Native Water Protectors Test Treaty Rights Strategy as Line 3 Fight Escalates

Anishinaabe Water Protector Winona LaDuke paddles to the edge of Shell River at the grounds of her new pipeline resistance camp at Shell City Campground in Minnesota’s Huntersville State Forest. Stepping out of her canoe, she tells me she’s happy that I got into the water as I wade, pants rolled to my knees, in a shallow area. She shows me and other recent camp arrivals a clam shell she collected from the riverbed. The shell is strong and thick, she notes. It hasn’t gone soft from runoff.

Thousands of years ago, she tells us, there was an Indigenous village at the intersection of the Shell River and the Crow Wing River. She and other members of the White Earth Band of Ojibwe have found Native burial mounds and other artifacts like medallions made from clam shells in the area. After the Chippewa people were displaced, a button factory sprung up here and began using shells from the river. Now Shell City and its factory have become a ghost town.

Water Protectors’ canoes at the Shell River camp on June 4, 2021.

The site is sandwiched between two Enbridge Line 3 tar sands pipeline easements, about a half-mile to the West and two miles to the East. The pipeline crosses the Shell River at least five times here — clam shells and cultural sites be damned. That’s why LaDuke hopes this week’s gathering of more than 2,000 environmental and Indigenous activists, which saw more than 200 arrests after massive direct actions at an Enbridge pipeline easement and the Two Inlets pump station north of Park Rapids June 7, will swell the camp’s ranks with fresh Water Protectors planning to stay longer term as construction on the 337-mile, $4 billion pipeline resumes this month.

“I’m open to having this be a place where people can learn and not just network, but work on our food, work on the camp rules and teach people how to do some survival stuff because we did a lot of that at Standing Rock,” LaDuke told Truthout. “I think we’ll stay here. My tribe already said this spot looks pretty good. We can come fishin’ and ricin’ right here,” she says, referring to the tribe’s practice of harvesting sacred wild rice from the rivers and lakes here.

Water Protector Winona LaDuke visits with a horse at her new camp at Shell River. She hopes the camp can teach Indigenous youth traditional practices including horse riding.

LaDuke faces at least five charges from Aitkin County related to pipeline protest, including trespassing on critical infrastructure, unlawful assembly, harassment and public nuisance. She was issued a citation in December for praying at her own lodge near an easement site next to the Mississippi River. She calls the charges trumped up “bullshit” and expects they’ll be dropped. In the meantime, she remains unintimidated. “I myself may end up getting arrested here,” she tells me, referring to her new camp at Shell River. “I got my attorney here.”

That attorney is White Earth Band tribal lawyer Frank Bibeau, who not only represents LaDuke but a number of other Water Protectors facing charges for taking nonviolent direct action against the pipeline. His civil motion to dismiss LaDuke’s charges argues Aitkin County lacks jurisdiction in criminal court because she is tribal member, and so her trespass case should be handled in the tribe’s civil court. The motion to dismiss is just one part of a larger legal strategy he is pursuing which has its basis in a set of 19th-century federal and state treaties that expressly grant tribal access to ceded lands in order to hunt, fish and gather.

Treaty Tactics

A number of federal treaties with Chippewa nations in what is now Minnesota, including that of 1837 and 1854, expressly guarantee tribal access to ceded lands in order to hunt, fish and gather, including rights to do so off reservation. Although these rights are not expressly stated in the 1855 Treaty, Bibeau says the right was understood to be included by tribes signing the agreement at the time — a principle upheld by the Supreme Court in 1999. Moreover, courts have also upheld the idea of the reserved rights doctrine, meaning that any rights that are not specifically ceded or otherwise addressed in a treaty are reserved to the tribe.

Inter-tribal natural resource management organizations which protect and implement tribal hunting, fishing and gathering rights, known as treaty authorities, have established conservation codes for Chippewa tribes, as well as resource courts both on and off reservations to interpret and enforce conservation matters in treaty territories.

Early this month, Bibeau notified the Minnesota Department of Natural Resources and the Northern Lights Task Force, funded by Enbridge through a public safety escrow account to police pipeline protests, of the White Earth Band’s intent to adopt several 1855 Treaty Authority codes and exercise off-reservation jurisdiction for them through the White Earth Tribal Court — including, most critically, violations related to trespass that fall under the 1855 Treaty Authority’s natural resource and conservation code.

Under the conservation code, trespass is a civil violation traditionally used when someone presses charges against a tribe member who may have strayed onto private land while hunting. In asserting the tribal jurisdiction over such violations, Bibeau is arguing that any further application of state criminal law against tribal members for trespass-related violations — including those related to trespass on Enbridge pipeline easements — would deprive them of federally and tribally protected treaty rights, thus violating federal civil rights law.

He’s mimicking a system that is already in use elsewhere in northern Minnesota treaty territory: The Fond du Lac Band of Lake Superior Chippewa, which broke away from a 1988 tri-band agreement with Minnesota more than 30 years ago, runs tribal resource courts off reservation to enforce violations related to treaty conservation codes. Bibeau simply shifts White Earth’s jurisdiction from the 1854 Treaty to the 1855, following Fond du Lac’s lead in breaking away with an agreement that, in effect, paid the bands not to exercise their treaty rights.

It’s a strategy he hopes will keep LaDuke and other Indigenous Water Protectors he represents in the game, since Aitkin County’s conditions for release in her first case were contingent upon her not engaging in “same or similar” offenses. “If you’ve got a document that shows [state law enforcement agencies don’t have jurisdiction],” Bibeau says, then police will need to “think about arresting [LaDuke] again because [they] might be getting [themselves] deeper in a civil rights action.”

The fact that LaDuke’s Shell River campsite is on public lands is a huge boon to Bibeau’s legal strategy, since the right to hunt, fish and gather is that much stronger on public lands. “That’s what I like about all these state forests linking the pipeline together,” he says. “We can be everywhere in here, and so when they write a ticket, … it goes to tribal court.” Asserting jurisdiction could extend to other charges as well, he notes. “If you can’t charge someone for trespassing, then you can’t also charge them for nuisance or unlawful assembly or gathering because they have a right to be there,” he says.

As for non-Indigenous allies steadily streaming into camps like LaDuke’s in treaty territories from across the country, though, questions of equal protection begin to surface. “If you can’t charge the Indians, are you going to charge all the other people?” Bibeau says. The answer is sure to be forthcoming as the pipeline protests ramp up throughout the summer. Regardless, he says, the state is “trying to criminalize a civil law and trying to apply it, and so I’m setting up what some people call disruption law, creating another mechanism that, under federal law, should need to be followed.”

Frank Bibeau explains the White Earth Band’s legal strategy under a tepee at the new treaty camp on the banks of Shell River, on June 4, 2021.

But the treaty strategy is much more expansive than simply sending trespass violations to tribal court: The White Earth Band is also adopting 1855 Treaty Authority “Right to Travel Use and Occupy Traditional Land and Waters” and the “Right of Manoomin” codes to describe the rights of treaty beneficiaries’ engaged in activities “to conserve, manage, or protect the resources utilized by the Chippewa people.”

The codes further cement LaDuke and the White Earth Band’s right to establish a cultural and resistance camp at Shell River, as well as the tribe’s inherent right to protect Manoomin, (“wild rice” in the Ojibwe language) and the waters from which it grows. Further, Bibeau’s June 1 correspondence calls for a White Earth historical preservation officer to more closely examine the tribe’s concerns over the pipeline’s impacts on the ancient Indigenous village site and to initiate an archaeological study to determine other cultural risks associated with the pipeline.

While Enbridge did not respond to Truthout’s specific request to comment on the tribe’s notice of intent to assert its off-reservation jurisdiction, spokesperson Michael Barnes has previously stated that, “We always strive to establish good faith engagement processes in line with the concept of free, prior and informed consent.”

Not only does the company not have consent from most Chippewa bands; it doesn’t have the consent of Manoomin, of the water, of the land. It’s an argument Bibeau told Truthout he’s eyeing, potentially listing Manoomin as an official plaintiff in a lawsuit against the state agencies which granted Enbridge’s permits, including the Public Utilities Commission, the Minnesota Pollution Control Agency, the Department of Natural Resources and Gov. Tim Walz.

He’s also looking to piece together a number of other decisions, including a June 1 Supreme Court decision unanimously affirming tribal sovereignty, to sue for tribal water rights as northern Minnesota faces climate-induced drought conditions. “If we’re going to sue the state of Minnesota, then there’s only three entities that have water rights,” he says. “The state of Minnesota, the United States, and Indians. It ain’t Enbridge.”

Other court decisions from 1974 and 2018 have upheld the requirement that state and federal governments protect the environment in order to uphold treaty rights. The Supreme Court affirmed that Washington State tribes had the right to fish in off-reservation waters on ceded lands as guaranteed by the treaties of 1854 and 1855 in its 1974 Boldt decision. Building on that legal framework, the court ordered the state in 2018 to remove drainage culverts that prevented salmon migration.

Opponents of Enbridge’s Line 5 in Wisconsin and Michigan, part of the same system of pipelines as Line 3, likewise argue that treaties offer the same kinds of protections. Significantly, Michigan Gov. Gretchen Whitmer invoked the state and federal government’s obligation to honor treaty rights when she revoked Enbridge’s Line 5 easement under the Straits of Mackinac in November 2020. Enbridge has so far refused to obey Whitmer’s shutdown order, however. The company is currently in court-ordered mediation with the state.

Red Lake Band of Chippewa Indians attorney Joe Plummer tells Truthout that treaty rights have been a part of every suit the tribe has brought against Line 3 so far. The Treaty of 1863, which Plummer explains the tribe was coerced into signing under the barrel of Gatling guns during the Civil War, grants Red Lake off-reservation rights to hunt, fish and gather.

“Tribes have the right to do all these gathering activities. In order to make it so those rights will last a little longer, you need to have lands that are productive and clean and not polluted, and that’s how we invoke our rights in this instance,” Plummer says, referring to legal challenges against Line 3.

While the Public Utilities Commission acknowledged the tribe’s 1863 Treaty rights during its review of the project, it didn’t stop the agency from greenlighting the pipeline. “They did not have the background, experience or knowledge, or have their eyes open enough to be able to put the proper weight on those rights,” Plummer says. “All they know is that Minnesota became a state in 1858, and all of these Minnesota laws that they’re applying right now don’t say anything about tribal rights.”

The Minnesota Court of Appeals is expected to rule by June 21 on Red Lake and White Earth Nations’ legal challenge with the Minnesota Department of Commerce arguing Enbridge failed to meet legal requirements showing need for the pipeline. Red Lake and White Earth have at least two other pending challenges over the pipeline in state and federal courts.

Will Biden Intervene?

In the meantime, it’s possible Department of Justice (DOJ) officials, who were included in Bibeau’s recent legal correspondence, will side with his interpretation of the tribe’s 1855 Treaty rights. Bibeau has been working with the DOJ’s Office of Tribal Justice, telling Truthout some officials were present at the weekend’s Treaty People Gathering in northern Minnesota to interview tribal members as part of an investigatory assessment in order to make recommendations to the Biden administration.

Recognizing tribal treaty rights when it comes to Line 3 may be the administration’s only shot at “preventing another DAPL,” Bibeau says, referring to the historic standoff over the Dakota Access Pipeline at the Standing Rock Sioux Reservation in 2017.

In addition to treaty rights issues, Water Protector LaDuke says the unprecedented heat wave and drought in northern Minnesota gives the Biden administration an opportunity to order a more comprehensive federal Environmental Impact Statement be conducted. “The circumstances under which they approved this, this doesn’t pass a climate test,” she says.

For her, what’s happening economically is just as important as legal strategy: The Saudi Sovereign Wealth Fund, she notes, sold interests in the tar sands last month — something she was explaining to a DOJ official she spoke with in advance of the weekend’s gathering.

Ultimately though, LaDuke isn’t holding out for a legal “silver bullet,” pointing out that the legal system has failed Indigenous peoples for hundreds of years, and that tribes and environmental advocates have already exhausted every legal avenue against the pipeline. “I tried for seven years to make the system work, and now I’m sittin’ on the river,” she tells Truthout. “But you know, there’s a lot people who will come and sit on the river with me basically, and I feel like, at Standing Rock, we learned a lot.”

Indeed, the Standing Rock Sioux also argued that the Dakota Access Pipeline violated Article II of the Fort Laramie Treaty, which guarantees “undisturbed use and occupation” of reservation lands surrounding the pipeline’s route.