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Judge says tribal treaties don’t apply to routing of new pipeline in northern Minnesota

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An administrative law judge has rejected claims that 19th century treaties give Native Americans a say in choosing a route for a new crude oil pipeline across northern Minnesota.

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Honor the Earth, an environmental group led by Native American activist Winona LaDuke, favors a different route for Enbridge Energy’s proposed $2.6 billion Sandpiper pipeline that would carry North Dakota crude oil across northern Minnesota to Superior.

The group contends that the Chippewa Tribe should have a say in the pipeline’s right of way because of the potential harm to tribal members’ right to fish, hunt and gather wild rice in ceded, off-reservation territory. The group has suggested building the pipeline south of Interstate 94 to avoid wild rice lakes.

Judge Eric Lipman, who is reviewing the pipeline project for the state Public Utilities Commission, ruled Tuesday that an 1855 treaty ceding Chippewa lands in Minnesota to the U.S. government does not bar later acquisition of a route.

“The treaty does not forbid creation of new rights of way on the land that was sold in 1855,” Lipman wrote in a seven-page order.

At a hearing earlier this month in St. Paul, Honor the Earth attorney Frank Bibeau and co-counsel Peter Erlinder of the International Humanitarian Law Institute had argued for a treaty-derived role in pipeline siting decisions. Enbridge attorney Christine Brusven countered that there is no precedent for such a step, which would affect large energy projects across northern Minnesota.

In an e-mailed statement, Enbridge spokeswoman Lorraine Little said the company is reviewing the order, and will continue the regulatory process with a goal of gaining approval and beginning construction early next year.

“Sandpiper will provide a vital link between energy resources and refineries, helping the U.S. to take advantage of increasingly accessible oil resources which are important components of products we use every day and the fuel we use in our cars,” Little said.

This likely isn’t the end of the legal battle, although Bibeau and Erlinder said Wednesday that they have not decided the next step. The attorneys said the legal issue could land in state court, federal court or tribal court. LaDuke and Bibeau are members of the White Earth Band.

“I don’t know how we can just stop and say, ‘No, never mind, it’s OK to run these pipelines through the middle of rice country,’ ” Bibeau said.

Most treaty rights battles have been decided in federal court. In Minnesota’s most famous case, the U.S. Supreme Court affirmed in 1999 that the Mille Lacs Band of Chippewa and seven other Chippewa bands retained hunting, fishing and gathering rights under an 1837 treaty on lands and lakes ceded by the tribes in central Minnesota. Federal judges in Washington state have twice sided with protecting treaty fishing rights from harm by other activities, including denial of a permit to a commercial fish farm.

In the Minnesota pipeline case, Lipman said that evidence presented so far does not support the claim that treaty rights will be harmed. If Chippewa property rights were impaired by the pipeline, he wrote, the remedy would be to compensate Native Americans.

Erlinder said the judge recognized that Chippewa bands have property rights under treaties.

“For a long time, in the analysis of these treaties, they have been treated like documents from outer space that somehow existed apart from regular law,” Erlinder said. “They are just plain, regular contracts.”

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