Enbridge and the Takeover of Red Lake Land
“He will try to buy the land from you, but do not sell it; keep it for an inheritance to your children.”
~ Asiniiwab (Little Rock)
On February 28, 2013, a .45 acre of Red Lake ceded land became the focus of Anishinaabe land defenders and pipeline activists. Led by Red Lake member Marty Cobenais, the Nizhawendaamin Inaakiminaan (We Love Our Land) group established an encampment over the Enbridge pipelines at Leonard, Minnesota. Cobenais said at the time, “We plan to camp on this land until the pipelines cease to pump oil through them.”
Although the encampment wasn’t sanctioned by the Red Lake Tribal Council, a Red Lake District Representative visited the site and informed Cobenais that the pipelines were illegally on Red Lake land and the council wanted them removed.
A sacred fire was lit and a medicine pole was erected. The camp continued through the late winter into the early fall. It was supported by environmentalist and activist groups including the Indigenous Environmental Network and MN350.
Through its educational tours at the camp, Nizhawendaamin Inaakiminaan successfully created a broad awareness of the destructive hazards associated with Enbridge and its pipelines. However, the effort to shut down the pipelines was unsuccessful. With the dispersal of the camp in the fall, there were hopes that Darrell Seki, the newly elected chairman of the Red Lake Band, would press forward by charging Enbridge with trespass and force a removal of the pipelines.
Lakes provided locations for settlements and rivers served as routes to the Red River fur trade. The Gaa-waagamig-zaaga`igan (Clearwater River) flowed west and emptied into Miskwaagamiiwi-ziibi (Red Lake River) which flowed westward to drain into Miskwaaziibi (Red River); Miskwaaziibi flowed north into Manitoba and drained into Lake Winnipeg.
Niiyo-Gaade-ziibiins flowed west out of Niiyo-gaade-zaaga’igan and turned north to drain into Gaa-waagamig-zaaga’igan approximately 15 miles upstream. The creek and the lake were named after a Red Lake Ojibwe man who lived there – Niiyo-Gaade, or Four Legged.
Under the Old Crossing Treaty in 1863, over 11,000,000 acres were ceded in North Dakota and western Minnesota by the Red Lake and Pembina Bands. After the treaty, Red Lake was left with a land base of 3,260,000 acres. In the 1889 Agreement, another 2,905,000 acres were ceded including Niiyo-gaade-zaaga’igan.
However, before the 1889 Agreement was signed, the Red Lake unceded lands were trespassed upon by timber companies who roamed through the region to clear-cut the virgin forestland. Homesteaders followed in their wake. As early as 1886, settlers began to move into the area under the guise of the Homestead Act of 1882, although the Act was not legally binding on land that had yet to be ceded.
In 1902, the area disassociated itself from its Ojibwe roots, and, under the tenets of Euro-American colonialization, the area became Clearwater County. Niiyo-Gaade-zaaga’igan was renamed Four Legged Lake and its creek became Ruffee Creek after Charles A. Ruffee, who wrote the “Report of the Condition of the Chippewa.” Today, the Clearwater River (formerly Gaa-waagamig-zaaga-igan) marks the western border of the Red Lake Diminished Reservation.
Order of Restoration
“Whereas, according to the records of the Commissioner of the General Land Office there remain of such ceded lands 157,000 acres, more or less, which have been opened to settlement and sale and which now are or hereafter may be classified as undisposed of, for which the Indians have not been paid, and which are of little or no value for the original purpose of settlement but which will prove of value to said Indians of the Red Lake Reservation if restored to tribal ownership…”
The size of the tracts varied from over 600 acres to as little as .30 acres. The small tracts had little use in terms of property; many were located on the edges of farm fields or within woodlands. In 1999, the tracts were recorded in the Federal Register including Lot 8, a .45 acre tract, located at Four Legged Lake in Clearwater County.
However, Lot 8 wasn’t a useless tract of land located in the middle of a swamp or field. Its value was disproportionate to its size. Each day, millions of dollars flowed through the four pipelines buried three feet under its surface.
The history of trespassing that began with the timber companies and homesteaders continued in 1949 when the Lakehead Pipe Line Company built a pipeline that crossed a tract of unceded Red Lake land, Lot 8, at Four Legged Lake. Additional pipelines followed in 1954, 1963, and 1973. In 1968, Enbridge bought Lakehead and continued the trespass by replacing the old pipelines with the Alberta Clipper and Southern Lights pipelines.
In addition to trespass, there was a dark side to the pipelines. During the Enbridge encampment, Tito Ybarra, a protester from Red Lake, said: “It’s not a question of if these pipes will leak—it’s just when, and where. The oil and chemicals they use to harvest and produce this oil are very, very toxic. It gets into the groundwater, which gets into the rivers and streams, and it causes cancer. It’s been poisoning communities up in Canada.”
A Kalamazoo-type spillage at Lot 8 presents a grave danger to Red Lake lands. A spill at West Four Legged Lake, where Lot 8 is located, would enter Ruffee Creek (also called Ruffy Brook), flow north for approximately 15 miles, and join the Clearwater River. From where the two intersect, it is about a mile to the Red Lake border. Although such a spillage wouldn’t reach Lower Red Lake, it would affect a critical fish and wildlife habitat on the western border.
The Enbridge Agreement and Vote
Enbridge and the Band have agreed to exchange land, and Enbridge will pay 18.5 million for the trespass at the Four Legged Lake property. Within a month, Enbridge will place 18.5 million in an interest building escrow account. In exchange, the Band will designate one or more parcels of land within the 1863 treaty area/1889 agreement for Enbridge to purchase on behalf of the Band and will begin the fee to trust land exchange. Red Lake’s constitution and federal regulations require that the land coming into trust must be of equal or more value than the land coming out of trust. Once the land exchange is complete, the Band will take possession of the total value in the escrow account including any interest.
The Council will vote to either accept or deny the agreement during the December 22, 2015 Special Council Meeting.
At the special meeting on December 22, the Council released a 6-page document to tribal members – “A History of the Enbridge Pipeline Trespass and Negotiations.”
Excerpts: A History of the Enbridge Pipeline Trespass and Negotiations
The Pipelines and the Trespass
- In the 1980s, the BIA discovered that the pipelines appeared to be in trespass and exchanged correspondence with Lakehead.
- From available documents, it appears that Lakehead thought that the Lot 8 Lands were actually owned by an adjoining landowner and got an easement from that landowner. Apparently, Lakehead hired someone to do a legal opinion regarding the potential trespass, which concluded that it was not in trespass.
- The BIA did not take further action before the program (called “2415”) looking at trespasses on Indian lands was shut down.
- In 2007 or so, the BIA apparently “rediscovered” the trespass when Enbridge (which had since bought Lakehead) was planning to add two pipelines along the same route.
- Enbridge and Red Lake began discussing the issue around that time.
- Because the issue had not been resolved by 2009, two things happened:
The BIA issued a Notice of Trespass, which the Band requested that the BIA not act on because negotiations were underway, and
Enbridge installed the two new pipelines (Alberta Clipper and Southern Lights) on a slightly different route so that they would not pass across the Band’s Lot 8 Lands.
- Enbridge is now seeking permission to move Line 3 (the 34” pipeline) to a different route.
- Discussions between Red Lake and Enbridge started out in late 2007 and into 2008 very informally, largely through emails and teleconferences between Red Lake Engineering and local Enbridge personnel.
- First brief presentation to the Council in 2009
- The BIA issued its letter to Enbridge stating that the BIA had “reason to believe” that Enbridge was in trespass on Lot 8.
- Red Lake asked the BIA to hold off to see if negotiations with Enbridge could produce a beneficial outcome for the Tribe.
- Enbridge agreed to pay for an expert to value the trespass, but Red Lake got to control her work. (The expert had recently finished working for Fond du Lac on its settlement for the same pipelines crossing to trust and allotted lands.)
- In 2010, Enbridge agreed to make one of its engineers available to the Red Lake to provide the cost data necessary to calculate the costs of moving the pipelines to go around Red Lake land
- The Red Lake analysis of that data concluded that it would cost Enbridge between $10-12 million to move the lines, not including remediation and administrative costs, and not including past trespass damages to Red Lake.
- Enbridge also hired a so-called survey expert to analyze its position on the size (and location) of Red Lake’s lands at Four-legged Lake. Red Lake soundly refused the surveyor’s analysis.
- In 2011, Enbridge made its first formal settlement offer of $350,000. It claimed that this offer was generous because the value of the land itself was only roughly $10,000.
- The Tribal Council rejected that offer, instead demanding $10 million.
- Enbridge rejected the Tribe’s counteroffer. The Enbridge official who called said something to the effect of stating “We will never pay $10 million.
- In January 2012, the Tribal Council enacted certain provisions from federal regulations regarding trespass as tribal law. Under the Indian Agricultural Lands Trespass Act, Tribes can take over enforcement authority from the BIG regarding agricultural trespass on tribal lands. This meant that Red Lake could issue notices of trespass under federal law and any judgment of the Tribal Court would be entitled to full faith and credit in state and federal courts.
- Red Lake continued to stand strong. At an August 2012 meeting, then Chairman Floyd Jourdain reiterated Red Lake’s demand for $10 million, which Enbridge had already rejected. The Red Lake representative left this meeting after only a few minutes.
- In early 2013, protests began on Lot 8. We told Enbridge that the politicization of the negotiations may have a profound effect on Red Lake’s willingness to resolve the trespass, and if it was willing, at what price.
- Negotiations resumed. At a meeting on July 12, 2013 Enbridge’s lawyer said they could come up to $2 million if Red Lake’s representative could come down to $3 million.
- With new administration at Red Lake, negotiations resumed in November. The Red Lake delegation of officers and others, informed Enbridge that any settlement would have to include substantial and long-term benefits for Red Lake.
- Negotiations stalled in 2015.
- On July 22, Red Lake issued a Notice of Trespass using its inherent tribal sovereign authority and under the authority of the Indian Agricultural Lands Trespass Act. Enbridge had 90 days to respond to the notice.
- In response, Enbridge asked to resume negotiations.
- During two meetings in September, the Tribal Council members participating in the meetings stated that in order to have a profound and lasting effect, any settlement would have to exceed the previous demand by the Tribe substantially. Red Lake put an offer of $20 million plus $1 million for the land exchange on the table.
- Enbridge also sent representatives to tour Red Lake to get some understanding of the needs of the tribe and its members. During one session, Chairman Seki became frustrated with the apparent lack of progress and stated something to the effect of, “Get your pipelines off our land, and turn off the oil while you’re doing it.”
- On November 6, Red Lake and Enbridge convened again. Enbridge offered $5 million, a substantial increase from its earlier position. But again, the Tribal Council stood strong, reiterating the Red Lake offer of $21 million both during the meeting and in a letter that followed. The letter also stated that Enbridge should be willing to pay at least $15 million, the cost it would incur if it had to move the lines from Red Lake lands. It also insisted that high-level Enbridge officials with authority to settle the dispute come to Red Lake to meet with the Council.
- On December 18, 2015, Enbridge officials came to meet with the Council. After several rounds of negotiation, Enbridge agreed to pay $18.5 million, more than three and a half times its previous officer in November, and only $2.5 million less than Red Lake’s demand.
Alternatives / Litigation:
If Red Lake were to litigate the trespass, it would enforce the existing Notice of Trespass in Tribal Court. It would have two options:
- Insist that Enbridge move its lines
- Litigate with the Pipelines Remaining in Place
The Settlement / The Land Exchange:
- While the Red Lake Revised Constitution prohibits the sale of Reservation land, it does not prohibit exchanges of land.
- Red Lake avoids the possibility of having to deal with an environmental disaster and contamination at Four Legged Lake in the future.
According to Red Lake’s attorneys handling this matter, the settlement for $18.5 million is the best agreement that any tribe, anywhere, has received from a pipeline or energy company, and the land exchange and land acquisition provide tremendous benefit to Red Lake. The Tribe will choose the land it gets in exchange for the Four-Legged Lake land.
Concerns and Values
There are several inconsistencies in the December 21 Letter and the December 22 Enbridge Agreement.
The December 21 Letter states: “Enbridge and the Band have agreed to exchange land, and Enbridge will pay 18.5 million for the trespass at the Four Legged Lake property.” The last sentence reads: “The Council will vote to either accept or deny the agreement during the December 22, 2015 Special Council Meeting.” According to sources, the council accepted the agreement on Friday, December 18. Why the presumption that the council would “accept or deny” the agreement on the 22nd when the decision had already been made?
One glaring inconsistency in the Enbridge Agreement can be found under Pipelines/Trespass that states: “Enbridge installed the two new pipelines (Alberta Clipper and Southern Lights) on a slightly different route so that they would not pass across the Band’s Lot 8 Lands.”
If the pipelines were moved off of Lot 8 in 2009, then how does one explain that the encampment was right on top of the pipelines at Lot 8 in 2013? Then there is the matter of the map. The map clearly shows pipelines crossing Lot 8. If the pipelines had been moved “on a slightly different route,” then there wouldn’t be a need for an $18.5 million trespass payment and land exchange.
Despite these glaring inconsistencies, the December 22 Agreement makes it clear that the Band is giving up the trust status of Lot 8: “Red Lake gets to choose the land it gets in exchange for the Four Legged Lake land.” This means that the Band will no longer retain possession of Lot 8 and Enbridge’s pipeline will remain in place. Of course, there is the question of who will own Lot 8 – Enbridge, the township, the state? Regardless, Enbridge will continue to pump its tar sands through the pipeline.
In giving up Lot 8, the council absolves itself of any responsibility of an Enbridge spill, proclaiming outright that “Red Lake avoids the possibility of having to deal with an environmental disaster and contamination at Four Legged Lake in the future.”
Like Pontius Pilate, the tribal council is attempting to wash its hands of any environmental guilt and shift the blame elsewhere.
For Anishinaabe activists, the selling of Lot 8 is the loss of a strategic point in the opposition to pipelines. The Band had the perfect opportunity to demand the dismantlement of the pipelines on Red Lake land or in the very least force Enbridge to reroute their pipeline at the company’s expense. Instead of going down this path the tribal council acquiesced, effectively sanctioning the history of trespass at Four Legged Lake. In so doing, it allowed Enbridge to continue counting daily profits from its poisonous makade-ginebig (black snake).
Beyond the obvious concerns of Native environmentalists, there is a sense of frustration and betrayal among many Red Lakers. Tribal members weren’t allowed to accept or deny the Enbridge deal through a referendum vote; rather, the decision was made behind closed doors by a council that was elected to protect the homeland.
The decision has also led to concerns and criticism of the tribal council. Children have asked if the pipeline will destroy the lake. Some members have questioned how much money was taken under the table. Others have called for a referendum vote or a recall election.
The essence of the anger was best described by one tribal member: “The integrity of our nation was sold.”
That sense of integrity emanates from the Red Lake ogimaag (leaders) who, in 1863, 1889, and 1902, maintained the homeland despite tremendous pressure from the government to open the land up to extractive companies and settlers. But the danger of losing the homeland is always present. Once a door is opened not only does it never close, it slowly opens wider.
The integrity that flows in the blood of Red Lakers for their homeland is found in the words by Asiniiwab (Little Rock), an ogimaa who was present at the 1863 Old Crossing treaty negotiations:
“My friend, it is only twenty boxes of money you want to give me for that road and river; and how long before you cease from using it? Ever since I can remember, and perhaps since the world was made, the river has given me sustenance…you say that the land is not of much value to us. It is of great value to us. By your use of it you have made a great deal of money…the river furnished me a living. I drank its water. The beasts that engendered on its shore gave me the clothing I wore. You say it was of no value to us. It is there where we used to get everything we had.”
©2015, All Rights Reserved, Robert DesJarlait