The Line 5 pipeline, which carries more than 500,000 barrels of petroleum products daily across the Great Lakes region from Wisconsin into Canada, is again in the headlines, after the Trump administration issued an executive order that declared a national energy emergency.
Enbridge, the Canadian company that operates the pipeline, has proposed boring a tunnel under the straits to protect the pipeline and continue its operation. In the wake of the national energy emergency declaration, the Trump administration instructed the US Army Corps of Engineers to fast-track its environmental impact evaluation of this proposal. The resulting draft Environmental Impact Statement, which was released in late May, seems to clear the way for Enbridge to move forward following a 30-day public comment period.
The pipeline, which runs along the bottom of the Straits of Mackinac, has leaked more than 30 times in its 70-year history and released more than 1 million gallons of oil. A 2016 University of Michigan study showed that more than 700 miles of Great Lakes shoreline was at risk of being polluted should the pipeline fail in the straits.
Indigenous tribes in the Great Lakes region have vowed to continue their fight against the project, which was built without their consent in the 1950s. In 2023, a federal judge ruled that Enbridge was trespassing on the tribal lands that Line 5 passed through in Wisconsin. Tribes in Michigan have likewise taken the pipeline to court, but the energy emergency order muddies what was already a fraught collision of state, federal, and American Indian law.
Matthew L.M. Fletcher, ’97, the Harry Burns Hutchins Collegiate Professor of Law and a citizen of the Grand Traverse Band, recently talked with Michigan News about the issue. He currently sits as the chief justice of the Pokagon Band of Potawatomi Indians, the Poarch Band of Creek Indians, and the Grand Traverse Band of Ottawa and Chippewa Indians.
1. Where do things stand now with regard to Line 5 and Indigenous tribes of the Great Lakes region?
The two Line 5 disputes that I’m aware of—there may be more, but the ones that are highly litigated—are in the Straits of Mackinac and in northern Wisconsin on the Bad River Reservation. It’s the same pipeline. It just happens to run through both of those places.
The Straits of Mackinac are a confluence of massive water systems, and there are five federally recognized tribes that are signatories to an 1836 treaty. Those tribes are Sault Tribe, Bay Mills, Little Traverse, Grand Traverse, and Band of Little River. They have a property interest in that water legally, which is called a use of property right. That means they have an off-reservation right to fish within that water system without regulations from the state, more or less. It’s all negotiated, but the tribes have property interests in clean water and habitat for their fishing activities in the straits and really the whole area around them.
These things are heavily contested in litigation. We don’t have a whole lot of Supreme Court guidance on what the scope of that property right is, but it definitely exists. That gets the tribes invested in the area to some standing to make the real arguments, which are rooted in state and federal law.
Over the years, the tribes and environmental groups have made the most hay in other environmental regulation statutes or procedural statutes. With the National Environmental Policy Act, or NEPA as it usually is called, the federal government has to meet all sorts of legal requirements when it’s going to do something that impacts the environment. Sometimes those procedural requirements go on for years and years. That can actually kill a project because the bureaucratic obligation to observe, report, and even predict what the environmental impacts are is pretty onerous and expensive.
Then state governments can also have their own versions of NEPA.
The tribes in the Straits of Mackinac are saying, “We have treaty rights/property rights interest in the waters, so that gets us in as a claimant.” Then they try to make all the procedural arguments.
2. What about in Wisconsin?
Wisconsin is really important, too. That’s worse than what happened with the tribes here in Michigan, because this is the Bad River’s actual land. So that pipeline went in at a time when the tribe had no rights even to have a say on the insertion of a pipeline on the actual reservation. Now the easement has expired, and this pipeline isn’t supposed to be there. [Enbridge is] a holdover tenant under the law, so now they owe trespass damages, and the federal court will figure out what the damages are.
But, really, the tribe wants that pipeline out, and the federal judge is not ordering Enbridge to remove the pipeline, which is baffling to me. The judge is basically saying oil is more important than Indians—more or less in those words. The case is on appeal to the Seventh Circuit, but the tribe has all of the law and the facts on its side and still can’t win the damn case. It’s really quite shocking.
3. The energy emergency order applies only to the dispute in the straits, where the US Army Corps of Engineers has jurisdiction. How does that affect the legal position for the Michigan tribes?
What’s going on here is that you have a completely made up, war-powers-related energy emergency that’s basically fake. But—I teach federal court jurisdiction as my sort of sideline to Indian law—the judiciary doesn’t know what war powers are. When the president says, “We’re being invaded” or “We have some sort of national security emergency,” the judiciary usually takes the president at their word. This exemplifies the separation of powers-related deference of the judiciary to the executive’s war powers, which is rooted in the structure of the Constitution.
If the president makes some audacious claim about an invasion, say due to immigration or an energy emergency that has no factual basis to it, the judiciary typically just accepts the claim. They’ve tied their own hands behind their back on that point, so there’s really little left for the tribes to argue before the judiciary. You can continue to play out the appeals, but it’s extremely unlikely you’re going to get much out of it.
The other thing that goes with the emergency is that, typically when you have these procedural statutes and you’re litigating them, there’s a stay placed on the continued development of the project in question. The stay keeps the status quo until all the NEPA stuff and the other procedural statute stuff is litigated. But when you have this emergency, they don’t have to issue a stay. If you declare an emergency, they’re going to build the thing. You may still continue to litigate these procedural things, but then they can become moot. The judiciary loses jurisdiction over them because the projects are already going or even could be completed by the time they litigate the procedural issues. It’s really quite Orwellian, to tell you the truth.
4. How has the history of American Indian law shaped where we’re at?
This pipeline went in during an era that we usually call the termination era of federal Indian law. That arose as a consequence of the end of World War II and the rise of the Red Scare. Tribes were considered to be sort of socialist/communist entities that needed to be eradicated, so during the 1950s, Congress was identifying tribes one by one and basically terminating them.
What that means is ending the tribal federal relationship, liquidating tribal assets, and the federal government taking whatever it wanted off the top. It wasn’t every tribe; about half of the tribes in the US were terminated. And the ones that were actually doing pretty well economically, or had done things like sustainable environmental management, were targeted on purpose. It was an incredibly corrupt period of time in federal Indian law. Basically, the same people who ran the Japanese internment camps ran the Bureau of Indian Affairs in the ’50s. They were not our friends.
Secondly—and it’s not a real principle because Congress never actually said this—the United States had always treated Indian tribes, really until the ’70s and ’80s, as wards and the federal government as their guardian. The analog is Britney Spears and her dad. Britney Spears became the ward of her dad. He controlled everything about her assets and resources. He made all her business decisions and personal decisions. A ward has no legal status. They literally cannot sue their guardian.
In Michigan, it wasn’t until the late 1980s and into the ’90s when the number of tribes in Michigan that were federally acknowledged increased from four to 12. And those tribes started having a stronger relationship with the federal government, which had shifted to what we now call self-determination, the next era after termination.
Now that we’re in self-determination, tribes have more control over assets and resources. The government acts as a trustee, not a guardian. A trust beneficiary has legal rights to challenge the trustee’s decisions. With the rise of gaming and other economic activities, tribes have some economic clout, which gives them political clout. Now, we can hire our own lawyers without having to ask our so-called guardian for permission, which is what we had to do until the year 2000, at least on paper. Now we have the opportunity to actually object to these things.
So what you’re seeing with that chronological legal framework around the country is, as soon as tribes get an opportunity to object to something like this, they do it. As a political matter, though, that often puts them in a really weak position. Because it just looks like, “What? You were fine with this in the ’50s, and now you’re objecting way too late.” That’s not fair, but that’s just the way it is.
5. What else would you want people to know?
The consequences of a big oil spill in the Straits of Mackinac would be absolutely catastrophic. It’s an existential threat to tribes. So this is about the survival of whole communities, whole nations. The tribes are here consistently in favor of the environment, and that puts them up against some really powerful interests.
Enbridge is a Canadian company that’s using America as its dirty transportation hub, and we’re not getting anything out of it. If we’re interested in American energy independence, this does almost nothing to help us.
When it comes to environmental regulation, control, and especially observation and monitoring, tribes are by far the most consistently interested governmental entities—really around the country, but especially in the Midwest. The state and the feds kind of wax and wane depending on who happens to have won the most recent election, but the tribes are consistently stepping in those shoes and doing the work.
And they’re here for everybody, not just for tribes. Everybody uses the Straits of Mackinac, everybody uses the inland waters, everybody uses the air. Tribes are the only consistent governmental entities in the state of Michigan, in the Great Lakes region, that are on the side of the people. They’re doing this for everybody.
The original version of this story, written by Matthew Davenport, was published by Michigan News on May 28, 2025.
