U.S. Courts Must Uphold Rights of Michigan’s Indigenous Peoples in Tar Sands and Pipeline Cases

by Casey Patnode

The Alberta tar sands, an industrial project that spans an area larger than the country of England, and its associated infrastructure are a massive public health and environmental justice threat. The pollution from this industry is causing dramatically increased cancer rates, among many other toxic effects. Line 3 as well as Line 5 in our own state are infrastructure supporting the tar sands, which are putting water and food supplies, particularly for Indigenous people, at risk. This industry represents a global threat as well by accelerating climate change, the most severe threat to global health of the 21^st century. 

Not only are the effects of the tar sands and pipelines untenable, their operation is also violating treaties signed with Indigenous peoples that have been the law of the lands for over 100 years. The operation area of the tar sands is within the territories of Treaty 6 and Treaty 8. Line 3 is being constructed within the territory of the Treaty of 1855, and Line 5 lies within the territory of the Treaty of 1836 made with the Ojibwe and Odawa nations.

These treaties protect the rights to fishing and hunting that the livelihood of the Indigenous peoples depend upon. However, the effects of the tar sands have driven down caribou populations and poisoned the fish of the area. A spill of Line 5 could affect a significant amount of shoreline and open water area in either Lake Michigan or Lake Huron in a very short time, and would put the population of fish in the Great Lakes in danger. Line 3 represents a threat to the wild rice industry that the Ojibwe and other peoples rely upon.

Even where treaties may allow tracts of land to be used for mining or other purposes, as in the case of Treaties 6 and 8, the rights to hunting and fishing on unoccupied land have been upheld. This has been established the case of R. v. Badger in 1996, which also established that the words of treaties must be interpreted as they naturally would have been understood by the Indigenous peoples at the time of signing. This principle has also been established in the United States, through the United States v. State of Michigan case of 1979.

Lands that are not visibly occupied are still being affected by this industry in a way that it is threatening the livelihood of the people in the region. Furthermore, at the time of signing, it would have been understood that the treaties protect the rights not just to cast one’s net for fish or to search for caribou, they protect the environment necessary to sustain these vocations and livelihoods on the unoccupied land.

It therefore appears clear that the language of the treaties would disallow the effects of an operation such as the present-day tar sands and pipelines. The amount of doubt that could be cast regarding this interpretation is, at most, that it is ambiguous. Along these lines, it has been established in R. v. Badger as well as in multiple cases in the U.S. Supreme Court that any ambiguities must be resolved in favor of the Indigenous people, so this principle must apply in these situations.

The operations of both Line 5 and the tar sands are currently embroiled in legal cases. Governor Whitmer set a deadline of May 12 for Enbridge to shut down Line 5. Enbridge has not abided by this. The company continues to operate Line 5, and the dispute is pending in U.S. District Court.

The Beaver Lake Cree Nation have filed suit against the governments of Alberta and Canada for violation of their treaty rights. They are currently engaged a legal battle that has been ongoing for more than a decade and is currently in the Supreme Court. The status is that they are in appeal for advanced costs, as the $3 million in legal fees to this point have led the nation to not be able to afford pursuing the case further. Their access to the pursuit of justice is in peril, compounding the environmental justice issues inherent in this situation.

The courts in both cases must make the right decision and rule in favor of the Indigenous nations, as their rights are being violated. Additionally, the United States must shut down production of Line 3 to stop supporting the illegal operation of the tar sands, and to cease violation of Indigenous treaty rights in Minnesota. There is a long history of injustices against Indigenous peoples in North America; the opportunity must be seized to stop these present-day injustices, promoting health within these regions and globally by doing so.

Casey Patnode is a dual degree candidate in the University of Michigan Medical School and the University of Michigan School of Public Health.