‘We’re in our forever home’

Ojibwe assert treaty rights, challenge a pipeline in northern Wisconsin

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On April 5, 1852, Chief Buffalo of the Lake Superior Chippewa (Ojibwe) set out for Washington, D.C., from Madeline Island in a 24-foot birchbark canoe with six companions. Ninety-two years old, he had already signed five treaties with the United States. But in 1850 President Zachary Taylor illegally ordered the Chippewa removed westward. That winter 400 tribal members died as a result of this broken faith.

The Chippewa delegation reached D.C. in late June, meeting with new President Millard Fillmore. He reversed the removal order, and in 1854 negotiations convened on Madeline Island. The Treaty of La Pointe established permanent Chippewa reservations in Michigan, Minnesota and Wisconsin, including the Bad River Reservation, east of Ashland.

The treaty also reaffirmed the Chippewa right to hunt, fish and gather on the lands ceded by treaties in 1836, 1837 and 1842. These rights were long violated, but have b​​een restored by a string of court decisions beginning in 1971. Since 1984 the Great Lakes Indian Fish & Wildlife Commission has been developing technical capacity to facilitate the natural resource interests of the 11 Ojibwe tribes in Minnesota, Wisconsin and Michigan. (Chippewa and Ojibwe are often used interchangeably, and this story follows that convention.)

The largest reservation in the state, Bad River is 195 square miles of forest and wetland surrounding the lower drainage of the Bad River. Where it flows into Lake Superior, and in the adjacent Kakagon Sloughs, high water quality and minimal development have nurtured the largest and ecologically healthiest estuary system remaining in the upper Great Lakes. Each September tribal members slip canoes through the golden weave of tall grasses, harvesting the bountiful reserve of wild rice, or manoomin.

But upstream, in the heart of the reservation, a 70-year-old pipeline operated by Enbridge Energy crosses the Bad River. The line still carries as much as 540,000 barrels of oil and natural gas liquids per day. A breach in that line would unravel the exceptional ecology of the downstream reservation.

Thirteen of Enbridge’s leases expired in 2013, and in 2017 the tribe decided not to renew, demanding the removal of the line from its reservation and its waters. As part of the unfolding legal actions against Enbridge, the tribe learned that erosion threatened to expose a less secure section of the pipeline to the river. In 2019 it filed suit in federal court.

In September 2022, a federal judge found Enbridge was in trespass. Anticipating this possibility, Enbridge has been pursuing a 41-mile reroute around the reservation. It has hired the company of the former Republican candidate for governor Tim Michels to construct the bypass. The project faces permit scrutiny from the Wisconsin Department of Natural Resources, the Environmental Protection Agency, the U.S. Army Corps of Engineers, and the tribe. There is no deadline, but a ruling on the environmental impact statement is expected from the DNR in coming months.

This story will not cover Enbridge’s economic, engineering and political arguments in support of Line 5, which are readily available from multiple sources. Americans endorse Enbridge’s economic argument every time we wince at gas prices. In 2022 a barrel of oil cost, on ​​average,  $101. Each day Line 5 moves product worth more than double the annual budget of Bad River Band. 

Climate change poses new threats to treaty-protected resources, and this story explores how treaty rights challenge the very existence of Line 5. The Treaty of La Pointe played a minimal role in Bad River’s lawsuit against Enbridge. But treaty rights are central to the tribal arguments against the reroute. If Line 5 breaks — whether on the Bad River or in the Straits of Mackinac or somewhere in between — the damage to tribal resources will be unimaginable. And if we can’t shutter a 70-year-old pipeline when the health of three Great Lakes is at stake, what chance do we have of slowing the fossil fuels causing climate change? Bad River Band of the Lake Superior Tribe of Chippewa Indians v. Enbridge Energy Co. provides a valuable lesson in the existential challenge of climate change.

“We’re in our forever home, as a result of treaties that we signed,” says Bad River Band Chairman Mike Wiggins Jr. “There is nowhere to retreat to in terms of our way of life, our identity.” 

The meandering Bad River

For thousands of years the sinuous Bad River — Mashkiiziibii in Ojibwe, meaning Medicine River — has etched a meandering course through the sand and clay that settled at the bottom of Lake Duluth as the last glaciers retreated.

Running water meanders on stages as vast as the Grand Canyon and as intimate as a roadside ditch. Spend enough time on a river and you begin to understand some of the forces at work.

Line 5 crosses the Bad River at the bight of one such sweeping meander. Reinforced pipe is used at crossings, sunk well below the river bottom. But soon the pipe climbs back above water level, set just a few feet below the surface. In 2019 engineers hired by the tribe discovered that the natural erosion at the meander threatened to undermine a longer and less hardened section of pipeline, exposing it to the considerable chaotic force of a flood-stage river.

After U.S. District Judge William M. Conley settled the primary issue of trespass in September, he scheduled trial on related matters between the Bad River Band and Enbridge Energy. The big question: Was Line 5 so dangerously close to a potential breach at the meander that Conley could order it closed as a public nuisance?

Conley is the sole arbiter in this case, working with both sides for four years to settle a complex suite of legal questions. Throughout the trial he demonstrated an admirable grasp of technical minutiae across multiple fields. Federal judges may not speak publicly about cases before them. But Conley repeatedly emphasized that experts on both sides had agreed that the risk to the pipeline was real, and a breach would be disastrous.

Recognizing the danger, Enbridge has installed markers and remote video surveillance to monitor the situation. It has submitted multiple plans to protect the pipe, fortifying the meander with timber, with rock, or even resetting the line deeper using horizontal drilling.

The tribe ultimately wants the pipeline shut down, and its natural resource department has rejected every Enbridge proposal for failing to meet its water quality standards. The band gained EPA authority to regulate its own water resources in 2011, and its standards are more stringent than the state’s.

Trial arguments focused on the immediacy of a potential breach. While Conley openly questioned Enbridge’s plodding progress towards a reroute, he was also perplexed by the Band’s unwillingness to permit bank reinforcements. Rock riprap and log abutments are constructed all the time, on waterways all over the country, for all kinds of reasons. It was easy to read the exasperation of Enbridge and the judge over the tribe’s resolute objections to this standard practice.

No place for spirituality 

By now you’ve probably heard a land acknowledgment, and it’s appropriate to include one here. I live on the isthmus that this paper is named after, on the historic land of the Ho-Chunk. I work and play predominantly on Ho-Chunk, Menominee and Chippewa lands.

I watched all of the federal court trial and was unsettled by the judge’s impatient interruption of Bad River witnesses introducing themselves in their native tongue. I was disappointed when he cut short testimony about the spiritual connections between land, water and Ojibwe.  

Legal cases often pull on a narrow lever of the law — in this case, the tribe’s EPA authority to regulate water. But as a result of this focus, the testimony about the river felt incomplete. I’ve spent a lot of time paddling rivers, studying rivers, and talking to experts about rivers. The picture seemed barely two dimensional.

To better understand “the meander” I wanted to experience this river. Late October is not optimal paddling time in Wisconsin, but with a favorable forecast I approached Naomi Tillison, head of the tribe’s natural resources department and asked for permission to paddle up river.

Before sunrise on the last Sunday of October, I slipped my canoe into the Bad River at Government Road and began a long day of paddling. Distant blasts marked the morning pulse of fall hunts. The wind was still, the river reflecting perfect images of high sandy banks and the trees above.

My map was a few printed screenshots from Google Earth, and I tracked progress with each bend. The river revealed what had so troubled me about the trial’s artificial focus on “the meander.” A meander, like a river, is more of a process than a thing.

I paddled beyond the meander to another pipeline crossing where the river had been hardened with rock riprap in the preceding decade. Rocky banks are commonplace farther upstream, but here it’s jarring and aesthetically out of place. Landscaping cloth is exposed where the river has already swept away some riprap. The shape of the river doesn’t feel quite right. What was being proposed at the Line 5 location seemed even more out of place.

After my paddle, I talked to Wiggins and asked about the tribe’s objections to shoring up the banks to prevent a pipeline breach. 

“That river is alive, and we see it as animate,” he says. He imagines a time-lapse video showing the steadily shifting shape of the river over 1,000 years. “You would watch that river traveling just like a snake,” says Wiggins. From above, the little oxbow lakes stranded by the changing channel look like eggs.

“As that little snake swims through, that morphology is part of the dance. That morphology is absolutely part of what makes that river bottom realm so unbelievably rich,” he explains. Old cedar groves are nestled within endless acres of giant sugar maples. Wild leeks and fiddleheads cover the river bottoms in season. The healthiest sturgeon population in Lake Superior spawns here.

When Wiggins fishes at the mouth of the Bad River and puts his hands in the water, he feels the connection to the river’s source. “There’s a transfer of spirit where the Bad River becomes Lake Superior, Lake Superior becomes Bad River, up to its origin in Caroline Lake and the Penokee Hills,” he explains. “That’s the actual scientific truth. And the rest is how we as human beings fragment, compartmentalize, put things in the science catalogs, and then retrain our minds and hearts to think of things differently. But the absolute natural law is that that hydrology is very direct and very connected.

“None of the federal and state permitting processes have any place for the spirituality of our people, for our connection to this place,” he says. “It’s very difficult to try to convey in courtrooms and permitting hearings.

‘Continuing an indigenous way of life’

In 2010 Enbridge’s Line 6B pipeline ruptured and released over 1 million gallons of diluted tar sands crude oil into a tributary of the Kalamazoo River. Cleanup cost more than $1.2 billion, and many native plants still haven’t returned. 

In the wake of the disaster, Michigan reevaluated its pipelines. Line 5 raised alarm bells. 

Line 5 runs 645 miles from Superior, Wisconsin, to Sarnia, Ontario, most of that in Michigan. It crosses the Mackinac Straits in two pipes sitting atop the lake bed, buffeted by strong cross currents and vulnerable to anchor strikes. One threat assessment projected that a release could inflict a $5.6 billion wound on Michigan’s natural resources and tourism industry.

The state has battled Enbridge ever since. The company wants to relocate the pipeline into a tunnel beneath the straits, and permitting has become contentious and complex. At one point Gov. Gretchen Whitmer ordered the line closed, but Enbridge defied the shut-down. The case has bounced around Michigan courts and driven election dynamics.

The tribal perspective is clear. In 2021, 12 Michigan tribes urged closure of the pipeline in a letter to President Joe Biden.

Native peoples in the upper Midwest believe that they signed their first treaty with creation. The Ojibwe are careful with their stories, but with permission from her elders Whitney Gravelle, a treaty rights lawyer and president of the Bay Mills Indian Community, shared their creation myth before the Michigan Senate Committee on Energy and Technology in April  2021.

The story begins, like many creation stories, with a flooded Earth. The Creator instructed the animals “to swim deep beneath the water of the Great Lakes and collect soil to be used to recreate the world. All of the animals failed until the lifeless body of a muskrat, the last animal that attempted it, resurfaced carrying a small handful of soil in its paws. The Creator took that soil and rubbed it on a great turtle’s back forming land that became known as Turtle Island.”

That turtle emerged in the Straits of Mackinac, a name derived from Anishinaabe words meaning turtle. The Great Lakes are considered the heart of Turtle Island and the heart of North America.

One of the founding principles of federal Indian law is that treaty language must be viewed from the Indigenous perspective. This recognizes language and cultural barriers, but also reflects the process of treaty negotiations, which included long days of conversation and consultations. “We were not writing the treaty ourselves,” explains Gravelle. “We were conversing and sharing and trying to explain what something meant.”

Legal doctrine specifically details treaty rights to hunt, fish and gather in the ceded territories. Gravelle recalls one elder who talks about the right to play, swim, and even laugh with the fish. “Fishing” does not convey the complexity of the Ojibwe relationship with the fish. “That’s really what our ancestors were trying to preserve,” says Gravelle. “It really goes so much further than just being out, catching a fish, and then being done. That’s not what the treaty right is. It’s really about continuing an indigenous way of life.”

Shifting ecosystems

During the Bad River Band v. Enbridge trial, climate change was mentioned only once: as a driver of more extreme storm events. The likelihood of a Line 5 breach is tied to erosion rates exacerbated by high flooding. Two historic floods have scoured the Bad River Basin in just the last eight years.

As Enbridge seeks a permit for its reroute of Line 5, a spill into tributaries of the Bad River remains a significant concern. But climate change is an even more extensive environmental threat, and is a pillar of the tribes’ legal argument against the reroute. Lake Superior is a cold water system. Warming means huge ecological losses.

“If things don’t change, there is the possibility that wild rice is going to be gone from the landscape,” says Kekek Stark, a Turtle Mountain Ojibwe and law professor at the University of Montana. “According to some models it’s going to be north of the Canadian border. Most of northern Wisconsin is projected to look like southern Wisconsin, right? Ecosystems are projected to shift. How do we address all those issues?

“It’s a responsibility,” says Stark, who also spent eight years with the Great Lakes Indian Fish & Wildlife Commission. His legal scholarship focuses on the evolution of treaty law and the emerging management capacity of tribes. “Our responsibility is tied with the first treaty. If the tribes, collectively, don’t [act on climate change] then who will? That’s our responsibility.”

Native perspectives on treaty rights include this responsibility to nature. But what about treaty responsibility of the states and the U.S. government to the tribes? Natives have long talked about the many ways in which the treaties were broken, but an emerging line of thought understands that the Chippewa had in mind a more collaborative existence with the white man in the upper Midwest.

Even without exploring the value of deeper cooperation on environmental issues with the tribes, legal precedent from the Pacific Northwest may force the issue. Before 2001, the state of Washington had installed some 1,000 culverts that impeded salmon migration. Twenty-one tribes sued, arguing the state had harmed a resource guaranteed to them by treaties signed between 1854 and 1856. In 2013 a lower court ruled the offending culverts must be replaced, and in 2018 the U.S. Supreme Court let the ruling stand.

Similar logic drives tribal comments submitted to the Wisconsin DNR and the U.S. Army Corps of Engineers over permits for the Enbridge Line 5 reroute. The Bad River Band argues that the burning of fossil fuels harms the upper Great Lakes, threatening treaty resources. “We shouldn’t have to wait for there to be no wild rice,” argues Stark. “Before you honor the treaty, you should honor the intent in the relationship.” 

Meanwhile, both Canada and the U.S. are signatories to multiple international accords committed to significant reductions in greenhouse gases. And the most obvious opportunities lie in burning less fossil fuels. According to trial testimony, Line 5 ultimately accounts for just 3% of the raw petroleum products in its service region. It will require two massive and risky construction projects — the Bad River reroute ($450 million) and the Mackinac tunnel ($500 million) — just to remain viable. The remainder of the route is 20 years past its sell-by date and likely to require further expenditure. Why double down on a high risk investment?

The Chippewa are asking an important question that matters to everyone: Why jeopardize the Great Lakes — 10% of the world’s fresh water — for so little oil? That is almost certainly the level at which Line 5 should be evaluated, but state agencies in Michigan and Wisconsin don’t have that authority. This is not even done effectively through national energy policy.

Cost overwhelms benefit

One of the great challenges of climate change is communicating the global matrix of cause and effect. The overwhelming complexity of what’s happening and what needs to happen short circuits our best intentions. It feels too big.

For the Bad River Band, for all the descendants of Chief Buffalo, that chain of cause and effect is more intimate, and more visceral. If the pipe bursts, their way of life, their prospects for the future, are forever diminished. In their cost-benefit equation for fossil fuels, cost overwhelms benefit.

The Bad River Band, the Bay Mills Indian Community, and their allies see this part of the future with more clarity than most.

“Climate change isn’t a big fireball coming out of the dark night colliding with earth,” says Wiggins. “Climate change is the death of 1,000 ​​negative occurrences over an expanse of time. Bad River’s rejection of Enbridge is one of those positive climate choices that needs to be teamed up with 1,000 more and then replicated over and over again, over the expanse of time.

“It’s not like Line 5 goes away and all of a sudden I can’t turn a knob and get hot water in my house. There’s a graceful transition that’s available to us,” he adds. “This is a very simple choice in terms of protecting the largest freshwater lake in the world. This is one of those forks in the road where we choose healing.”