Michigan’s indigenous tribes ramp up efforts to shut down oil pipeline through sacred waters - MLive.com

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Indigenous tribes are asserting their rights under a treaty that predates Michigan’s statehood while pursuing strategies to stop the construction of a new oil pipeline under the Straits of Mackinac.

Tribes concerned about the destructive potential of an oil spill in the Great Lakes have long been opposed to Enbridge Energy’s Line 5 pipeline, which was built in 1953 without their input. As Enbridge moves forward with plans to replace its 68-year-old pipeline with a tunnel buried under the lakebed, members of 12 federally recognized tribes in Michigan are using newfound political pressure and legal tools to protect their sacred waters.

Gov. Gretchen Whitmer acknowledged tribal treaty rights when she yanked an easement that allows Enbridge to transport, on average, 22.6 million gallons of crude oil per day through the Great Lakes region. But Whitmer’s May 12 deadline to shut down Line 5 came and went, and Enbridge is still operating the pipeline.

David Arroyo, tribal chairman of the Grand Traverse Band of Ottawa and Chippewa Indians, said Whitmer’s recognition of treaty rights represented a “paradigm shift” in how U.S. governments view their responsibility to protect the Great Lakes.

“We were here for millennia and this is the land of our ancestors,” Arroyo said. “We should have been part of the conversation decades ago.”

The Grand Traverse Band was among the signatories of the 1836 Treaty of Washington, which ceded nearly 14 million acres to the United States in exchange for the right to fish, hunt and gather throughout the territory. The tribe is also joined in legal efforts to shut down Line 5.

An oil spill would “change the universe” of tribal communities that depend on the Great Lakes for survival and assign significant historic and cultural value to the area, Arroyo said. The Tribal Council formally called for the removal of Line 5 in 2015.

“There should have been meaningful consultation before the pipeline was put in,” Arroyo said. “Not that I’m saying we would have approved it, but we were never even considered. I think there’s outreach now, but it’s too late.”

Matthew Fletcher, a member of the Grand Traverse Band and director of the Indigenous Law & Policy Center at Michigan State University, said the pipeline itself likely represents a violation of the treaty. But those rights haven’t been historically recognized.

It took a federal lawsuit to reaffirm commercial fishing rights that were disputed by the state of Michigan nearly 140 years after the treaty was signed.

Fletcher said it’s unlikely that tribes will sue Enbridge based on the treaty, calling it the “nuclear option.” While he’s optimistic that relations between the U.S. government and tribal governments are improving, indigenous communities are still struggling to be heard.

“It’s really, really hard for (tribes) to take a stand, but I think over the next few years they probably will,” Fletcher said. “It’s a slow, onerous and quite brutal political process. The United States and the state government have historically been terrible on talking to tribes about things that directly impact their citizens.”

Tribal governments have adopted a number of resolutions in support of decommissioning Line 5 in the last several years. Last month, the Bay Mills Tribal Council also voted to “banish” Enbridge’s Line 5 pipelines from its reservation and waters reserved under the treaty.

Meanwhile, Enbridge is moving ahead with plans to replace the pipelines with a tunnel beneath the Straits of Mackinac. Representatives of six tribal governments sent a letter to the Michigan Department of Environment Great Lakes and Energy asking the state to deny permit applications.

A month later, EGLE approved the permits.

The Bay Mills Indian Community is challenging the permits, arguing EGLE failed to properly consult tribes or fully evaluate the project’s impact on cultural and historic resources in the Straits of Mackinac. The tribe is also warning that tunnel construction could risk damaging archeological artifacts that could be in the area.

The State Historic Preservation Office recommended additional studies to assess the impact on cultural and historic resources before permits were issued, but the Bay Mills tribe says those studies didn’t happen.

Whitney Gravelle, president and chairwoman of the Bay Mills Indian Community, said in a statement that approving the permits shows “indifference to tribal sovereignty.”

“I think the most important takeaway is that this is a critical part of Bay Mills and other tribal nations’ identity,” said Debbie Chizewer, an environmental lawyer with Earthjustice representing the tribe. “This area is a place of cultural significance (and) economic viability. It’s something that they’re going to fight to protect.”

The Bay Mills tribe is also disputing an Enbridge cultural resource study that found a low chance of any submerged cultural resources in the area. The tribe cites a “whistleblower” involved in the survey who claimed the study only considered shipwrecks instead of prehistoric remains of indigenous people who resided in the area.

University of Michigan archeology professor John O’Shea wrote the Historic Preservation Office to report the whistleblower’s account. O’Shea has previously published research documenting evidence of prehistoric hunting grounds under Lake Huron.

Fletcher said the presence of artifacts dating back to the Ice Age bolsters the cultural significance of the Straits of Mackinac.

“That generates a whole new area of analysis that prior to that moment the state and the federal government could ignore,” Fletcher said. “This is a fairly significant layer of the tribe’s interest in the area; it’s not just treaty rights anymore.”

READ MORE ON MLIVE:

Possible Ice Age artifacts ignored by Line 5 tunnel survey, archeologist says

‘The battle is not over.’ Fight to stop oil pipeline in Great Lakes has waged for years

A history of the oil spills and battles around Michigan’s Enbridge Pipeline

Enbridge Line 5 oil pipeline opponents protest ‘ticking time bomb’ in Michigan Great Lakes

Whitmer threatens profit seizure as Enbridge Line 5 closure deadline looms

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