Some things to know about Native American rights regarding land use in Northern Minnesota
and how they affect a proposal to replace an old pipeline

Enbridge Energy is asking for permission from the state Public Utilities Commission to replace an aging pipeline that would cross 337 miles of Minnesota from the far northwest border with North Dakota to Superior, Wisconsin. The majority of the pipeline route would follow pipelines or electric transmission lines already in operation.

Tribes oppose the project, saying the pipeline would desecrate their lands, violate treaty rights and poison the water. They are asking that the existing pipeline be closed down and be remediated and no new pipeline built. 

Most of what is now the State of Minnesota was ceded by Native Americans to the federal government in a batch of treaties in the 1800s. Tribes exchanged land for payments of cash and goods and the right to hunt, fish and gather (wild rice, in particular) on the ceded land.

Courts, including a 1999 decision in Minnesota’s Mille Lacs lawsuit, have affirmed tribes’ “usufructuary” rights, the right to use land owned by another without causing damage or changing it in any substantive way. Native Americans have usufructuary rights over millions of acres of land in Minnesota.

Treaties have been widely litigated over the years, and the U.S. Supreme Court has established guidelines for their interpretation: Ambiguities in treaties must be decided in favor of tribes, treaties must be interpreted as Indians would have understood them and treaties must be construed liberally in favor of tribes. For example, tribes would have understood that reserved rights to hunt, fish and gather mean the right to live off the land.

Tribes also fear that pipeline construction will disturb sacred sites. In Minnesota, it is a felony to disturb a burial ground. Sites are also protected by the National Historic Preservation Act, which states that the federal government, Indian tribes and others will “foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations.”

Native Americans and the environmentalists who have joined them in opposition to the pipeline also argue that we have enough oil and must begin the transition to clean energy. 

About half the oil we consume is gasoline. Here are some of the 6,000 other products made from petroleum.

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