Matt Doll, Minnesota Environmental Partnership
Earlier this month, advocates for clean water and tribal rights breathed a sigh of relief as district court Judge Leslie Metzen dismissed charges against three Anishinaabe women – Winona LaDuke, Tania Aubid, and Dawn Goodwin – who were among the leaders of protests against the Enbridge Line 3 tar sands oil pipeline.
These misdemeanor charges for protesting weren’t the first to be dismissed. Most of the water protectors arrested for disrupting Line 3 construction have already had their cases dismissed or resolved with minor penalties. But the high profile of the defendants, who were among the leaders of the movement against Line 3, and the words of Judge Metzen’s order to dismiss the charges, are what make this case different.
Metzen wrote in her Aitkin County court order that “These cases and these 3 defendants in particular have awakened in me some deep questions about what would serve the interests of justice here.” She described and condemned the long history of genocide by the dominant colonial culture against the Indigenous peoples of Minnesota and Wisconsin, and added, “I respect and value their presence on this land.”
Metzen further expressed her respect for the peaceful protest these women and many hundreds like them carried out to protect the waters of their home from Line 3. She ended her memo with the simple statement: “To criminalize their behavior would be the crime.”
The ruling itself only applies to these three water protectors, its precedent applying only in Aitkin County’s district court. But to those watching closely, it’s a rallying moment. It reflects a slow, yet seismic shift in the relationship between the dominant governmental institutions and the tribes they’ve so often betrayed.
A changing legal landscape
That’s the view of Frank Bibeau, an Anishinaabe attorney who served on LaDuke, Aubid, and Goodwin’s defense team.
“Everything’s changing right now – the climate, the water, and the battleground’s changing, too,” said Bibeau.
Bibeau is an enrolled member of the White Earth Nation and lives on the Leech Lake Indian Reservation, and he’s been fighting legal battles over Indigenous sovereignty and natural resources for years. Much of his recent work has been focused on supporting Line 3 defendants, but he’s also sued the Minnesota DNR on wild rice issues and advised tribes in other states on how to fight pipelines and protect protestors’ rights and liberty. All this activity has given him something of a bird’s eye view of a shifting landscape.
When I asked Bibeau about the significance of the dismissal order, he asked me a question of his own: “Did you read the McKeig concurrence on the PolyMet case?”
When the Minnesota Supreme Court overturned the wastewater permit for the PolyMet mine (now also known as New Range) last month, Justice Anne McKeig wrote a concurring opinion, lambasting the Minnesota Pollution Control Agency and the EPA for failing to fully consider the Fond du Lac Band’s tribal water quality standards. Not long after, the U.S. Army Corps reversed a separate PolyMet permit – also due to Fond du Lac’s standing as a “state” for water quality purposes – in a decision that may have doomed the project.
“A couple of judges have now stepped outside the box and said, “this isn’t right,’” said Bibeau. That could open the door to other courts deciding cases on similar logic, or at least giving more legal weight to the longstanding – and too often ignored – treaties between the United States and the Anishinaabe tribes.
It would be a real shift away from what Bibeau aptly calls “colonial law taught at colonial law schools,” which has (recently) respected some treaties, ignored others, and tended to side with state and county governments on natural resources issues.
Moving away from colonial law
Bibeau and attorneys like him deserve their share of the credit, too. They’ve employed novel legal tactics, like filing to have the water protector cases transferred from county court to tribal court.
While Minnesota counties generally enforce the same laws, they have significant discretion on how to prioritize their cases. Different county sheriffs and prosecutors handle pipeline protests differently. Moving almost all of the protest cases to tribal court helped ensure better and more consistent outcomes for water protectors.
Bibeau, working with fellow attorney Joe Plummer and the White Earth band, have spearheaded another new tactic against pipelines: using a “rights of nature” argument to protect their treaty-guaranteed resources. They used a 2018 White Earth tribal law protecting the rights of wild rice – manoomin – to sue the Minnesota DNR on manoomin’s behalf. They argued that Line 3’s construction would harm this vital food resource, whose harvest is guaranteed by treaty to the Anishinaabe of Northern Minnesota within vast swaths of the state.
Unfortunately, that case was dismissed on the grounds that Line 3 lies outside of tribal boundaries, despite its impact on wild rice in the lands that are also protected by treaties. But Bibeau remains undaunted. He’s now adapting the rights of nature argument to another treaty-guaranteed resource: the fish that make their home in the treaty lands’ lakes and rivers. Time will tell how this tactic fares in the changing landscape, but it’s not only the fish that would benefit from its success.
Meanwhile, White Earth has begun to set tough new rules to protect water and manoomin from the polluting agricultural activities, like factory farms – that have encircled its reservation lands.
Enbridge avoids accountability
Even as we celebrate some degree of justice for water protectors, we must recognize – as Judge Metzen did – that state agencies and Enbridge got what they wanted. The new Line 3 pipeline was constructed despite staunch opposition from water protectors, several tribes, and climate and environmental organizations. The use of the pipeline to transport the dirtiest oil on Earth will continue to be an ongoing climate catastrophe. And as so many people predicted, Enbridge’s pledge to protect the waters of Minnesota during construction proved to be an empty one.
As MEP has extensively covered, Enbridge breached multiple aquifers along the pipeline’s route, spewing many millions of gallons of water and harming vulnerable wetlands. At the Clearbrook breach, the company delayed reporting the issue to state regulators and attempted a slapdash fix, which ended up making the problem even worse. Their “repair” of the LaSalle aquifer breach to the east failed as well.
Frank Bibeau credits the discovery of the damage to Indigenous pipeline monitors and to another assertion of tribal rights. Using its standing as a government, White Earth secured the authority to conduct thermal imaging of the LaSalle aquifer, and worked with Waadookawaad Amikwag and other groups to analyze it.
Indigenous and environmental groups have called for Enbridge to face full accountability for its environmental crimes and cover-ups. The Canadian company has faced fines – which add up to a miniscule percentage of its annual profits – and a misdemeanor charge with “continuance for dismissal,” which means that it will be dismissed as long as Enbridge cleans up its act. As the further aquifer breaches show, Enbridge can’t be counted on to do so.
The misdemeanor charge for Enbridge, compared with the misdemeanor protest charges for water protectors, illustrate the two systems of justice at work in Minnesota. Many people, especially Indigenous water protectors, have faced arrests, physical harm, and loss of liberty for defending water, the climate, and tribal rights. No one at Enbridge will face any such consequences for the much more harmful crime of depleting vulnerable aquifers. Line 3 will continue to operate, at least for now.
But that’s not the end of the story.
“What you’re seeing there isn’t just Mother Earth, but women in general, mothers across the board, are starting to step up,” said Bibeau. He spoke of the three women whose charges were dismissed, to the judge who dismissed them, and to many more water protectors, attorneys, and others writing a new chapter of the fight for tribal sovereignty.
As hard as recent news has been for our water and climate, I think that Frank Bibeau is on to something. If we’re going to protect our Mother Earth from the worst excesses of our species, we should take our cues from those who’ve put the most of themselves on the line – especially the Indigenous women who have stood against the oil pipelines.
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