Chippewa Consent for USACE (2019)

Page 1 of 9

WERBC Resolution

Chippewa Consent for USACE

Enbridge Line 3 Water Quality Permitting

WHITE EARTH RESERVATION BUSINESS COMMITTEE

WHITE EARTH BAND OF CHIPPEWA INDIANS

Resolution No. ___________________

WHEREAS,

the White Earth Reservation Business Committee is the duly elected governing

body of the White Earth Reservation pursuant to Article VI, Section 1, of the

revised constitution of the Minnesota Chippewa Tribe, as amended, and

organized under Section 16, of the Act of June 18, 1934 (48 Stat. 984), and

WHEREAS,

the White Earth Reservation was established by Treaty in 1867 as a final

relocation reservation for the Chippewas of the Mississippi following prior

relocation attempts via the 1863 and 1864 Treaties with the Chippewa, moving

us from our 1855 Chippewa reservations “known as Gull Lake, Mille Lac, Sandy

Lake, Rabbit Lake, Pokagomin Lake, and Rice Lake” to Leech Lake reservation

initially, then soon after to White Earth Reservation, and

WHEREAS,

the White Earth Band of Chippewa (or Ojibwe) has approximately half of the

40,000 total tribal members enrolled in the Minnesota Chippewa Tribe (MCT),

which are all treaty beneficiaries of the many Chippewa Treaties with the United

States and who retain the usual rights of use and occupancy across the 1855

ceded territory and former 1855 reservations; including usufructuary property

rights to hunt, fish, trap, gather wild rice as part of earning a modest living, and

WHEREAS,

the White Earth Reservation Business Committee is the duly elected governing

body authorized by the Revised Constitution and Bylaws of the Minnesota

Chippewa Tribe, Minnesota as the constituent band of the Minnesota Chippewa

Tribe organized under Section 16 of the Act of June 18, 1934 (48 Stat. 984) and

therefore has the responsibility and authority to provide for the safety, health

and welfare of its tribal members, and

WHEREAS,

the White Earth Band is primarily comprised of Chippewas of the Mississippi

from Gull Lake, Rabbit Lake, Mille Lacs, Rice Lake and Sandy Lake, Pokegama but

also includes Pillager, Winnibigoshish, and Lake Superior band members and

others relocated who are beneficiaries to many of the Chippewa treaties with

the United States of America, and

WHEREAS,

the Northwest Ordinance of July 13, 1787, Article III provides that the utmost

good faith shall always be observed towards the Indians; their lands and property

shall never be taken from them without their consent, and the United State

Constitution was ratified in 1788 providing in Article VI that treaties are the

supreme law of the land, and Article I, Section 8 of the Constitution states that

“Congress shall have the power to regulate Commerce with the Indian tribes”

and the Bill of Rights ratified in 1791, Fifth Amendment provides for property

Page 2 of 9

WERBC Resolution

Chippewa Consent for USACE

Enbridge Line 3 Water Quality Permitting

rights being protected by due process and from unjust taking, and shortly

thereafter in the 1795 Treaty of Greenville “the United States relinquish[ed] their

claims to all other Indian lands northward of the river Ohio, eastward of the

Mississippi, and westward and southward of the Great Lakes and the waters

uniting them . . . .” (See Article IV), and

WHEREAS,

the 1825 and 1826 Chippewa Treaties with the United States further recognized

Chippewa national sovereignty, regulation of hunting and jurisdiction with regard

to future land cessions and the exercise of usufructuary property rights over

those territories in states now known as Michigan, Wisconsin, Minnesota and

North Dakota, and

WHEREAS,

various federal courts have recognized

the historical importance of these activities in Chippewa life and the

emphasis of the Chippewa chiefs on usufructuary rights during their

negotiations with the United States indicate that the Indians believed

they were reserving unrestricted rights to hunt, fish, and gather

throughout a large territory. [ . . . ]

The history suggests that the Chippewa Indians' exercise of their

usufructuary rights included selling what they hunted, fished, or

gathered in order to make a modest living.

(See United States v. Brown (2015), citing Minnesota v. Mille Lacs Band of

Chippewa Indians (1999), and Lac Courte Oreilles Band of Lake Superior

Chippewa Indians v. Wisconsin, see also United States v Gotchnik (2000)), and

WHEREAS,

the Chippewas’ federal treaty protected usufructuary property rights to hunt,

fish and gather wild rice in order to earn a modest living are in fact the same on

and off reservation, yet the U.S. Army Corps of Engineers appears to apply

different criteria to permit applications for activities within reservation's exterior

boundaries than would be applied to permit application for activities outside a

reservation' exterior boundaries as demonstrated by Regional General Permit003-MN in the State of Minnesota Except for within the exterior boundaries of

Indian Reservations, and

WHEREAS,

the U.S. Army Corps of Engineers (USACE) recognized and responded to

Chippewa treaty bands and the Great Lakes Indian Fish and Wildlife Commission

in their 1997 Issue Paper and District Recommendation, the Agency’s Trust

Responsibilities Toward Indian Tribes in the Regulatory Permitting Process for

Crandon Mine in Question

Page 3 of 9

WERBC Resolution

Chippewa Consent for USACE

Enbridge Line 3 Water Quality Permitting

13.

Should the Corps apply different criteria to permit applications

for activities within reservation’s exterior boundaries than

would be applied to permit application for activities outside a

reservation' exterior boundaries?

[Answer] No. The criteria applied should be the same. However, it is

very likely that an activity that is sited within the reservation’s exterior

boundaries would have a greater impact on Tribal resources than would

an activity that is sited off reservation. Moreover, the applicant would

still have to comply with all applicable local regulations, thus the Tribe

may be able to impose its requirements on the applicant. Such

requirements would be independent of and in addition to any Corps'

permit requirement or condition. Further if the Tribe has jurisdiction

over the activity and exercises its jurisdiction to prohibit the activity the

permit application to the Corps should be denied without prejudice.

(See MCT Tribal Executive Committee (TEC) Resolution 32-17, Exhibit A, Issue

Paper and District Recommendation, the Agency’s Trust Responsibilities Toward

Indian Tribes in the Regulatory Permitting Process issued September 29, 1997 by

J. M. Wonsik, Colonel, Corps of Engineers, District Engineer, St. Paul Office to

James Schlender, Executive Administrator, Great Lakes Indian Fish Wildlife

Commission, resulting from a permit application by Crandon Mining Company,

the St. Paul District had been asked by several Native American tribes to address

the nature and extent of the Corps’ trust responsibilities toward Indian tribes in

the Corps’ regulatory permitting process), and

WHEREAS,

that the 1997 USACE Issue Paper is now over two decades (20+ years) old and

that the Tribal Executive Committee of the Minnesota Chippewa Tribe requested

that “the U.S. Army Corps of Engineers: (1) consult with the Minnesota Chippewa

Tribe and its constituent bands to update the guidelines (Exhibit A) [the 1997

USACE Issue Paper]; (2) make a firm unequivocal commitment that it will follow

those guidelines and fulfill its trust obligations to Indian tribes; and (3) enter into

agreements with the MCT or constituent band to establish protocols for tribal

input and consultation on proposed actions impacting tribal cultural and natural

resources” by TEC Res. No. 32-17 duly adopted on Nov. 30, 2016, and

WHEREAS,

the reservation of sovereign rights is an important part of our ongoing struggle to

preserve a culture that is best understood in terms of our relationship with the

natural environment and that there is no economic framework that can properly

define the value of manoomin to the Ojibwe people because manoomin is

central to Ojibwe cultural identity, spiritual traditions, and physical well-being

and serves as an important indicator species to the ecology of Minnesota’s lakes

and rivers and provides critical food and habitat to both endemic and migratory

species, and

Page 4 of 9

WERBC Resolution

Chippewa Consent for USACE

Enbridge Line 3 Water Quality Permitting

WHEREAS,

Tribal members continue to harvest and rely upon manoomin for religious

purposes including naming ceremonies, funerals, Midewiwin ceremonies, and

various seasonal feasts and these activities are critical components in

perpetuating Anishinaabe lifeways and cultural practices, whereby the OjibweAnishinaabe spiritual beliefs mandate the use of certain plants, animals, and fish

in ceremonies attendant to hunting, fishing, and gathering activities and these

ceremonies ensure the perpetuation of the resources and the physical, mental,

and spiritual well-being of the person for bimaadiziwin “living a good life”, and

WHEREAS,

White Earth Band and the 1855 Treaty Authority have adopted Rights of

Manoomin ordinances to protect wild rice on and off reservation and given

notice of consent required to Minnesota Governor Walz. (See Exhibits B-E; White

Earth Chairman Tibbetts, Jan. 25, 2019 letter to Governor Walz Re: 401 water

quality consent with the attachments; White Earth Band of Ojibwe Resolutions

(001-19-009 and 001-19-010) and 1855 Treaty Authority Resolution 2018-05).

We can see the Corps understands that

As part of the [Corps’] authorized mission of conserving and managing

natural resources, the Headwaters attempt to maintain stable operating

levels for the purpose of wild rice[, . . . which] grows in shallow to

moderate water depths (1-3 feet) and is affected by water flow, turbidity,

water quality and water level fluctuations. Wild rice is sensitive to varying

water levels and production in individual stands from year-to-year is

subjective, depending on local water conditions. Wild rice has special

cultural and environmental significance to the Native Americans. From an

environmental perspective, it is an important habitat component and is

often viewed as an ecological indicator species due to its sensitivity to

growing conditions.

(See USACE- Mississippi River Headwaters Reservoirs Master Plan, Main Report

October 2016, at p 36).

According to the 2016 Main Report, 2.8.1 Climate Change and Wildlife

Impacts the Master Plan emphasizes the need to have adequate resource

protection to maintain species diversity, habitat quality, and outdoor

recreational opportunities. Environmental challenges beyond our control

could significantly impact natural resources. Climate change may alter the

landscape of the Headwaters in multiple ways, the most visible being

changes in river flows and/or lake levels. More erratic high flows and

droughts can influence rates of siltation, rim erosion, lake access for

recreational boating, and flood protection. Wildlife can move or migrate

as conditions change, but plants have difficulty surviving significant

climatic change. Some species can be generalists across a wide range of

Page 5 of 9

WERBC Resolution

Chippewa Consent for USACE

Enbridge Line 3 Water Quality Permitting

growing conditions, but more conservative species with very specific

growth niches will likely be impacted. The exact impacts are difficult to

predict, but climate is singularly the most influencing determinant of

landscapes.

(See Main Report at p 48). The Main Report also speaks to Tribal Trust

responsibility and that:

As part of the Corps’ tribal trust responsibility, the Corps considers the

relationship between local Native American tribes and the Federal

Government on various operational elements of the Headwaters’

projects. Portions of the Headwaters’ project sites are located within

the boundaries of Native American Reservations. The lakes and

streams of the Mississippi Headwaters’ area, as well as the plants and

animals associated with them, hold spiritual, economic, and

subsistence value to the various bands and tribes in the area. Natural

resources are a fundamental aspect of their cultural identity.

The greatest density of culturally important archeological sites in the

Headwaters’ area is typically found along the shorelines of lakes,

rivers, and streams. These sites are located both above and below the

current water levels. The primary tribal goal, with regard to cultural

resources, is to ensure that the heritage of Native Americans is

preserved as an integral part of community life, providing orientation

to its people, their language, music, stories, and traditions. The

preservation of these cultural sites is considered a vital legacy to be

maintained for future generations.

(See Main Report at p 59), and

WHEREAS,

the Chippewa ceded territories in Minnesota, including the 1855, are the actual

headwaters of 3 of the 4 major North American continental divides; north from

the Red River basin to Hudson Bay, East to the St. Louis and other rivers sourcing

Lake Superior and the other Great Lakes, and south including all of the upper

Mississippi River watershed to the Gulf of Mexico, and

WHEREAS,

the circuitous nature of the upper Mississippi River in particular begins adjacent

to the White Earth reservation (established by the 1867 Treaty) and then flows

through the 1855 ceded territory reservations of Cass Lake, Winnibigoshish,

Pokegama, Sandy Lake, Gull Lake and Rabbit Lake, and then forms the border

between the Chippewa territories ceded in 1847 and 1837, with interconnected

tributaries, upstream and downstream in all aquatic ecosystems which are the

primary sources for important wild rice environments, wild life and fisheries, and

Page 6 of 9

WERBC Resolution

Chippewa Consent for USACE

Enbridge Line 3 Water Quality Permitting

WHEREAS,

for the Chippewas of the Mississippi, abundant, clean water is inextricably linked

to the self-sufficiency, economic development and security of present and future

generations of northern Minnesota’s tribal communities’ health and welfare and

consequently the upper Mississippi watershed (in light blue on the map), from

the Headwaters of the Mississippi River adjacent to White Earth Reservation

through the various 1855 reservations and ceded territories through Brainerd to

St. Cloud, must be recognized as one, long, continuous, first in time, chain of

reservations, seamlessly linked together as a common, Chippewas’ of the

Mississippi priority quality water property rights’ under the Winter’s Doctrine

including all the upper Mississippi watershed tributaries, lakes, aquifers,

wetlands and natural resources, reserved for the Chippewas of the Mississippi to

enjoy and protect, and

WHEREAS,

the White Earth Reservation has intervened in the Enbridge Application process

for certificate of need and routing permits in the Minnesota Public Utilities

Commission (PUC) for both Sandpiper (fracked Bakken crude) and Line 3

Replacement (Canadian extracted tar sands crude) pipeline projects to protect

the freshwater resources habitat that support wild rice and prevent related

Page 7 of 9

WERBC Resolution

Chippewa Consent for USACE

Enbridge Line 3 Water Quality Permitting

climate change impacts to air and water quality resources and our primary,

natural food resources that rely upon avoiding further degradation to the overall

upper Mississippi River from the Headwaters at Lake Itasca by White Earth to

below Brainerd, and

WHEREAS,

the Tribal Executive Committee of the Minnesota Chippewa Tribe directed on

March 15, 2017 that a tribal cumulative impacts assessment be initiated

immediately by TEC Res. No. 72-17 (See Exhibit F); the Anishinabe Cumulative

Impacts Assessment (ACIA) was developed and Notice of public comment period

issued, with a follow-up PUBLIC NOTICE Extension of Comment Period for

Minnesota Chippewa Tribe’s Cumulative Impact Assessment for Line 3 to

February 2, 2018, (e-filed on the MN PUC e-docket Nov. 30, 2017 for Enbridge’s

certificate of need application at 14-916 and Enbridge’s route permit application

at 15-137) for all parties on the PUC Line 3 e-dockets, and

WHEREAS,

the White Earth Reservation was an active partner in the development the

Anishinabe Cumulative Impacts Assessment (ACIA) and did post the final,

completed ACIA as a report on MN PUC e-docket for Enbridge’s certificate of

need application at 14-916 and Enbridge’s route permit application at 15-137 on

February 23, 2018, and

WHEREAS,

the State of Minnesota has been actively engaging in large infrastructure projects

that pose permanent, environmental damages to Chippewa tribal resources on

and off reservations, which threaten the long-term health, safety and welfare of

the Chippewa with federally protected usufructuary property rights to hunt, fish

and gather wild rice in perpetuity throughout tribal aquatic resources in violation

of a series of Chippewa Treaties with the United States of America and in

violation of Public Law 280, section (b) excluding state jurisdiction over water

rights in Indian Country; and which are ultimately violations of our federally

protected civil rights under 42 U.S.C. §1981 et seq, and

WHEREAS,

on April 13, 2018 the 1855 Treaty Authority adopted the Anishinabe Cumulative

Impacts Assessment (1855 TA Res. 2018-03, See Exhibit G) as the environmental

risk analysis tool for the Line 3 pipeline projects across the 1855 ceded territory

and finds that climate change and other consequential and collateral impacts are

too great and therefore adopted a No Build Option to protect off reservation

natural resources, and

WHEREAS,

on Feb. 21, 2019, the 1855 Treaty Authority provided Comments on USACE

Permit Application No.: 2014-01071-TJH, for Enbridge Line 3 Replacement,

regarding environmental impacts to Chippewa Treaty Protected Resources and

Cultural Properties to the U.S. Army Corps of Engineers that reveal the scope of

the Corps’ Line 3 Clean Water Act Jurisdiction primarily over 3 water crossings

across navigable waters is insufficient to protect the more than 200 water bodies

Page 8 of 9

WERBC Resolution

Chippewa Consent for USACE

Enbridge Line 3 Water Quality Permitting

of impacted Chippewa territorial water quality and usufructuary property rights

of the upper Mississippi River watershed (See Exhibit H), and

WHEREAS,

the bulk of the waters of the United States, the other party to the Chippewa

treaties, have predominantly become public waters of Minnesota under Section

401 review of the Clean Water Act by the Minnesota Pollution Control Agency,

and which Minnesota public waters are where most of the wild rice grows and

consequently the White Earth Band cannot ignore that Climate change affects

lakes, walleye in complex ways1 and that years later an Ojibwe leader says Mille

Lacs walleye have not recovered yet2; that any increase in tar sands extraction

will only speed up climate change and compound environmental and aquatic

problems in Minnesota; and when walleye fishing people can’t fish Mille Lacs,

they usually shift further north to Big Sandy, Pokegama, Big Winnie, Cass Lake

and Leech Lake, which are all original 1855 reservations, and

WHEREAS,

the White Earth Band has adopted the Minnesota Chippewa Tribe’s Anishinabe

Cumulative Impacts Assessment as the White Earth Band’s environmental risk

and evaluation tool for the meaningful assessment of the short and long term

impact of the abandonment of the existing Line 3 pipeline, as well as the impacts

from tar sands extraction, greenhouse gases, climate change and additional,

future pipeline abandonment from the decreased demand for crude oil, and

THEREFORE BE IT RESOLVED, that the White Earth Band FINDS that the Minnesota Chippewa

Tribe’s Anishinabe Cumulative Impacts Assessment is superior to the EIS that has been

approved by the Minnesota PUC in examining the cumulative impacts from the proposed Line 3

project upon surface waters, groundwater, fish, wildlife, waterfowl, wild rice, plants, as well as

the broader environmental consequences resulting from the proposed Line 3 project, which

necessarily requires prohibiting the Line 3 Pipeline Replacement, new route corridor for the

replacement pipeline across the 1855 ceded territory in violation of White Earth Band and 1855

Treaty Authority’s established codes, laws and customs required consent as co-owners, and

NOW THEREFORE BE IT FURTHER RESOLVED, that the White Earth Band in exercise of original,

retained jurisdiction from the Northwest Ordinance, 1795 Treaty of Greenville, the 1825 and

1826 Chippewa Treaties with the United States and sovereignty of the thousands of treaty

beneficiaries and the jurisdiction of the federally recognized reservation with tribal regulatory

authorities for the reserved, priority, water quality property rights and Rights of Manoomin

now requires that the United States Army Corps of Engineers fulfill its legal obligation under

federal laws to honor and respect the White Earth Band’s and Chippewas of the Mississippi

1

See Climate change affects lakes, walleye in complex ways, by Elizabeth Dunbar on Minnesota Public

Radio, Sept. 9, 2015 at https://www.mprnews.org/story/2015/09/09/walleye-climate-change

2

See Ojibwe leader says Mille Lacs walleye have not recovered yet by Tony Kennedy Star Tribune

OCTOBER 1, 2017 at http://www.startribune.com/ojibwe-leader-says-mille-lacs-walleye-have-notrecovered-yet/448842053/

Page 9 of 9

WERBC Resolution

Chippewa Consent for USACE

Enbridge Line 3 Water Quality Permitting

rights to parity recognition of usufructuary property rights in the 1855 treaty ceded territory,

same as the 1837 and 1854, and more importantly include all of the “off reservation”

interconnected waters, quality property rights as describe and provided for in the Winter’s

Doctrine for the upper Mississippi River in Minnesota, for the same environmental protection

treatment and as “on reservation” for the Line 3 Clean Water Act permitting under 404/408

with appropriate consultation and required consent of the Chippewas of the Mississippi, and

BE IT FINALLY RESOLVED, that White Earth Band requires written confirmation by the Corps’

that separate, free and prior, informed consent (as required by the United Nations Declaration

on the Rights of Indigenous Peoples (UNDRIP)) is required by and from the White Earth Band

and Chippewas of the Mississippi as co-owner of the undivided, half interest in the ceded

territories’ natural resources and waters that link them, within the State of Minnesota

regarding eminent domain over public waters and lands for this Line 3 pipeline project.

We do hereby certify that the foregoing resolution was adopted by a vote of_____ for, _____

against, _____ silent, a quorum being present at a special meeting of the White Earth

Reservation Business Committee held on__________________, 2019 in __________________,

Minnesota.

___________________________________________

Eugene “Umsy” Tibbetts, Vice-Chairman

___________________________________________

Leonard Alan Roy, Secretary/Treasurer