Law & Policy

Written by: Cheron A. Laughing 

“Propelling us to rebel against the permanence of settler colonial reality and not just “dream alternative realities” but to create them, on the ground in the physical world, in spite of being occupied.”  

Leanne Betasamosake Simpson

Decommissioning An Outdated Legacy 

Over sixty-five years ago a pipeline operated by Enbridge, a multinational energy transportation company,  was constructed to carry petroleum 645 miles through the Straits of Mackinac that connect Lake Michigan and Lake Huron. The pipeline in use today is the very pipeline that was built in 1953. The age of the pipeline has its suspicions from both native and non-native citizens of the Great Lakes region. Demands for decommissioning the pipeline remain largely ignored as its operation continues. Thus, undermining tribal sovereignty and the environmental, cultural, and economic well-being of the native peoples of the Great Lakes region.

Federal law ( Executive Order 13175 under the Clinton administration) mandates that federal agencies seek “regular and meaningful consultation and coordination” with tribal leaders in the development of policy with significant impacts on tribal nations. Yet, in the face of a devastating spill, with  potential to release up to a million gallons of crude oil in a matter of twelve hours, operations of the pipeline remain under-regulated.

A spill of this scale would absolutely devastate tribal agriculture and tourism. Further, the destruction to cultural identity and environments is unquantifiable. The stakes of this project behoove action on part of state and federal policy makers to meet the enduring self-advocacy of  native nations throughout the state of Michigan calling for the decommissioning of Line 5.

Protecting the Right to Environment & Culture 

The United Tribes of Michigan (UTM), under the leadership of executive director Frank Ettawageshik of the Little Traverse Bay Bands of Odawa Indians, released resolution #044 in October of 2016. The resolution acknowledges both the corporeal impacts of a spill on fish and plants, and the cultural impacts to ceremonial practice. Many of these effects are interconnected, with the potential to last generations after the initial spill. Given these stakes, UTM recognizes the protection of the Great Lakes as “a sacred duty and practical necessity.”

In June, 2016 the National Congress of American Indians released resolution #SPO-16-003 calling for the end of Line 5. The resolution questions Enbridge’s claims of due-diligence in inspection, maintenance, and plans for spill response. Enbridge has a troubling track record, which includes a 2010 pipeline burst on the Kalamazoo River in southern Michigan that resulted in the release of hundreds of thousands of gallons of crude oil. Native nations of the Great Lakes region should not face another affront to environmental and cultural well-being due to a project that leaves them without benefit or recourse.

§311 of the Clear Air Act set forth the Spill Prevention, Control, and Countermeasure (SPCC) Regulation to “mitigate or prevent a substantial threat” of the discharge of oil. It is, therefore, the responsibility of the Environmental Protection Agency (EPA) to protect clean water interests in the region.

Further, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has laid universal foundations to protect native peoples from injustice done to ancestral environments. It does so by acknowledging that destruction to native environments is wrought by economic greed or development projects of settler governments. Article 25 of UNDRIP perfectly lays out the rights and responsibilities of native nations “ to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.” Realistically, the relationship of the native peoples of the Great Lakes region to the waters of the Straits of Mackinac will evolve and see changes over time; yet, when destructive change is thrust upon marginalized communities without” free, prior and informed consent “ it is a dangerous act of injustice and cultural hegemony.

Yet, in the face of extreme political hegemony, tribes can find avenues for comprehensive protection of critical resources. Klamath Tribes v. United States No. 96-381-HA, 1996 WL 924509 implicated the federal government to protect “ to the fullest extent possible’ the Tribes’ treaty rights, and the resources on which those rights depend.” It is in this interest that tribes have the authority to impose environmental regulations for development projects on reservation lands as strict as determined necessary.

Implications for Cultural Survival

Line 5 possess a unique threat to the cultural integrity of the many native nations that call the Great Lakes region home. Cultural values forsake putting a monetary value on ancestral land and waterways. This sentiment is especially strong as the actions and in-actions of today have the potential to forsake the well-being and connection to land of future generations.This rudimentary and delicate connection, strongly intertwined with lasting cultural integrity and inter-connectedness, is possible and expressed through lived experiences and active participation on ancestral lands and waterways.

The fight to protect these timeless connections does not exist in legal or legislative hearings alone, it is alive in all native nations that refuse to lose hope for future generations and do not settle for anything less than the full ability to practice their culture with the absolute spirit and integrity as past generations. Law and policy are constructions and weapons of settler-colonial systems, yet native nations must not shy away from opportunities to harness its power for both cultural protection and survival.

The opinions expressed are those of the author and do not necessarily reflect the views of the blog, its contributors, or Dartmouth College.This intent of this article is to impart general information and to disrupt and expose hegemonic/unjust settler-colonial systems, yet should not be taken as legal advice.