Line 5 is a dangerous and outdated 645-mile pipeline owned by the Canadian corporation Enbridge Energy, Inc. The Line 5 pipeline system transports up to 23 million gallons of crude oil and natural gas liquids each day.
In 2013, Enbridge’s right-of-way with the Bad River Band to operate the Line 5 pipeline through the Bad River Reservation expired. Despite the Bad River Band refusing to renew the right-of-way, the Canadian oil and gas giant continues to operate the pipeline and refuses to leave the Reservation.
Since 2013, Enbridge has earned over $1 billion by knowingly trespassing on the Bad River Band’s reservation, where there are only 11 feet of bank remaining between the pipeline and the current of the Bad River at its narrowest point.
In June 2023, the U.S. District Court for the Western District of Wisconsin ruled that Enbridge is consciously and willfully trespassing on the Bad River Band’s reservation.
The court ordered Enbridge to decommission the portions of the Line 5 oil and gas network the corporation operates without a right-of-way on tribal lands. Enbridge appealed that decision to the 7th Circuit, and the tribal amicus brief supports the Bad River Band’s right to evict the trespasser.
“A foreign corporation that makes billions of dollars a year is asking the U.S. courts to also ignore its on-going trespass and allow it to trample over the rights of sovereign Tribal Nations in the name of profit,” said Native American Rights Fund (NARF) Staff Attorney Wesley James Furlong.
The federal court ruled that Line 5 is a “public nuisance” with an imminent threat of rupture that could contaminate the Band’s drinking water, poison plants and wildlife, and devastate the region’s economy. However, the order allows the pipeline to continue operating in trespass until June of 2026.
Both sides appealed before the U.S. Seventh Circuit Court of Appeals. The appeals court called on the U.S. government to end its silence and formally weigh in on the issue.
The Litigation:
October 2023: Tribal Nations Support the Bad River Band
On October 18, 2023, 28 Tribal Nations and four tribal organizations filed an amicus brief with the U.S. Court of Appeals for the 7th Circuit outlining the U.S. trespass laws that protect the inherent sovereignty of Tribal Nations and their lands from corporate land grabs. The friend-of-the court brief supports the Bad River Band of the Lake Superior Tribe of Chippewa Indians’ (Bad River Band) battle to eject the trespassing corporation Enbridge Energy, Inc., and remove the Line 5 crude oil pipeline from the Band’s reservation located in Northern Wisconsin, along the shores of Lake Superior.
“No right-of-way means no right to operate on tribal land, just like on any other type of land holding in the United States,” said Bay Mills Indian Community President Whitney Gravelle. “As sovereign governments and landowners, it is the absolute right of every Tribal Nation to expel any entity operating on their lands without consent.”
The amicus brief advocates for the sovereign rights of Tribal Nations to expel trespassers from their lands and demonstrates how Enbridge’s trespass perpetuates the tragic history of stealing Native lands. The legal filing explains how U.S. courts could end corporate land grabs by upholding the inherent sovereign authority of Tribal Nations to expel trespassers from their lands. NARF drafted the brief on behalf of the 28 Tribal Nations and four organizations.
“Tribal Nations certainly can evict and eject trespassers like Enbridge who operate illegally on tribal lands without permission. The appeal court’s decision in this case will affect the rights that all Tribal Nations have to protect themselves from corporate land grabs,” said Furlong.
The 28 Tribal Nations and four organizations who submitted the amicus brief include:
- Agua Caliente Band of Cahuilla Indians
- Barona Band of Mission Indians
- Bay Mills Indian Community
- Chippewa Cree Tribe
- Confederated Tribes of the Umatilla Indian Reservation
- Grand Traverse Band of Ottawa and Chippewa Indians
- Jamul Indian Village of California
- Keweenaw Bay Indian Community
- Lac du Flambeau Band of Lake Superior Chippewa Indians
- Lac Vieux Desert Band of Lake Superior Chippewa Indians
- Leech Lake Band of Ojibwe
- Little River Band of Ottawa Indians
- Little Traverse Bay Bands of Odawa Indians
- Lower Sioux Indian Community of the State of Minnesota
- Muscogee (Creek) Nation
- Navajo Nation
- Nottawaseppi Huron Band of the Potawatomi
- Oneida Nation
- Pueblo of Isleta
- Red Cliff Band of Lake Superior Chippewa Indians
- Saginaw Chippewa Indian Tribe of Michigan
- San Juan Southern Paiute Tribe
- Shoshone-Bannock Tribes of the Fort Hall Reservation
- St. Croix Chippewa Indians of Wisconsin
- Stockbridge-Munsee Community
- Suquamish Indian Tribe of the Port Madison Reservation
- Viejas Band of Kumeyaay Indians
- White Earth Band of Ojibwe
- California Tribal Chairpersons Association
- Coalition of Large Tribes
- National Congress of American Indians
- United South and Eastern Tribes, Inc. Sovereignty Protection Fund
April 2024: U.S. affirms Enbridge is Trespassing
Biden administration agrees that Enbridge is trespassing on Bad River Band Reservation
On April 10, 2024, the U.S. Department of Justice (DOJ) filed a brief to the U.S. Seventh Circuit Court of Appeals that was unequivocal in its view that Enbridge is trespassing on tribal reservation lands and that additional financial compensation to the tribe is needed.
Enbridge is a Canadian corporation whose dangerous and outdated Line 5 oil pipeline has been trespassing on the reservation of the Bad River Band of Lake Superior Chippewa for more than a decade. The amicus brief acknowledged that Enbridge lacked the legal right to keep its pipeline on the Tribal Nation’s reservation, while not proposing any remedy to stop the harm to the Band.
“While the United States’ brief acknowledged both that Enbridge has been trespassing for more than 10 years and the importance of tribal sovereignty, we are perplexed by the false equivalency that the United States suggests between its tribal treaty and trust obligations to Indian Country and its diplomatic relationship with Canada,” said Native American Rights Fund (NARF) Staff Attorney Wesley James Furlong.
The U.S. brief did not call for an immediate shutdown of Line 5 and ask the Court of Appeals to remand the case to Judge Conley to consider the competing 1854 Treaty between the US and the Band River Band and the 1977 Pipeline Treaty with Canada. The UN Permanent Forum on Indigenous Issues has criticized Canada for trampling Indigenous rights to protect Line 5 and other fossil fuel interests, and a UN international human rights expert has recommended that the U.S. and Canada shut it down.
“The filing leaves more questions than answers. It also leaves Bad River, other Tribal Nations throughout the region, and the 40 million people that rely on the Great Lakes at risk of a catastrophic spill. We fear it will take Line 5 failing again, and the disaster of an oil spill for our position to be taken seriously. This isn’t just about tribes, it is about clean water, it is about life. It is about every U.S. citizen and preserving our natural resources for generations to come,” said BMIC President Whitney Gravelle.
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