Wednesday, June 24, 2015

Eminent domain vs Indian Treaty Rights

There was a time when this would not have ever been discussed much less brought to the attention of the public at large. Unless, the public managed to notice a price hike and/or reduced supply of wild rice. But now we have an Indian nation hoping to use "rights" granted by treaty to stop Enbridge from trashing their wild rice lakes for a pipeline route.

But those ancient rice beds face an unsure future: The proposed $2.6 billion Sandpiper crude oil pipeline, if built, will carry petroleum from the Bakken oilfields in North Dakota through Minnesota to refineries in Wisconsin, cutting through the heart of the White Earth Nation’s wild rice beds.

To secure the route, Enbridge Inc., the company overseeing the pipeline, hopes to exercise the power of eminent domain, the right to take land from owners who refuse to sell to them — in this case, the White Earth Nation.

To stop the pipeline, the White Earth Nation is invoking its treaty rights. Building the Sandpiper pipeline, its members say, in addition to possible breaks and spills, would violate their rights to use the land for hunting, fishing or harvesting wild rice — rights established by treaty.

The fundamental divide between Enbridge and the White Earth Nation reflects the increasingly combative debate over oil pipelines and Indian Country, from the Keystone XL to the Prince Rupert in Canada. And on White Earth, the Sandpiper, in some circles, has become a surrogate for a broader fight to protect wild rice, the environment and the Anishinaabe way of life.

“It’s an iron spike through the heart of the wild rice beds,” said Bob Shimek, the executive director of the White Earth Land Recovery Project. “It is an iron spike through the heart of the Anishinaabe and the way of life that wild rice supports. That is what is at stake here.”

To understand White Earth’s treaty rights claim, we have to rewind 25 years.

In 1990 the Mille Lacs Band of Chippewa Indians filed suit against Minnesota after numerous tribal citizens were arrested for hunting and fishing off reservation. According to an 1837 treaty with the Chippewa, in exchange for the cession of land, tribal members retained usufructuary rights, entitling them to hunt, fish and gather wild rice on lands they gave up.

In 1990, Minnesota maintained that those rights were extinguished with the signing of an 1855 treaty. After years of court battles, the Supreme Court in 1999 concluded that the Chippewa, including the White Earth Nation, retained usufructuary rights and tribal members could hunt, fish and gather wild rice on lands they ceded.
White Earth, pipeline
Tribal attorney Joe Plumer and a map of the 1855 treaty boundaries.Jolene Yazzie

“Usufructuary rights, through Supreme Court case law, are property rights,” said Joe Plumer an attorney with the White Earth Nation. “They’re property rights that cannot be taken away without just compensation.”

In other words, the building of a pipeline through White Earth’s wild rice stands could have severe effects on tribal members’ ability to harvest — a right guaranteed under the 1837 treaty and upheld by the Supreme Court. The thing about treaties is that they’re the “supreme law of the land.” At least that’s what Article VI of the Constitution says, and without compensation for those rights, White Earth says, the Sandpiper is violating the treaty.

“Those treaties were consummated before Minnesota was a state. They are between the Ojibwe people and the federal government,” said Plumer. “In exchange for our ancestors ceding this territory to the United States, we retained these usufructuary rights.”
Wild ricing rights versus crude oil spillage rights. Looked at that way, it seems a no brainer, but Enbridge, despite a dismal history of pipeline spills, is able to continue getting permissions for news pipelines. One has to wonder what account is used to cover the cost of the "grease" to get those permissions.


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