Crude Oil Catastrophes Part 3: A Tale of Two Treaties
The Constitution refers to treaties with other sovereign nations as “the supreme law of the land.” But what happens when promises have been made that are potentially in conflict?
Two different treaties with the U.S. could lead to very different outcomes for Line 5 – a controversial pipeline in the Great Lakes. One treaty is with Canada, promising not to disrupt the flow of hydrocarbons across the border. The other one is with Tribal nations in what’s now northern Michigan; it guarantees the right to hunt and fish throughout their ceded territory.
At a Senate hearing in May, Canadian officials called on the U.S. to join them in demanding the governor of Michigan “abandon her efforts” to shut down Line 5 – an important link in a series of pipelines moving crude oil from western to eastern Canada.
But Tribal nations in northern Michigan see the pipeline as a threat to their treaty rights – specifically, fishing in the Straits of Mackinac. A spill could devastate important spawning grounds for lake trout, whitefish and other species that are key to Tribal fisheries.
Host: Morgan Springer
Producer: Patrick Shea
Editor: Morgan Springer
Music: Luke Holizna and Max Dragoo
MORGAN SPRINGER, HOST: This is Points North: a show about the land, water and inhabitants of the Upper Great Lakes. I’m Morgan Springer.
In the past two episodes, we looked at times when transporting crude oil has gone horribly wrong.
Those disasters have fueled the controversy around Line 5 in the Straits of Mackinac. Right now, there are lawsuits fighting over the pipeline – to shut it down, or keep it open.
But there are two legal agreements … between the United States and separate sovereign nations. That’s what we’ll be focusing on today: two promises which seem to be in conflict … and both could decide this dispute at the heart of the Great Lakes.
JAMES COLEMAN: This treaty seems to be written as clearly as one could hope…
WHITNEY GRAVELLE: Oh, you wanna talk about treaties? Well we’ve got one too. So let’s talk about it.
SPRINGER: Reporter Patrick Shea will walk us through the legalese.
PATRICK SHEA, BY-LINE: Well, I’ll try.
SPRINGER: Look, you’re going to succeed. And it’s not going to be boring, either. Today’s episode is called: “A Tale of Two Treaties.”
SHEA: So, a few weeks ago, Line 5 came onto the main stage of U.S. politics.
SPRINGER: Canadian officials testified before the U.S. Senate. We all know that oil and gas prices are skyrocketing – in part because of the war in Ukraine. So the topic was energy security.
U.S. Senators asked their Canadian neighbors how they could help build a strong energy alliance.
JASON KENNEY: For starters: stop efforts to shut down existing infrastructure, like Line 5.”
SHEA: That’s Jason Kenney, the premier of Alberta.
KENNEY: And that’s why we’re calling on the U.S. Government to join Canada in demanding that the governor of Michigan honor the 1977 pipeline transit treaty by abandoning her efforts…
SHEA: That treaty that Kenney’s referring to – that’s the first treaty we’ll look at. It’s an agreement between the U.S. and Canada. And to really understand it, we’ve got to put it into context. So bear with me for just a moment, because this brings us far, far away from the Great Lakes.
NBC: This is NBC nightly news, Wednesday, October 17th.
SHEA: Of 1973.
NBC: Good evening. The middle-east war produced developments all over the world today. The oil producing countries of the Arab world decided to use their oil as a political weapon.
SHEA: By the 1970s, almost all the oil used in the U.S. was imported from the middle-east - specifically, from an alliance known as the Organization of Petroleum Exporting Countries. You probably know it as OPEC. In 1973, OPEC made a power move.
NBC: They will reduce oil production by 5 percent a month until the Israelis withdraw from occupied territories.
SHEA: Western nations were supporting Israel with military aid. So OPEC retaliated with an oil embargo. There was a sudden and drastic lack of oil in North America and long lines at gas pumps.
NEWSCAST: Some of the people on line here have been in other lines and still don’t have a tank of gas.
SHEA: To ration what little oil was left, some states made rules that gas stations could only sell to certain drivers, depending on their license plates.
NEWSCAST: Well, all you motorists with odd number plates: tomorrow, it’s your turn.
SHEA: In the years that followed, energy independence became a major talking point in the U.S. and Canada. That’s what prompted the treaty in 1977, which seems to make a pretty clear promise - and is now being invoked for the first time.
It’s generally referred to as the pipeline transit treaty. And simply put, it states that neither country will cut off the flow of hydrocarbons – oil and gas – across the border. Even if a pipeline carries mostly oil to and from one country, using the other as a shortcut, which is exactly what Line 5 does.
JAMES COLEMAN: The easiest route between Western and Eastern Canada is through the United States, right?
SHEA: That’s James Coleman. He’s a law professor at Southern Methodist University in Texas. He was writing about this treaty and how it might impact Line 5 before Canada even invoked it.
COLEMAN: Like, rather than try to go through the wilderness north of Lake Superior, you go south of Lake Superior. Right, and that makes a lot more sense geographically. Now obviously that puts Canada at some risk when it sends products…
Because, instead of controlling its whole own pipeline system, Canada has to rely on consistent U.S. policy, too.
COLEMAN: …And so that was the reason for the treaty, right? The treaty is there just to ensure that neither the U.S. nor any of its subsidiary governments …
SHEA: “Subsidiary governments,” as in, the State of Michigan.
COLEMAN: …do anything that puts that flow of oil and oil products at risk.
SHEA: How airtight is this treaty? Do you expect it to be successful in keeping Line 5 open, from the Canadian perspective?
COLEMAN: Well, I mean that’s the multi-million dollar, billion dollar question. You know, this treaty seems to be written as clearly as one could hope to accomplish that purpose of preventing any public authority from taking measures that would impede transit of oil from western Canada to eastern Canada.
SPRINGER: Ok, so that’s why Canadian officials brought this treaty up before Congress, right? They’re basically asking the U.S. federal government to step in and supersede the State of Michigan.
SHEA: Yeah, exactly. Canada says it should be able to stop Michigan’s shutdown efforts of Line 5.
SPRINGER: And this is significant because treaties are incredibly powerful.
SHEA: They are. According to the constitution, treaties between the United States and other sovereign nations are the supreme law of the land. They take precedence over any local laws, any state laws — anything. That’s written into the foundation of this country’s legal system.
SPRINGER: I really want to drive this point home. The constitution really does call treaties the “supreme law of the land.” So it sounds like the Canadian government has the trump card – game over for Michigan’s shutdown efforts.
SHEA: But here’s where it gets tricky. The U.S. has a treaty with other sovereign nations that might be in conflict with this one.GRAVELLE: Oh, you wanna talk about treaties? Well, we’ve got one too. So let’s talk about it.
That’s Whitney Gravelle. She’s president of the Bay Mills Indian Community, in Michigan’s Upper Peninsula.
SHEA: And that brings us to the second treaty. Whitney’s tribe is one of several Ojibwe and Odawa nations that signed a treaty with the U.S. in 1836. It’s called the Treaty of Washington, and it gave the federal government a huge chunk of land - almost all of what’s now northern Michigan and the Eastern Upper Peninsula. And in return, those tribal nations were guaranteed the right to hunt and fish in all of that ceded territory.
GRAVELLE: In exchange for this land and water, this right would continue to exist forever. That’s what they understood that treaty to mean. They wanted their people to be able to survive forever. And so that’s a living exchange. The State of Michigan still exists. They still have that land and water. So if you’re going to harm that treaty right, or you’re going to try and eliminate that treaty right, are you going to give back your land and water? Everyone would say that’s ridiculous. But to indigenous to people, to tribal nations, that’s what those treaties mean.
SHEA: Bay Mills and Michigan’s eleven other Tribal governments see Line 5 as a direct threat to those treaty rights – specifically fishing. A spill in the Straits could devastate spawning grounds for lake trout, whitefish and other important species for tribal fisheries.
Whitney also says the pipeline threatens a place with cultural and spiritual significance to her people. She says it’s where everything started.
GRAVELLE: That area where the Straits of Mackinac are is something that our people, that Anishinaabe call the heart of Turtle Island. We view that area as where the world was created.
SHEA: The Straits are the center of an Anishinaabe origin story. It’s a story Whitney was told as a child while fishing, which is why she says fishing is about so much more than just putting food on the table.
GRAVELLE: I often like to describe treaty rights as a relationship. So it’s not just the right to fish. It’s the right to sing with fish, to play with fish, to talk with fish. And when you describe it that way many people are like, ‘what does that mean sing with fish? … What does that mean?’ And what it really means is every act of going out and fishing – from the moment that you gather around the table to plan where you’re going on the water with your family … there are conversations and stories and teachings that are told from generation to generation when you’re in that act of fishing. It boils down to that this is who we are as people, this is how we live our way of life and this is how we understand our purpose here on earth.
SHEA: So all twelve tribes wrote a letter to President Joe Biden asking him to honor their treaties, and not intervene in Michigan’s shutdown efforts. Of course, at the same time, Canada is asking the President to honor their treaty and step in. And so far the Biden administration hasn’t taken a stance on this.
SPRINGER: That treaty of 1836 - it guarantees the right to hunt and fish. And like Whitney said, it's really meant to protect a way of life. But does it guarantee the quality of hunting and fishing?
SHEA: That’s a good question: how far do those treaty rights go beyond the direct act of hunting or fishing? Well, treaties like this one actually have been used before to shut down infrastructure.
Like, in 2018, the U.S. Supreme Court ruled that Washington State had to remove a bunch of road culverts that were blocking salmon from swimming upstream. The Court said those culvert’s were violating treaty rights for tribes by limiting their fishing access.
SPRINGER: Ok. The parallel I’m seeing with Line 5 is if oil spilled from the pipeline into Lakes Michigan and Huron, that could kill off fish, reducing the fish population which would similarly be limiting fishing access.
SHEA: Right. It’s worth pointing out, though, that for well over a century in the Upper Great Lakes, tribal members were still being arrested for hunting and fishing off-reservation but still in ceded territory – something their treaties explicitly allow. So I guess what I’m saying is even if there is a legitimate claim that Line 5 violates treaty rights, that doesn’t mean those treaties will be honored necessarily. That’s not exactly the trend through history.
GRAVELLE: I think indigenous people always remain cautiously optimistic, and I think that comes from the traumas that we’ve had to endure for many centuries.
SHEA: But still, Whitney says that when Michigan’s Governor took action against Line 5 in 2020, that was a turning point.
GRAVELLE: So when the shutdown order came and treaty rights were mentioned, I got really emotional. Because that’s one of the first times that the State of Michigan has acknowledged proactively a reason to stop something in order to protect treaty rights. But I also knew there was going to be more legal battles.
SPRINGER: Well that definitely happened. There have been a number of legal battles. Patrick, is there any indication either of these treaties might win out? Like are there any loopholes, weaknesses in one or the other?
SHEA: Well, I’ve talked with a few lawyers and my takeaway is this: Canada’s treaty deals much more directly with the question at hand – oil pipelines that cross the border. The 1836 Treaty of Washington was written well before there were any pipelines. In that way, you could say Canada's treaty is more to the point, I guess. That usually helps in court.
Canada’s treaty, though, does have this one clause that’s a little less clear. It allows for governments to temporarily reduce or stop the flow in these transit pipelines “in the event of an actual or threatened natural disaster, operating emergency, or other demonstrable need.”
SPRINGER: Pretty vague, but I’ll wager Michigan and tribal nations will try to demonstrate that need.
SHEA: I’d imagine so.
SPRINGER: So what’s next in all of this.
SHEA: I don’t know.
SPRINGER: Ok. Alright, fine.
SHEA: No I mean, it’s really hard to say, Morgan. I’d love for some resolution – to put a nice bow on this story – but that’s really hard to do when the story is so far from over.