Michigan tribes could have stronger case against Line 5 thanks to SCOTUS decision | Michigan Radio
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Michigan tribes could have stronger case against Line 5 thanks to SCOTUS decision

Jun 15, 2018

 


This week, the U.S. Supreme Court released a decision that could strengthen the fishing rights of Native American tribes across the nation. It could even give tribes in the Great Lakes region a legal framework to shut down Enbridge's Line 5 pipelines.

The case was based in Washington state, and the court's ruling now forces the state to remove or alter up to 900 culverts that have environmentally damaged streams and impeded salmon from migrating.

Matthew Fletcher is director of the Indigenous Law and Policy Center at Michigan State University. He spoke with Stateside about the broader implications of Washington v. U.S.

What is Washington v. U.S.? 

In the 1850s, federally recognized Native American tribes entered into treaties with the United States government, releasing portions of their land in exchange for off-reservation fishing rights. 

This past year, more than 20 tribes in Washington and surrounding areas filed suit against the state. The suits argued that the state defied fishing treaties by continuing to build and maintain culverts, which diminished the size of salmon runs in the area. 

The circuit court ruled in favor of the tribes, requiring the state to remove all culverts. The state of Washington said that would cost $2 billion, and appealed to the U.S. Supreme Court. The Supreme Court affirmed the lower courts ruling with a split 4 to 4 decision. Justice Anthony Kennedy recused himself from the case. 

How does this ruling effect Great Lakes tribes? 

Fletcher said this case will impact essentially any tribe with off-reservation fishing and hunting treaties. The ruling implies that these treaties protect not just the right to fish, but also the right to a habitat for these fish to exist. 

Since the case was decided on a 4 to 4 tie, there was no written opinion issued by the Supreme Court. This creates some ambiguity. The case was argued in an effort to set a standard to judge whether a treaty had been broken in future cases. 

“Since that (standard) was never defined by the Supreme Court, that's still an open question,” Fletcher said. “We still have to address that in the Great Lakes.” 

In the 9th District, where this case was originally argued, a tribe can can use proof of habitat degradation to claim a breach of the treaty. 

Could tribes use this ruling to stop Enbridge Line 5? 

According to Fletcher, if a big enough replacement or change is made to the existing pipelines, federal law requires review by the Environmental Protection Agency and the Army Corp of Engineers. Fletcher said tribes could then jump in and argued they have to be consulted about those changes. 

“If it can be shown that there is a possibility, and we don't know what that possibility is,  but if it can be shown there is a possibility that the pipeline would rupture and release a catastrophic release of oil, then that directly affects the tribe's treaty rights.”

Tribes could go as far as to argue Enbridge (which is a Michigan Radio sponsor) needs to get rid of the pipeline altogether because, no matter how safe they make the pipeline, there could still be a rupture.

This post was written by Stateside production assistant Sophie Sherry. 

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