This coverage is made possible through a partnership with Grist and Interlochen Public Radio in Northern Michigan.
Those involved in the Line 5 pipeline controversy has been waiting for the US Department of Justice — and the Biden administration — to come forward with its opinion on a case involving tribal sovereignty and foreign relations.
But when the legal assignment came down on Wednesday, nobody was happy.
The Justice Department amicus brief supported claims by a Wisconsin tribe that Enbridge, a Canadian company, is trespassing on its lands by continuing to operate the Line 5 pipeline there. The 71 year old pipeline bearing up to 540,000 barrels of oil and natural gas liquids daily from Superior, Wisconsin to Sarnia, Ontario.
The DOJ also agreed that Enbridge had been trespassing on the group’s lands for more than a decade, and specified that the company must pay more than the court-ordered $5.15 million to the group, as the company had over $1 billion in that time earned
“We are grateful that the US urged the court not to allow Enbridge to profit from its illegal violation,” said Robert Blanchard, chairman of the Bad River Band of the Lake Superior Chippewa Indians, located in northern Wisconsin .
But, Blanchard added in a statement, they are disappointed that the U.S. did not demand that the company immediately cease violations: “Enbridge should be required to leave our reservation immediately, just like other companies that have violated tribal lands. “
The legal track starting in 2019when the tape sued Bridge for entry. The district ruling was issued last June. Both Enbridge and the group appealed.
In their appeal, Enbridge and the Canadian government pointed to the 1977 Transit Pipeline Treaty between the United States and Canada, which promised an uninterrupted flow of oil and gas products between the nations.
Both Enbridge and Canada argue that shutting down the pipeline before moving it would violate the pipeline treaty and affect energy supplies across the northern US and Canada.
The court awaiting the DOJ brief, the Seventh Circuit Court of Appeals, was looking for guidance on that question.
But the department stopped short of saying how the court should interpret the 1977 treaty, recommending only that the case be sent back to the district court to address public interests, including diplomatic relations with Canada, energy issues surrounding Line 5, and the protection of the band’s sovereign rights.
“The brief does not provide an interpretation of the transit treaty’s provisions, and that was quite surprising, given that the court specifically asked for that interpretation,” said the group’s lawyer, Riyaz Kanji.
The Bad River Band disagrees with Enbridge and Canada’s interpretation of the pipeline treaty. The group refers to its 1854 treaty with the US, which recognizes its sovereign authority over those countries.
Even if the pipeline treaty applies, according to the bond, it still allows pipelines to be regulated, including for pipeline safety and environmental protection.
This worried the group’s supporters. Some say the US is failing to meaningfully support tribal sovereignty, instead protecting its interests with Canada.
“From the point of view of the tribe and its allies, it is incredibly troubling that the United States is not advocating for the closure or removal of that pipeline,” said Matthew Fletcher, a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and ‘ a law professor at the University of Michigan.
Other Great Lakes tribes argued that accepting Canada and Enbridge’s interpretation of the pipeline treaty would undermine fundamental principles of tribal sovereignty and have major implications for property rights.
In a letter to the Biden administration in late February, representatives of 30 tribal nations across the region said the US must fulfill its fiduciary responsibility by rejecting that interpretation of the pipeline treaty.
Enbridge declined Grist’s request for an interview. Company spokesman Ryan Duffy said in an emailed statement: “The Government of Canada has made its position clear. Such a shutdown is not in the public interest as it harms businesses, communities and millions of individuals who line 5 is dependent for energy in both the US and Canada will have a negative impact.
The group, Enbridge and Canada have until April 24 to respond to the DOJ’s order. The Seventh Circuit Court of Appeals will then decide how to move forward.
Editor’s note: Enbridge is an advertiser with Interlochen Public Radio. Advertisers have no role in IPR’s editorial decisions.
