# Chippewa Consent for USACE (2019)

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URL: https://www.frixlaw.com/law-library/documents/tribal%3Aminn_chippewa_white_earth%3A748d54de496c6cc5

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

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

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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

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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

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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

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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

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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

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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

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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/

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aminn_chippewa_white_earth%3A748d54de496c6cc5. Public record. Not legal advice.