects in places of historical, cultural or religious significance to the tribe.[3] Though it remains to be seen whether the tribe will prevail in requesting a comprehensive environmental review, it is certain that the pipeline threatens the tribe’s rights to fish in the Great Lakes as guaranteed by the Treaty of Washington in 1836.[4] Examining the cultural significance of this area and the history of the pipeline’s construction is essential to understanding the tribe’s position and the broader environmental and social implications of Line 5.

Fishing has held high importance among the Anishinaabe tribes of Michigan for centuries.[5] The role of fishing in Anishinaabe life prior to European contact sets the backdrop for the recent objection by GTB.[6] After the retreat of the glaciers, fishing became more prevalent in many of the pre-historic aboriginal cultures. For the past twelve thousand years, the tribes of Michigan have subsisted by fishing in one form or another. [7] Evidence of fishing as it is recognized among Indigenous people in Michigan emerges from around 1000 BCE and 2000 BCE.[8] Michigan Indian tribes during this period subsisted primarily on hunting, but fishing became increasingly important as populations increased, and the prevalence of big game decreased. With the introduction of gill nets around 1AD, fishing became the most important source of food for Indians in the Great Lakes region and it would remain that way for nearly two millennia.[9] Indigenous people of the Great Lakes region developed migratory patterns that centered on the abundance of fish in the Great Lakes. In the 17th, 18th, and 19th centuries the Straits of Mackinaw became very culturally significant to the Anishinaabe.[10] In the springtime, these tribes would converge at the area to fish, trade, and socialize. [11] The winter villages were divided into smaller family groups that subsisted on a combination of fish and game that was hunted in small parties in the inner forests of Michigan.[12] Fish not only compromised a large portion of the Anishinaabe diet, but it also held a high cultural importance because it reunited tribes after long winters, and helped them subsist throughout them.[13]

The United States has long exerted plenary authority over Indian tribes. In the pre-treaty period the Odawa and Ojibwa of Michigan were groups of people who had a deep-rooted relationship with the land and the environment in which they lived.[14] As the advancement of immigrants from Europe over the traditional homelands of the Anishinaabe increased, so too did concern among these groups about their permanency in the land they called home.[15] The treaties of 1836 and 1855 were efforts by the leaders of these Indigenous communities to secure permanent homelands for their people and avoid removal to Kansas or Oklahoma.[16] The Treaty of Washington of 1836 was signed between the United States and several band chiefs of the Anishinaabe. [17] The agreement between the two parties would cede nearly fourteen million acres of land that stretched across much of northern Lower Michigan and the eastern part of the Upper Peninsula. This treaty is responsible for the establishment of State of Michigan in 1837.[18] In exchange, the Tribes would receive annuity payments from the government and would stay on reservation lands for five years before being removed to the western territories.[19] During this time, the Michigan Anishinaabe would retain the right to use the land as they had done for centuries.[20] The Treaty of Detroit in 1855 later incorporated the provisions of the Treaty of 1836 and preserved a homeland for these tribes on which they continue to live to this day.[21] In Article XIII the Treaty 1836 states “The Indians stipulate for the right of hunting on the lands ceded, with other usual rights of occupancy, until the land is required for settlement” Article XIII became the key statement of the treaty that the Michigan Indian tribes have used in their defense of retained Indian fishing rights.[22] There was a litany of legal disputes between the 1836 Treaty tribes and the state of Michigan in the late 20th century. These cases secured the fishing rights of the Grand Traverse Band and upheld the treaty language of the Treaty of Washington.[23] It is this same language that is at issue in the current dispute over Line 5.

Line 5 consists of two 20-inch in diameter pipelines.[24] These pipelines transport roughly twenty-three million gallons of oil a day. [25] They were constructed in 1953 by the Eisenhower Administration and are owned by Enbridge Inc.[26] This area is one of the most ecologically unique areas in the world. The Straits of Mackinaw are a convergence of Lake Huron and Lake Michigan which contain nearly 20% of the fresh surface water on the planet.[27] The safety risks associated with the pipeline are vast which is why the tribe would like the Army Corps of Engineers to undertake a full environmental review of the project. The pipeline is over sixty years old and had an initial life expectancy of fifty years when constructed.[28] Additionally, Enbridge Inc. has a tarnished record in the state—they are responsible for the contamination of the Kalamazoo River in 2010.[29] This pipeline threatens the integrity of the rights guaranteed by the Treaty of 1836 and the tribe was never consulted on the settlement agreement in accordance with the National Historical Preservation act. As this issue develops further the pipeline will continue to pose significant risks to the ecology and culture of this region, as well as to the people who live there.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

*John Petoskey is a Junior Editor on MJEAL. He can be reached at petosjoh@umich.edu.

[1] David Hasemyer, Michigan Tribe Aims to Block Enbridge Pipeline Spill Settlement, Inside Climate News (Sept. 13 2016), https://insideclimatenews.org/news/12092016/kalamazoo-river-oil-spill-deal-enbridge-michigan-tribe-line-5-oil-pipeline-dakota-access.

[2] Id.

[3] See National Historic Preservation Act of 1966, Pub. L. No. 89-665, § 302.701(e), 80 Stat. 915 (1966); Executive Order 13175, Consultation and Coordination with Indian Tribal Governments (Nov. 6, 2009).

[4] United States v. Michigan, 471 F. Supp. 192, 221-22 (W.D. Mich. 1979)

[5] Id.

 [6] Matthew L.M. Fletcher, The Eagle Returns: a Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians 4—13 (2012).

[7] United States v. Michigan, 471 F. Supp. 221-222 (W.D. Mich. 1979).

[8] Id. at 221-222

 [9] Id. at 221-223

[10] Id. at 221-223

[11] Id. at 221-223

 [12]  Id. at 221-223

 [13] Matthew L.M. Fletcher, The Eagle Returns: a Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians 4—13 (2012).

[14]  See generallyMatthew L.M. Fletcher, The Eagle Returns: a Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians 4—13 (2012).

 [15]  Id. at 4-13

[16] Id. at 13-27, 34-54.

[17] Id. 13-27, 34-54

[18] Id. at 13-27, 34-54

[19] Id.

[20] Id. at 66—69.

[21] Id. at 190-193

[22] United States v. Michigan, 471 F. Supp. 192, 192 (W.D. Mich. 1979).

[23] Fletcher, supra note 5, at 111—19.

[24] Hasemyer, supra note 1; The Problem: Overview, Oil & Water Don’t Mix, http://www.oilandwaterdontmix.org/problem (last visited Jan. 8, 2016).

[25] Id.

 [26] Id.

[27] Oil & Water Don’t Mix, supra note 12.

[28] Id.

[29] Hasemyer, supra note 1.

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