Keystone’s Not Dead: Don’t Relax!

Mike Myers

Environmentalists, Indigenous folks and others were overjoyed to hear that President Obama has cancelled the Keystone XL Pipeline. Keystone got a lot of attention because it was a major international project and as such required federal and state permitting.

But I don’t think we’ve heard the last of it, especially if any of the contenders in the Republican clown car get into the White House. Should this happen then Keystone will be back with a vengeance and on an extremely fast track for approval. Just because Obama has said no doesn’t mean that it’s gone away. The Liberal government in Canada said that it was “disappointed” in Obama’s decision, meaning they will take a wait see position to see the outcome of presidential election.

Without Keystone out of the way for the moment people need to turn their attention to the Sandpiper Pipeline. The Sandpiper pipeline would be a 610-mile, $2.6 billion pipeline across North Dakota and Minnesota to transport 1.4 million barrels of oil per day from the Bakken region of North Dakota (the fracking fields) to Superior, WI, so it could be loaded onto ships and rail for further transport. The pipeline is being proposed by Enbridge Energy, a Calgary, Alberta, Canada, company, who already operates other oil pipelines in Minnesota and was driving the Keystone development.

Sandpiper hasn’t gotten near as much attention as Keystone because it is wholly within the U.S. That project doesn’t require federal permitting. Just state permitting. And this is where the battle has been, primarily in Minnesota. The focal point has been the Minnesota Public Utility Commission (PUC) that is responsible for issuing a Certificate of Need for the pipeline – which it did without requiring an Environmental Impact Statement.

This forced the Minnesota Center for Environmental Advocacy and Friends of the Headwaters to appeal this decision to the Minnesota Court of Appeals. On September 14, 2015, the Court of Appeals unanimously ruled that the lack of an EIS violated the Minnesota Environmental Protection Act and revoked the Certificate of Need.

And now the plot thickens, on October 16, 2015, Minnesota Attorney General Lori Swanson filed an appeal with the Minnesota Supreme Court asking them to overturn the Appeals Court decision. This move puts Swanson fully on side with big oil and she has the luxury of using taxpayer dollars to fund her side of the fight.

At the same time Wisconsin is requiring an EIS for the 18 mile stretch of the pipeline in their state. And in another interesting twist, the Army Corps of Engineers is considering preparation of an EIS to protect Indigenous rights.

The Indigenous rights organization Honor the Earth has underlined how deeply flawed the PUC system of approvals is and how that system is flawed because it:

·      “Does not take into account the environmental justice impacts of building new pipelines;

·      Does not take into account the implications of treaty rights in the 1855 Treaty Area;

·      Does not consider the full impacts of pipeline construction and likely oil spills on wild rice; and

·      Disregards tribal governments and Native peoples by refusing consultation and refusing to hold hearings within tribal communities.”

The 1855 Treaty raises the argument to a level where the federal government should be coming in on the side of the Ojibwe territories. But not because of the so-called trust responsibility but rather because of Article 7 of the treaty that states:

“Article 7 The laws which have been or may be enacted by Congress, regulating trade and intercourse with the Indian tribes, to continue and be in force within the several reservations provided for herein; and those portions of said laws which prohibit the introduction, manufacture, use of, and traffic in, ardent spirits, wines, or other liquors, in the Indian country, shall continue and be in force, within the entire boundaries of the country herein ceded to the United States, until otherwise provided by Congress.”

The “laws” being referred to here happen to be in the U.S. Constitution and states:

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Note in both instances the use of the phrase “with the Indian Tribes”. And they both specifically relate to trade and intercourse or commerce.

 Unfortunately over the past decades the American Congress and Supreme Court have twisted this into the bizarre theory of plenary power. It’s equally true that there hasn’t been a solid defense mounted to counter this racist theory and the impacts that have come from it.

But that doesn’t mean that folks shouldn’t try. Throughout the 1800’s the phrase “with the Indians” meant the regulation of commercial relations. In his paper, “The Original Understanding of the Indian Commerce Clause,” Robert G. Natelson does an excellent job of trying to clarify how this has become so distorted and confusing. As he points out,

The misunderstandings in the literature begin with the meaning of the word commerce. Some have argued that the Founders intended commerce to encompass not only trade but all gainful economic activity,90 or even any and all intercourse whatsoever.91 Although such an expansive meaning seems out-of-place in a listing of enumerated powers—and, indeed, counter-intuitive generally—several recent studies have taken it seriously enough to examine how the word was employed in the lay and legal contexts before and during the Founding Era.92 Those studies have found that, in the legal and constitutional context, “commerce” meant mercantile trade, and that the phrase “to regulate Commerce” meant to administer the lex mercatoria (law merchant) gov­erning purchase and sale of goods, navigation, marine insurance, com­mercial paper, money, and banking.93 Thus, “commerce” did not include manufacturing, agriculture, hunting, fishing, other land use, property ownership… The sources further demonstrate that the meaning of commerce was no broader in the Indian context than in the context of foreign and inter­state relations.95 There would be a presumption against this in any event. Contemporaneous legal sources testify to a rule of construction holding that the same word normally had the same meaning when applied to dif­ferent phrases in an instrument.96 Varying the meaning of “Commerce” with varying phrases of modification (“with foreign Nations,” “among the several States,” and “with the Indian Tribes”) would have violated that rule.

In this context, we have an American business entity trying to pass or navigate through Indigenous territory for the purpose of trade and commerce. Not with the Indigenous peoples, but most certainly needing their permission to pass through their territory. Regulating who and for what purpose anyone may enter an Indigenous territory is an inherent right, an essential part of Indigenous sovereignty.

This is an important position for the affected Indigenous governments and peoples to take. It also opens an opportunity for inter-governmental cooperation. The Three Affiliated Tribes, under whose territory lies most of the Bakken Field, can make obtaining Indigenous governmental permission a requirement for their participation in the project.

The environment is not the only dimension to this argument and we need to use every one we can to find a victory.

Mike Myers is the founder and CEO of Network for Native Futures, a Native non-profit that works with Indigenous nations, communities and organizations internationally. The network’s mission is to support sustainable development and nation re-building through providing of technical assistance, training and consulting.

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