By: Chad Edwards
The Bay Mills Indian Community is fighting against the Enbridge Line 5 oil pipeline to protect the Straits of Mackinac and the Tribe’s treaty rights throughout Michigan’s waters. Just three years ago, an anchor struck and dented the pipeline on the lakebed under the Straits of Mackinac. This accident has fueled concerns among tribes and others about the impact of an oil spill in the Straits. In a 2017 report by the Pipeline Hazardous Materials Safety Administration, more than 1.1 million gallons of oil have leaked from 30 plus on-land spills along Line 5. If this pipeline ruptures under the Straits, it can release up to one million gallons of oil into the heart of the Great Lakes. The Great Lakes are the largest source of freshwater globally, supplying drinking water for 48 million people.
In the 1950s, without tribal consultation, public input, or treaty recognition, the State of Michigan granted Enbridge a lease and permission to build the original Line 5 dual pipeline. Enbridge’s Line 5 corridor runs 645 miles from Superior, Wisconsin, through Michigan’s Upper Peninsula, under the Straits of Mackinac, and terminates in Sarnia, Ontario, Canada. The products moved on Line 5 heat homes and businesses, fuel vehicles, and supply the power industry in Michigan. Overall, Line 5 transports up to 540,000 barrels per day of light crude oil, light synthetic crude, and natural gas liquids refined into propane. Now, Enbridge wants to build a tunnel to house a new Line 5 oil pipeline segment. Yet, Michigan Governor Gretchen Whitmer’s ordered to shut down the pipeline by May 12, 2021. Enbridge is refusing to comply and continues to operate the pipeline. “We intend to keep operating Line 5,” wrote Michael Barnes, Enbridge spokesperson, in an email to Indian Country Today. Enbridge leaders insist that Michigan’s Governor does not have the authority to enforce a shutdown without an order by a state or federal judge and has appealed the government’s decision in federal court. Enbridge is now trespassing as it continues to operate Line 5 in violation of the termination notice.
An oil spill from Line 5 would threaten Bay Mills Indian Community’s identity. Located in Brimley, Michigan, about 50 miles north of Mackinaw City and the Straits of Mackinac is the Bay Mills Indian Community. The Straits of Mackinac is a place of religious and cultural significance. The Anishinaabe people of Bay Mills believe that life, as we know it today, began in the Straits of Mackinac. They consider the waters where Lake Huron and Lake Eerie meet a sacred space. The area remains integral to the daily practice of cultural lifeways and is full of historical and archaeological sites. From time immemorial to today, communities, local businesses, and tribal members have depended on the abundant fish and wildlife in the Straits of Mackinac. Commercial and subsistence fishing and hunting continue to provide economic survival for most tribal members.
The Treaty of 1836 has reserved the right for tribal citizens to hunt, fish, and gather in ceded territory for all times. This includes Lake Superior, Huron, and Michigan, which comprise the Straits of Mackinac. To fight the controversial Michigan project, the Bay Mills Indian Community tribal council voted to banish Enbridge’s Line 5 pipelines from the reservation. “Enbridge’s continued harm to our treaty rights, our environment, our history, our citizens, and our culture is a prime example of how banishment should be used,” said President Whitney Gravelle of the Bay Mills Executive Council in a written statement issued by the Tribe. The Tribe, as a sovereign, is capable of protecting its legal rights. The United States has recognized these rights, the State of Michigan, and have repeatedly been affirmed by the federal courts. Bay Mills and its members have recognized legal rights to protect places of worship and spiritual practice, as well as areas of cultural significance. At the very least, the Tribe should have a right to provide input on this decision.
For the first time, the Michigan Public Service Commission will hear from Tribal Nations on this issue. The Public Service Commission will determine whether Enbridge will get its wish to build a massive tunnel beneath the Straits of Mackinac. On June 23, the U.S. Army Corps of Engineers agreed to perform an environmental impact statement for the Enbridge Energy LP Line 5 permit application. The decision leaves the project in limbo and could delay it for months. Bay Mills President Whitney Gravelle said, “An environmental review is vital as the Straits of Mackinac are a treaty-protected spiritual and sacred space that provides income and food resources for Native and non-Native communities alike…By treaty, we agreed to share part of our tribal lands with the United States and what became the State of Michigan. However, we reserved continued tribal use of our treaty-protected resources, including in the Straits of Mackinac.” The concern is that Enbridge could effectively construct a new oil pipeline beneath the Straits of Mackinac without any public scrutiny or environmental review process. The Great Lakes and tribal treaty rights will be at a greater risk without any meaningful chance to provide input.
Chad Edwards is a Colville Tribal member and is 24 years old. He graduated from Eastern Washington University where he majored in Philosophy and minored in Native American Studies. He is now a J.D. Candidate, Class of 2023, at the Sandra Day O’Connor College of Law at Arizona State University. He has an interest in environmental law.
Law Journal for Social Justice 