Biden administration agrees with Native American tribe that Canadian pipeline is trespassing

The Biden administration straddled the line on a controversial Canadian oil pipeline in a court filing Wednesday, saying a lower court’s order to drain portions running through tribal land may violate a 1977 treaty but agreeing with a Native American tribe that the operator is trespassing on tribal land.

In an amicus brief in the U.S. Court of Appeals for the 7th Circuit, the Justice Department (DOJ) agreed with the Bad River Band of the Lake Superior Tribe of Chippewa Indians that Enbridge “lacks any legal right to remain” on Chippewa land in Wisconsin. A lower court, the Western District of Wisconsin, “correctly rejected Enbridge’s arguments that the Administrative Procedure Act or the 1992 agreement authorizes it to remain on these lands,” DOJ lawyers wrote.

However, the administration also wrote that the district court did not properly consider U.S. obligations under a 1977 treaty with Canada in ordering the closure of the pipeline, and that the appeals court should reconsider the decision by Judge William Conley to halt it by 2026. The Justice Department did not take a position on whether the order did in fact violate the treaty.

The Bad River Band has been engaged in the legal battle with Enbridge since 2019, specifically seeking to shut down a portion of the pipeline known as Line 5 that runs through Wisconsin and Michigan.

“We are grateful the US urged the court not to let Enbridge profit from its unlawful trespass. But we are disappointed that the US has not unequivocally called for an immediate end to Enbridge’s ongoing trespass, as justice and the law demand,” Bad River Band Chair Robert Blanchard said in a statement. “Enbridge should be required to promptly leave our Reservation, just like other companies that have trespassed on tribal land. We are hopeful that the appeals court will put an end to Enbridge’s shameful decade of trespass and not condone its exploitation of our land and sovereign rights.”

"Shutting down Line 5 before relocating the pipeline outside of the Reservation would violate the 1977 Transit Pipeline Treaty between the U.S. and Canada. The Government of Canada has made its position clear," an Enbridge spokesperson told The Hill. "Such a shutdown is not in the public interest as it would negatively impact businesses, communities and millions of individuals who depend on Line 5 for energy in both the U.S. and Canada."

Updated at 5:09 p.m.