The destiny of the Line 5 pipeline is at another pivotal point in its over 70-year existence. This pipeline transports more than 500,000 barrels of oil products each day across the Great Lakes area from Wisconsin into Canada, following a route that lies beneath the Straits of Mackinac.
Throughout its operational lifespan, the pipeline has experienced leaks on more than 30 occasions, discharging over 1 million gallons of oil. A 2016 study by the University of Michigan indicated that upwards of 700 miles of Great Lakes coastline could be compromised if the pipeline were to fail in the straits.
Enbridge, the Canadian entity that manages the pipeline, has suggested drilling a tunnel beneath the straits to safeguard the pipeline and maintain its operations. Following an executive order that labeled a national energy predicament, the Trump administration has directed the U.S. Army Corps of Engineers to expedite its environmental impact assessment of this initiative.
The Corps of Engineers anticipates unveiling its draft Environmental Impact Statement on May 30, potentially enabling Enbridge to proceed following a 30-day public commentary period.
While it seems the pipeline may progress, Indigenous nations in the Great Lakes region have pledged to persist in their opposition to the project, which was authorized without their consent in the 1950s. In 2023, a federal judge determined that Enbridge was encroaching on tribal territories that Line 5 traversed in Wisconsin. Similarly, tribes in Michigan have taken legal action against the pipeline, yet the energy emergency declaration complicates an already complex clash of state, federal, and Indigenous laws.
Matthew Fletcher, a faculty member at the U-M Law School, is available to discuss these matters. Fletcher, a member of the Grand Traverse Band, previously served as a staff attorney for four tribes—the Pascua Yaqui Tribe, the Hoopa Valley Tribe, the Suquamish Tribe, and the Grand Traverse Band—prior to becoming a professor. Currently, he holds the position of chief justice for the Pokagon Band of Potawatomi Indians, the Poarch Band of Creek Indians, and the Grand Traverse Band of Ottawa and Chippewa Indians.
Can you summarize the current legal situation concerning Line 5 and the Indigenous nations of the Great Lakes region?
There are two Line 5 legal conflicts I know of—and there could be more—but those that have received significant litigation involve the Straits of Mackinac and the Bad River Reservation in northern Wisconsin. It’s the same pipeline, but it transverses both locations.
The Straits of Mackinac are a junction of enormous water systems, with five federally recognized tribes that signed an 1836 treaty. These tribes—Sault Tribe, Bay Mills, Little Traverse, Grand Traverse, and the Band of Little River—hold a legal property interest in that water, designated as a use of property right. This right allows them to fish within that water system without state regulations, to a degree. While it’s all negotiated, the tribes have vested interests in maintaining clean water and habitats for their fishing activities in the straits and across the surrounding areas.
These matters are fiercely contested in court, and while there is limited guidance from the Supreme Court on the extent of that property right, it is indeed recognized. This grants the tribes an investment in the area and a foundation to present significant arguments rooted in state and federal legislation.
The tribes and environmental organizations have often found more traction in other environmental regulatory or procedural statutes. Under the National Environmental Policy Act (NEPA), there are numerous legal obligations that the federal government must satisfy when implementing actions that affect the environment. These procedural stipulations can sometimes extend for years, potentially derailing a project since the bureaucratic duties to observe, report, and even estimate environmental impacts can be quite burdensome and costly. Furthermore, state governments may have their own versions of NEPA.
In the Straits of Mackinac, the tribes assert their treaty rights/property rights interests in the waters, enabling them to position themselves as claimants while also advocating procedural objections.
And what’s the situation in Wisconsin?
Wisconsin holds significant importance as well. It presents a more dire scenario for tribes than what is seen in Michigan, because this situation directly involves the land of the Bad River. The pipeline was introduced at a time when the tribe had no rights to voice concern regarding the placement of a pipeline on their actual reservation. Currently, the easement has expired, meaning the pipeline should not be there. They are essentially a holdover tenant under the law, which implies they owe trespass damages that a federal court will determine.
Ultimately, the tribe seeks to have that pipeline removed, yet the federal judge has not mandated its removal, which is perplexing. The judge’s stance essentially prioritizes oil over Indigenous rights. This case is currently under appeal to the 7th Circuit, but even with the law and the facts favoring the tribe, the outcome remains frustratingly elusive.
The energy emergency declaration applies solely to the dispute in the straits, where the U.S. Army Corps of Engineers holds authority. How does that impact the legal standing of the Michigan tribes?
The situation involves a contrived, power-related energy emergency that is fundamentally fabricated. However—I delve into federal court jurisdiction alongside my focus on Indian law—the judiciary remains unaware of…“`html
What military authorities are. When the president asserts, “We’re facing an invasion” or “We have a national security crisis of some sort,” the judiciary often typically believes the president’s statement. This illustrates the deference connected to the separation of powers, where the judiciary yields to the executive’s military authorities, a principle anchored in the Constitution’s framework.
If the president makes a bold assertion about an invasion, perhaps relating to immigration or an energy crisis without any factual foundation, the judiciary generally accepts that assertion. They’ve effectively constrained their own options in that regard, leaving very little for the groups to contest in the judicial system. While you can pursue appeals, it’s very improbable that you’ll gain much from it.
Additionally, regarding the emergency situation, procedural laws often impose a stay on the ongoing progress of the concerned project during litigation. This stay maintains the current state until all NEPA-related and other procedural laws are resolved. However, in the event of an emergency declaration, there’s no requirement for them to issue a stay. Once an emergency is declared, the project will proceed. You may still pursue litigation regarding these procedural laws, but the issues might become irrelevant. The judiciary loses jurisdiction over them as the projects may commence or even be completed by the time procedural matters are litigated. To be honest, it feels quite Orwellian.
How has the evolution of American Indian law influenced our current standing?
This pipeline was established during what is commonly known as the Termination Era in federal Indian law. This period emerged following World War II and the onset of the Red Scare. Tribes were perceived as socialist or communist organizations that needed to be eliminated, prompting Congress in the 1950s to identify and effectively terminate tribes one by one.
This process entailed dissolving the tribal-federal relationship, liquidating tribal assets, and allowing the federal government to seize whatever it desired. Not all tribes were affected, but approximately half of the tribes in the U.S. faced termination. Those that were thriving economically or practicing sustainable environmental management were specifically targeted. This was an extremely corrupt time in federal Indian law. The same individuals who oversaw the Japanese internment camps managed the Bureau of Indian Affairs in the ’50s, and they were hardly allies.
Moreover—although not an official principle since Congress never articulated this—the United States had consistently viewed Indian tribes as wards, with the federal government serving as their guardian until the 1970s and ’80s. The analogy here is Britney Spears and her father. Britney became her father’s ward, who controlled all her financial assets and resources. He made all her business and personal choices. A ward has no legal standing and is unable to sue their guardian.
In Michigan, it wasn’t until the late 1980s and into the ’90s that the number of federally recognized tribes increased from four to twelve. These tribes began to establish a more robust relationship with the federal government, which had transitioned to what we now term Self-Determination, the subsequent era following Termination.
In the Self-Determination phase, tribes possess more authority over their assets and resources. The government now acts as a trustee rather than a guardian. A trust beneficiary has legal rights to contest the trustee’s decisions. With the growth of gaming and other economic activities, tribes have gained some economic influence, translating into political power. We can now hire our own legal representatives without needing to seek permission from our so-called guardian, which was a requirement until 2000, at least on paper. Presently, we can genuinely object to these matters.
Thus, as tribes acquire the chance to raise objections regarding situations like this, they take action. However, politically, they often find themselves in a precarious situation. It tends to appear as though, “What? You accepted this in the ’50s and now you’re raising concerns too late.” This isn’t fair, but it is the reality.
What additional information would you like people to be aware of?
The ramifications of a major oil spill in the Straits of Mackinac would be utterly disastrous. It poses an existential risk to tribes. This situation is about the survival of entire communities and nations. Tribes consistently advocate for environmental preservation, which positions them against some formidable interests.
Enbridge is a Canadian firm utilizing America as its polluted transportation center, and we aren’t benefiting from it. If we seek American energy independence, this contributes very little to achieving that goal.
Regarding environmental regulation, oversight, and especially monitoring, tribes are by far the most steadfast governmental entities—not just across the nation, but particularly in the Midwest. State and federal agencies fluctuate in their commitment depending on who has recently won elections, but tribes consistently take on these responsibilities and perform the necessary work.
Furthermore, they represent everyone, not solely tribes. Every entity utilizes the Straits of Mackinac, the inland waters, and the air. Tribes are the only reliably consistent governmental bodies in Michigan and the Great Lakes region advocating for the public’s interests. They act in the interest of all.
Related stories:
Line 5 and climate change: ‘We don’t have an energy emergency. We have a willpower emergency.’
Line 5 and its narrative in Michigan: ‘It’s had more twists and turns than a Russian spy novel.’
Line 5 and its hazards: ‘The implications of failure would be disastrous.’
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