FIGHT FOR YOUR RIGHT

The Pipeline Fight Pitting Native Americans Against Big Oil

Enbridge, Inc. claims Indians don’t own the land on their reservation, which they want to gobble up to send crude across Minnesota.

02.02.15 10:45 AM ET

CROOKSTON, MINN. — On a map in the crowded conference room of a hotel, Winona LaDuke pointed to a tiny tract of land in the northeast corner of the White Earth Indian Reservation. The area, home to the wild rice that feeds the tribe and helps to pay its bills through deals with retailers like Whole Foods, is miniscule in comparison to the counties that surround it, but it’s worth millions to an oil company and the state.

LaDuke’s beloved land—an area of about four square miles—makes up 10 percent of the reservation. The territory is at the center of a dispute between the White Earth tribe and Enbridge, the Canadian company that wants to construct an oil pipeline across the state of Minnesota. Called the Sandpiper, the pipeline will carry crude oil from North Dakota to the port of Superior, Wisconsin. LaDuke said Enbridge will make this jaunt by cutting across the northeast corner of her reservation.

“I’m here today to pretend the system works,” LaDuke announced to a panel in Crookston, that included a state judge, representatives from Enbridge and members of the state’s Public Utilities Commission (PUC). “I want to pretend there aren’t hundreds of pipes sitting in the area, ready to be put into the ground for a pipeline that hasn’t been approved.”

While Enbridge has secured easements for 92 percent of the properties along the pipeline’s route, LaDuke and her allies contend the company will stomp on tribal sovereignty by crossing White Earth land. Not so, said Enbridge spokeswoman Lorraine Little.

“The proposed Sandpiper pipeline route does not cross the White Earth Reservation,” Little wrote in an email. “There may be some properties that fall within the tribe’s definition of ceded territories, but we negotiate with the current property landowner to secure easement agreements.”

Originally within the boundaries of the reservation, there are four townships being fought over—just a fraction of the proposed 610-mile Sandpiper route. A 1980 hunting rights case essentially removed those townships from the reservation—at least, for Enbridge, that is.

Frank Bibeau, the tribe’s attorney and a White Earth member like LaDuke, contends otherwise. LaDuke, adamant in her opposition to the Sandpiper not just on Indian rights but environmental grounds, has been a fixture at public hearings across the state in recent months—a furor of jet black hair, dangling jewelry and controlled incredulity that belies her anger over what she said is a blatant violation of tribal sovereignty.

“They have some legal right in the sense that they have a permit from the state for eminent domain,” said, Bibeau. “But we have treaty rights that we believe require our consent to be given before they start putting pipes in the ground.”

It’s a sticky legal situation—one that involves a 1980 federal case over hunting rights, and decades of back-and-forth between the tribe, Enbridge, the PUC and the state. But what’s at stake for White Earth mirrors the controversy over TransCanada’s Keystone XL pipeline, and whether it’s up to landowners to decide what happens on their property or judges, as was the case of a recent Nebraska Supreme Court ruling on the Keystone.

“On the one hand, the whole theory of why they’re saying they need to come across [the state] is a hoax, and they’re using that as a springboard to run over our treaty rights and essentially disregard them,” Bibeau said, going on to note the recent drop in oil prices. “If we’re already having gas at less than $2 a gallon, what is the need for having a new pipeline coming through the state in 2017?”

The answers—like the arguments being pushed by pro-Keystone groups and politicians—are profit for Enbridge, tax revenue for the state, and jobs for workers in Minnesota and North Dakota. Along with an estimated $69 million in property taxes paid by Enbridge thanks to the addition of the pipeline, the company contends the project will create 3,000 construction jobs along the Sandpiper’s 610-mile route. If LaDuke and Bibeau lose their fight, it will likely be because of the confusing nature of the laws surrounding the land in question—that corner of White Earth LaDuke is so worked up over. But they’re not the only ones battling Enbridge.

The other 8 percent of territory—held by stubborn landowners and farmers who are holding out for myriad reasons—will soon be in the hands of the PUC. That’s because Enbridge is applying for a “certificate of need,” basically arguing that the PUC give the company eminent domain to the remaining land. That tiny eight percent may not last much longer, and when it goes, so too will LaDuke’s corner of White Earth.

“Enbridge doesn’t have rights to our land,” she told me during a break in the Crookston hearing. “Their plan is quite simply illegal.”

Sandpiper has been in the works for years, but only recently have public hearings like the one in Crookston last Monday begun. They have been filled with sometimes unruly debate over many of the same issues the country has grappled with regarding the Keystone XL—climate change, environmental concerns, dependence on foreign oil, the need for jobs and, most importantly for LaDuke, Bibeau and their allies, tribal sovereignty.

“Really, they’re crossing within the original boundaries of the reservation, and their argument is that this [1980 hunting rights] court case pulled those areas out of the reservation,” Bibeau said of Enbridge’s plan. “The white people essentially say they took it in a different way than they took other stuff from us.”

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This has happened before, according to Bibeau, although in a different way. As the federal government stepped away from Indian affairs in the 1950s and 1960s, Bibeau said, more autonomy was given to tribes like the Chippewa, which was eventually split into six different bands in Minnesota. All those factions—White Earth among them—began taking more legal responsibility over their lands. It was confusing and chaotic, Bibeau said. And one of the results of that disorder was a misunderstanding of treaty rights. Meanwhile, Enbridge, through a combination of legal maneuvering and land-buying, set up shop in Indian country, prompting the situation Bibeau and others face today.

“There wasn’t a real strong understanding of what was occurring, and we weren’t really in a strong position as Indians back in the ‘50s and ‘60s to really stand up and do anything about it,” Bibeau said.

Partly as a result of that situation, Enbridge was able to put pipes in the ground on White Earth land. The same goes for the Red Lake Indian Reservation, where some members of that tribe have a similar discrepancy with Enbridge. Protesters there set up a camp in the winter of 2012-13 and, despite ground frozen by the sub-zero temperatures of brutal northern Minnesota winter, gave a nice, big middle finger to Enbridge by building a fence above the pipeline. It was a direct violation of the company’s policy, and a philosophical gesture in support of Indian rights. Thankfully, someone had the forethought to document the act of frigid disobedience.

“In a sense, we were still being held down and our resources were being given away either because we were completely ignorant, or the federal government was OK with it,” Bibeau said of the ’50s and ’60s, when Enbridge and other companies began pumping oil through Minnesota from Canada to the ports of Wisconsin, where the Sandpiper will end. “We had no help from the feds. They were saying, ‘If you don’t like what’s going on, make a law, and go out and sue them.’”

That’s exactly what Bibeau and the tribe intend to do. The period for public comment—which includes the hearings like the one LaDuke spoke at—ended Friday. Now it’s up to the PUC to decide whether Enbridge has a significant enough need to take control of the eight percent of land along the route they don’t already legally possess. Bibeau and his allies in the Indian and environmental communities will argue the company has no such need, not now that oil prices have plummeted. So, last weke, Bibeau and his fellow White Earthers traveled to St. Paul where they testified at a PUC hearing on the Sandpiper. Low oil prices were among their arguments against the project, as will environmental concerns and the confusing legal issues that surround Enbridge’s intent to encroach upon disputed White Earth land.

“While the Enbridge company is 60 years old, my people have lived here for 8,000 years,” LaDuke said at the Crookston hearing. “This is the only place in the world where we live, and this is the only place in the world where we can live.”