Treaties, Indigenous Land and Resource Rights in the Great Lakes and Enbridge’s Line 5 Pipeline: Interview with Whitney Gravelle
By Christen Corcoran
This summer, Global Land Alliance (GLA[1]) spoke with Whitney Gravelle, president of the Bay Mills Indian Community in Michigan, and Aurora Conley, vice chair of the Anishinaabe Environmental Protection Alliance and of the Bad River Band of Lake Superior Chippewa in Wisconsin. We discussed with community leaders to better understand their voices, actions and leadership in the struggle against encroachment from Enbridge Energy Corporation. We also explored, how different levels of the US government handled treaty rights in their ceded and unceded territories, consulted or sought Free, Prior and Informed Consent (FPIC) processes, and how they see the Line 5 pipeline interacting with sovereignty over the land and waters their communities have long stewarded.
Land and Treaty Rights
The entire United States of America is built on land that was once, or continues to be, sovereign Native land. Land rights, natural resource rights and borders have been historically negotiated with Native nations through treaty negotiations or theft.
Treaties are nation-to-nation agreements among sovereign entities: political groups with the ability to set rules for their own communities, determine their own membership, care for their own territory, and enter agreements with other sovereign entities[2]. The inherent and sovereign rights and obligations of entities who are party to treaties are retained unless they have been explicitly relinquished via treaty. In the earliest encounters, formal dealings between the United States government and tribal nations were conducted almost exclusively by treaty making. Between 1778 and 1868, approximately 370 treaties were ratified between the United States and tribal nations.[3]
Early on, treaties were designed to develop political alliances. From 1774 until about 1832, treaties between individual, sovereign native Nations and the United States governments were negotiated to establish borders with one another, and agree on conditions of behavior between the parties. As sovereign entities, native groups and communities conducted international diplomacy with other native groups, before and during the treaty-signing era with the US. Non-tribal citizens were required to have a passport to cross these sovereign lands.
Treaty negotiations with the U.S. ended in a mutually signed pact which had to be approved by the U.S. Congress. These treaties, so important, are codified into the constitution of the United States:
Article VI of the US constitution states “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
As the United States expanded its military strength, it used the treaty-making process to remove native communities from their homelands and to create reservations in an effort to make room for the growing population of settlers. From 1832 until 1871, native nations were considered to be domestic, dependent tribes. Negotiated treaties between tribes and the U.S. had to be approved by the U.S. Congress. In 1871, the House of Representatives ceased recognition of individual tribes within the U.S. as independent nations with whom the United States could contract by treaty, ending the nearly 100 year old practice of treaty-making between the U.S. and tribal nations.[4] The sovereignty of native nations existed before the US existed, it was retained in part through treaties, it exists today.
Some treaties transferred control of land from native nations to United States control in exchange for certain rights. For example, under the Treaty of Washington in 1836 Anishinaabe nations ceded an area of 13,837,207 acres in what is now known as Michigan[5]. In return, the treaty guaranteed the Anishnaabeg permanent reservation lands and perpetual access to natural resources, including hunting and fishing rights. The United States agreed to pay for the land and provide additional services, including use of a dormitory constructed on Mackinac Island. The area ceded to the U.S. government by the 1836 Treaty of Washington represents almost 40% of the current land area of the state of Michigan. More recently, tribal members have called upon the provisions of the Treaty of Washington to protect their traditional fishing rights on the Great Lakes.
“I understand what you want... from the few words I have heard you speak. You want land.”
While treaties between Native nations and the US government may have been conveniently portrayed as something from history books, there is a growing recognition of treaty responsibilities to the first nations peoples of this land. Generations of non-Native people have gained wealth through resource extraction and land ownership. Colonization continues to this day with further land-takings from Indigenous communities and ongoing cultural genocide, along with exploitation of natural resources such as mining, destruction of forests for timber, pollution of water, destruction of wetlands, endangerment of wild rice beds and fisheries, and placement of hazardous infrastructure like mines and pipelines. Consequences of this ongoing exploitation have caused loss of biodiversity and environmental and racial injustice, endangering human rights and the planet.
Map by Carl Sack
In both Michigan and Wisconsin, Indigenous communities have been raising concerns for years about the encroachment of their treaty rights around the Line 5 pipeline. Built in 1953 and designed to last 50 years, the Line 5 pipeline runs from Superior, Wisconsin, across the Upper Peninsula of Michigan, through the open waters of Straits of Mackinac, and across the Lower Peninsula, before crossing under the St. Clair River to refineries in Sarnia, Ontario. The pipeline is managed by Enbridge, an $85.64 billion Canadian-based energy company which maintains a network of pipelines and infrastructure projects throughout North America. The 30-inch-diameter steel pipeline splits into two 20-inch-diameter pipes when crossing the Straits, carrying nearly 23 million gallons of oil and natural gas liquids daily through fragile ecosystems. Line 5 has ruptured at least 33 times since 1968, spilling at least 1.13 million gallons of oil on land and in wetlands. Now, Enbridge seeks to do multiple projects along the pipeline; including a reroute of the pipeline in Wisconsin and a tunnel project or dual pipeline project in Michigan. The Line 5 Pipeline and its proposed construction threatens tribal land, treaty rights in the ceded territory, the Great Lakes, and the climate.
Global Land Alliance spoke with Whitney Gravelle, president of the Bay Mills Indian Community, on the frontlines of this encroachment in Michigan to understand how they view land, natural resources and treaty rights and if they are or are not being upheld.
Photo showing the Straits of Mackinac with red line depicting the dual pipelines their current location
Interview with Whitney Gravelle
Could you introduce yourself in your own words:
My name is Whitney Gravelle. I currently serve as the president of Bay Mills Indian Community. I am a tribal citizen of Bay Mills as well. Our traditional name is Gnoozhekanning, which means “the place where the pike are plentiful.” Our English name is Bay Mills Indian Community. Prior to my current position, I actually served as in-house counsel for Bay Mills Indian Community. So I'm an attorney by trade, and I worked on the Line 5 issues representing the tribe, and now I also work on the Line 5 Issues just representing the tribe in a different capacity.
Could you share how Enbridge’s Line 5 has affected you and what has been your relationship with it up until this point?
I really call the Line 5 issues three dimensional chess. There are a lot of things going on with Line 5, and then you also need to separate the Line 5 dual pipeline from the Line 5 tunnel project. There's several permits, there's several litigations that are taking place, and then if you connect Line 5 to Line 3, which it does, the project becomes even more complicated and convoluted with everything that's going on. So I can kind of start with a broad overview or at least offer the tribal perspective as it relates.
The Bay Mills Indian Community has been involved in the Line 5 issues for a number of years now, essentially since 2011. 2011 is when the Line 6B spill occurred in the Kalamazoo River, which was also done by Enbridge. And honestly, when that spill happened, it felt like there was a collective awakening in the state of Michigan where everyone said: ‘We have pipelines? Where are they? Everyone really focused their attention to it because the Kalamazoo River spill was just so catastrophic and it was so close to breaching and entering Lake Michigan. It caused irreparable damage but the scope and the impact of that damage could have been far greater or far worse. So since that time, Bay Mills Indian Community has been very active and vocal in the decommissioning of the Line 5 dual pipelines. And now we are also active in preventing the Line 5 tunnel project from moving forward.
Source: US EPA, Depicting a massive oil spill from the Line 6B Enbridge pipeline in 2010, discovered in Talmadge Creek, a small tributary to the Kalamazoo River near Marshall, Michigan
Bay Mills Indian Community is a Tribal Nation. We're located in the Upper Peninsula. We're Indigenous people that have lived on this land since time immemorial; and we're also signatories to the 1836 treaty of Washington. In that treaty, we ceded 13 million acres of land and 14 million acres of water to the United States for the creation of the state of Michigan. So when you do your handy dandy Michigan map of the lower peninsula [Gravelle holds her hand up to represent the shape of Michigan], half of the lower peninsula north and on the eastern peninsula more than half east is our treaty ceded territory. Michigan would not have become a state without that treaty. They were too small at the time, they were just a territory. They were trying to join the union. It was through that treaty that they gained their statehood. If you look it was in 1837, just a year later, when Michigan was granted their statehood.
This map shows the ceded areas of Michigan and 3 Great Lakes under the 1836 Treaty. (Map by Mike Ripley)
An important piece of that treaty that our ancestors negotiated were the continuing rights to fish, hunt, and gather throughout that ceded territory. The treaty actually says the ‘usual uses of occupancy of the land’, which was interpreted to mean that treaty right to fish, hunting, gather.
Oftentimes when you talk about the treaty right to fish, people think of the physical act of fishing. They imagine you're out on a boat. For some folks, they think of a line, you're recreationally fishing, or they think of a net that you would dip in the water. But for Indigenous people, it's really a lot more tied to our way of life. So it's not just the act of fishing. One of our elders down at the Little Traverse Bay Bands of Odawa Indians, Frank Ettawageshik, he always likes to say: We have a treaty right to play with fish, laugh with fish, swim with fish, dance with fish. Because that is how we integrate those teachings into our understanding of the world. It's not just about fishing. It's about being with your elders, receiving those teachings, understanding your place in the line of creation, knowing to give thanks to specific resources for what they provide you, and learning to live in harmony with the land.
Every society has a creation story. Our people, Anishinaabe people, have our own creation story as well. And for that creation story, it takes place in the Straits of Mackinac, where the dual pipelines run. We call that the heart of Turtle Island because it's the heart of where North America was created in that creation story. So for Bay Mills, for a lot of Indigenous people and tribal nations, that is the sacred place. If I were to try to call it something that Western society might be familiar with, you would think of the Garden of Eden as a comparison. That's the sacredness that place holds. That's our relationship with that land, the water, why we got involved in the Line 5 fight. And Line 5 has already spilled a lot of oil in its lifetime, and we're trying to prevent the catastrophic damage from even a reality of ever happening.
“We have a treaty right to play with fish, laugh with fish, swim with fish, dance with fish. Because that is how we integrate those teachings into our understanding of the world. It’s not just about fishing. It’s about being with your elders, receiving those teachings, understanding your place in the line of creation, knowing to give thanks to specific resources for what they provide you, and learning to live in harmony with the land. ”
If there was ever an oil spill in the Straits of Mackinac, I’d call it the heart attack because of its impact on all of North America– it would cause so much catastrophic damage. It's not anything that we ever want to witness in our lifetime.
Safe to say, it's evident that Line 5 and the proposed Line 5 tunnel has a lot of potential to impact you and your community. And I'm just wondering, were at any point you consulted about this project, including the rights to do it?
The original pipeline was built in 1953 and no tribe was consulted at that time. No tribe was made aware of it. Understanding as well that our treaty rights had not been litigated. And tribal consultation is more of a new thing. Okay, we'll give them that. In 1953, they didn't do anything.
Since then, the company themselves, Enbridge, has not ever consulted or asked permission of the tribes. The state agencies have their own consultation policies. The same for federal agencies, but that's different from asking for permission. And then I do think that there's a huge difference in what tribal people view consultation as versus how state and federal agencies view tribal consultation.
Could you go into that a bit more? Because there are certain obligations, of course, for free prior informed consent. And we know consultation isn't consent. Do you feel like those processes either happened or were attempted? Or how do you feel like the Michigan government handled that situation?
For a lot of state and federal agencies, consultation is a check box, right? We met with the tribes, heard from them. They object. They always object. And it's like, whatever. We did our due diligence.
What's really frustrating about that is when Tribes ask for further or even greater consultation. A lot of the burden is placed on the tribes. And it's really important to understand that historically tribes have lived in poverty. We don't have a lot of resources, we don't have a lot of capacity. And it's almost like we have this overwhelming burden that we have to prove to the state to not take an action. It's like there's a presumption that the permit or the action will happen, and then the burden falls on the tribes to then create a cumulative body of evidence that can convince the state agency not to take the action. It's really unfair because in true consultation, it should be the state and the federal agencies that are carrying that burden to prove to the tribes why something should proceed, not the other way around. And that's really the major difference that I think exists between how tribes view consultation versus how state or federal agencies view it.
“It should be the state and the federal agencies that are carrying that burden to prove to the tribes why something should proceed, not the other way around. And that’s really the major difference that I think exists between how tribes view consultation versus how state or federal agencies view it.”
Has the federal government been involved with this at all?
We've spoken to quite a few federal agencies. The US Army Corps of Engineers is one of the permitting agencies for the tunnel project. We've talked to the Environmental Protection Agency (EPA). We've talked to the Pipeline and Hazardous Materials Safety Administration (PHMSA), we've talked to the Department of Transportation (DoT). But what we see in a lot of those conversations is that you will hear from federal agencies: PHMSA regulates what goes through the pipeline, and EPA regulates if there's a land spill. But the Coast Guard will regulate if there's a water spill. And the Army Corps only regulates waters of the United States. And if you're going to be offsetting sediments and other things from construction, talk to Environment, Great Lakes, and Energy (EGLE), which has the Clean Water Act authority that has been delegated from EPA. You get a lot of everyone else saying, ‘oh, well, your concerns lie with this other agency’. Truthfully, when you go back to those treaty obligations, the United States as a whole has the treaty trust responsibility, and every single one of those agencies is the United States. So the question I always ask is: at what point will all of those agencies come together and then take action as the United States in order to protect the treaty rights and fulfill their treaty trust responsibility?
I have noticed that when potential treaty violations or overreaches occur, there’s a pattern where state actors will say things like, ‘well, the treaty is held by the federal government, not with us, so we don't have to uphold that’. Are you hearing anything like that?
I've heard that before. I won't say the state of Michigan necessarily says that to us now. We have heard from EGLE in some circumstances because oftentimes when we engage in consultation, we will ask the state or federal agency: `Has an analysis been done on the impacts to treaty rights before you make this decision?” And so that's where you kind of get into agencies asserting the United States is the one who holds the treaty trust responsibility. Then we'll say to the State of Michigan ‘but you have a duty to preserve and protect that resource so that it can continue to be exercised under the treaty right’.
One really cool thing that happened in the Line 5 saga is when the state of Michigan issued the easement revocation with the Michigan Department of Natural Resources, there was a line in that easement revocation where they called to those treaty rights. It wasn't a definitive reason, there was more to it. It was a cumulative understanding of why they were revoking the easement. But there is a line in there where it states treaty rights are held by the tribes and the waters of the Great Lakes that this could harm.
So when we talk about these treaty rights and for Bay Mills Indian Community, would you consider that the territory is well defined?
Oh, yeah, absolutely. We have our ceded territory. We know those boundaries. The treaty rights are exercised throughout the treaty ceded territory both on land and on water. We know where we can go and what we can do and how much we can do in every part of our territory.
Within that treaty territory, you've mentioned the Straits of Mackinac, are there sacred or cultural sites that are of particular salience for this fight against Line 5?
There's hundreds of cultural sites throughout Michigan that are directly tied to Anishinaabe people. When we talk about the Straits of Mackinac, what we're really talking about is the idea of a traditional cultural property because there's a very clear distinction between what Indigenous people value as cultural, sacred, or historic versus what Western society values. Western society typically tends to look at physical structures. When you look at a historic site; you may think of a building, or it has a foundation, or there's some type of structure. That can be when you tie a definition to it: like a church. it can be a physical structure in which you go into worship and pray.
That's not always the case for Indigenous people. Sometimes a landscape or a body of water or some other natural feature in the land can be identified as sacred or cultural because that's where you go to perform ceremony, or that's where you have a story or a teaching that describes your interconnectedness with the land. You know that you go to this area in order to do these certain things because that is the way that you were taught.
A lot of people don't realize but the state of Michigan actually is very old. Even though it didn't become a state until 1837, it's been established a lot longer because of the French fur trade. When a lot of people think of western expansion, they think folks came up through the south, which they did, but they first came through the north because of the French fur trade. And so the Straits of Mackinac is like this centerpiece (even leaving out our creation story), but it's also the centerpiece of thousands of years of cultural interaction, commercial trade, harvest, even battles and wars and other fights that took place because that's what was all going on there. It's literally the center crux of that French fur trade, which drove much of the economy back in the day. The city of Sault Ste. Marie was established in 1668, which is pretty old. When you look at the colonies on the east coast, those are around about 1620. We were here a lot longer than that. So when you culminate all of that, whether you're talking about burial mounds, or you're talking about ceremonial grounds, or other artifacts, those exist throughout the state of Michigan and then especially throughout the Straits area.
Photo depicting a protest against Line 5 in Mackinac City in 2021, image credit Bay Mills Indian Community
Along this theme, then what does and what would the Line 5 represent to these sorts of sites or your culture or even livelihoods? How do they affect one another?
We have this prophecy. There's actually seven prophecies that were given to the Anishinaabe, and one of them talks about a black snake, and that black snake would come through if it was not defeated and destroy Indigenous people, it would destroy Indigenous lifeways. And as this fight has been unfolding, a lot of people have wondered or assumed that that prophecy of that black snake is talking about Line 5 because it runs through the heart of turtle island. It's here in the Great Lakes, the largest freshwater body resource.
When I think of what Line 5 would do to our quality of life, what it's already doing to our quality of life, I think of our ancestors who negotiated that treaty. They negotiated that treaty in order to preserve and protect a way of life, because they knew if we had those things, that we would be able to continue to exist as a people. They understood that this is how we live, this is how we operate. So these are the things that we need to protect.
So when I think of Line 5 being able to destroy those things, I see a way of life also being destroyed. I see our fishermen not being able to go out and harvest fish, not being able to eat, not being able to gather traditional medicines, not being able to hunt because the land in the water is poisoned. And when you can't go out and perform those things. You know, again, looking back, it's not just the right to fish, to play with fish, laugh with fish, dance with fish. We lose all of those teachings that follow with it to speak really specifically to whitefish. In the Lakes, we have so many teachings that are wrapped up in whitefish. As Indigenous people, we have our clans. You have a bear, turtle, crane, wolf clan. And a long time ago (this is another one of our teachings) there used to be a whitefish clan. And in the time of famine, the Creator told the whitefish clan that they had a way to save the people. And what the Creator did is he asked the whitefish clan to sacrifice themselves by walking into the water. And in their sacrifice, they turned into whitefish. And so, that teaching says that as long as we have whitefish available, we will never go hungry, because the whitefish will always be there to feed our people.
We use whitefish, not only as a means to have a job, or engage in commerce and trade, to eat it as a subsistence form of food: we use whitefish for ceremony. One really specific example, again with whitefish, is when we get our first thunder in spring, you will take a white fish and you'll go out and put it in a tree to say thank you to the Thunderbirds who brought the first thunders. When a newborn child is moving from breast milk into solid food, one of the first meals that they're given is Whitefish because it's to welcome them and give thanks to that traditional food. When I think of all of that, I can't see anything other than the wholesale destruction of those lifeways if Line 5 is allowed to continue to exist.
I wondered if I could ask, what are you currently working on? Or what does the next few months look like for you?
The three dimensional chess.
Bay Mills is involved in a lot. We have a really big team now. When we first started, it was just a few of us, and now we have a whole team dedicated to the Line 5 issues. I'll focus on the tunnel first, and then I'll move to the Line 5 dual pipeline stuff. We are an intervening party before the Michigan Public Service Commission, which is litigation. The Michigan Public Service Commission will decide if the dual pipelines can be placed into a tunnel. They're determining, is there a public need for it? We're a litigating party before the Michigan Public Service Commission. Now, we filed a contested case petition against the Environment, Great Lakes and Energy Department for the state of Michigan, because in January 202 they approved the first set of permits for the tunnel project. We filed a contested case petition challenging that decision. We're also a cooperating agency with the US Army Corps of Engineers as they're going through their Section 106 environmental Impact Statement process for the second permit for the Title project.
We've been consulting and we've engaged in tribal consultation with the Mackinac Strait Corridor Authority, with the Environmental Protection Agency, with PHMSA, all on the tunnel or the Line 5 litigation. We haven't become a litigating party yet because we thought it was more important to focus on the tunnel because there's two theories behind the tunnel: (1) that the tunnel is a red herring, that they're saying they're going to build it so that they can extend the life of the Line 5. And then (2) if they build the tunnel and they invest that hundreds of millions of dollars into tunnel infrastructure, what it's going to actually do is then require them to invest into the continuation of Line 5 all together– even though it's well past the age of its lifeline. We don't want Line 5 to continue to run throughout the state of Michigan. And so stopping that tunnel and stopping that reinvestment into Line 5 is something that we're trying to prevent. As you are probably aware, they revoked the easement.
There were three cases taking place. The first one, Attorney General Dana Nessel, sued Enbridge for violation of the public trust doctrine. The second one, Governor Whitmer, sued Enbridge for the violation of the easement revocation. And then Enbridge sued Governor Whitmer in federal court, stating that federal law preempted the easement reputation. And there were a few other claims made. Attorney General Dana Nessel's public trust doctrine case is continuing. Enbridge asked for that case to be removed to federal court. Those two federal cases: Enbridge suing Whitmer, and whether or not Attorney General Dana Nessel's case belongs in federal or state court are currently pending before Judge Nest in federal court. That litigation is taking place, and in subsequent parts of that litigation Bay Mills and several other tribes have filed in the amicus brief in order to support the arguments of the state of Michigan.
How can people support if they want to be in alignment with, or allies to, Bay Mills and this fight. What would be recommendations that you'd have for folks? Or are there any asks that are out there right now?
Right now, we've been trying to coordinate some written comments to the Michigan Public Service Commission. They have not yet made a decision on that, and they're accepting public comments until they make such a decision. So that's one actionable item I can see. Folks can write a letter to the Michigan Public Service Commission.
But before you do that, I really encourage folks to first learn and educate themselves about Indigenous people in Michigan, maybe about treaty rights, maybe about water, especially about how interconnected the waters of the Great Lakes are. It is like everything is connected to have a spill in one water tributary on land. We'll connect to the Great Lake somehow. To have a spill in the Great Lakes will somehow impact the river mouths of some water tributary somewhere for folks to learn about those issues.
We also have an election coming up this fall. Are you calling your representatives? Are you talking to are you educating yourself on the candidates that are running? Is there anything can you attend a town hall? Can you have conversations with your local units of government?
When you ask any Michigan person, any Great Lakes person, they love and they respect the Great Lakes, whether it's for recreation, whether it's to walk on the beach or go on vacation or go swimming. I just don't understand how that doesn't translate into this needs to stop.
Credits and footnotes:
cover photo depicts an Enbridge Eviction Event, May 2021. Image credit: Bay Mills Indian Community
[1] Although GLA has worked up until now with communities primarily outside of our home in North America - we understand that Indigenous rights to land and natural resources are fundamental, unresolved issues for social and environmental justice in the US and Canada. We are joining discussions around the growing recognition of treaty responsibilities to Native people among climate and racial justice advocates as the fossil fuel industry encroaches communities to insert pipeline projects for oil and gas which threatens water, land and cultural resources and perpetuate reliance on greenhouse-gas emitting fossil fuels
[2] Minnesota Indian Affairs Council https://treatiesmatter.org/treaties
[3] Thompson, Douglas (2020) “The Right to Hunt and Fish” https://www.1854treatyauthority.org/images/ToHuntandFish.updated2020.pdf
[4] Source: National Archives- American Indian Treaties via Cedarville Band of Piscataway
[5] https://www.mackinacparks.com/how-michigan-became-a-state-the-treaty-of-washington-1836/