Tom Goldtooth awoke on Feb. 21 expecting a pretty regular day ahead. And by all accounts, his day was normal. He was on the road by 11 a.m. to catch a flight. But unbeknownst to him, around the same time as he left, U.S. Customs and Border Protection was watching his home in Beltrami County, Minnesota, from 20,000 feet in the air. A CBP Reaper drone operated silently for more than an hour, making five-mile-wide circles around the home of Goldtooth, who is the executive director of the Indigenous Environmental Network.
When asked about this activity, CBP said in an email that “it does not patrol pipeline routes.” On the date a drone was above Goldtooth’s home, the agency claims it was either conducting a missing person search or conducting “border security,” which CBP defined as “a flight that has a direct nexus to the border,” whatever that means. The town Goldtooth lives in is roughly 90 miles from the border.
“That’s where my house is,” 66-year-old Goldtooth said, noting that few other people live in the remote area.
But our analysis of drone flights in Minnesota this year, sourced from Tampa-based flight tracking company RadarBox, suggests that CBP is surveilling multiple Indigenous advocates in the region who have fought against pipelines, including the proposed expansion of Enbridge’s Line 3.
No one knows for sure what CBP is up to in these parts, and the agency offers very little information to the public. While the U.S. government’s violent suppression of protesters in places like Portland, Oregon, and surveilance of individuals’ social media feeds have drawn the most scrutiny, these drones are yet another powerful tool the government can use to chill free speech. Experts still don’t fully know what technology these drones are outfitted with, which means we can’t know for sure what data they’re gathering beyond video.
“IEN works under the assumption that we’re being watched either by government or industry or both,” Goldtooth said. “In principle, this isn’t surprising. However, it’s disturbing that they are using these multimillion-dollar military drones to circle my home. I’m a peaceful person. I follow our spiritual ways, and there’s no reason for [CBP] to be looking in my windows.”
In doing so, it could also be infringing on the sovereign rights of Indigenous tribal nations and their members. Previous presidents have infringed on civil liberties and promoted oil and gas development, but President Donald Trump has put those gears into overdrive. In recent years, states have also passed more draconian anti-protest laws designed to protect fossil fuel interests. The potential aerial surveillance could signal even further escalation at a time when the fossil fuel industry is struggling in the face of calls for climate action and the pandemic-induced drop in demand.
Over the summer, controversial projects such as the Dakota Access and Keystone XL pipelines have suffered major defeats in court. Enbridge’s Line 3—which would run from Canada’s oil sands to a terminal in Wisconsin—is likely one of the next high-profile targets. The project involves abandoning old pipe and leaving it in the ground while installing an entirely new, larger pipeline that can carry more oil as part of a so-called replacement. The construction is complete in Canada and Wisconsin, but developer Enbridge still needs 27 permits and approvals, mostly from tribes and state agencies in Minnesota, where opposition is heavy. Goldtooth and other Native and non-Native groups have been fighting Enbridge tar sands pipeline developments since 2007 with sister organizations like Honor the Earth taking lead on Line 3. Entire tribal nations, including the Red Lake Band of Chippewa in northern Minnesota, have voted to not renew easements for the project and even to have the pipes removed.
Advocates are worried the old pipeline could contaminate the soil and water as it ages, and their worries are based on more than just fear. The project’s environmental impact statement from the Minnesota Department of Commerce says as much, noting that “some potentially significant effects are associated with abandoning the existing Line 3,” including “soil and water contamination.” Activists also want to see an end to new fossil fuel infrastructure. The land can’t handle an oil spill, and the climate can’t take any more carbon emissions.
These water protectors should be able to voice their concerns freely without fear of retaliation from a private company or, worse, the government. More importantly, tribal nations should be able to assert their sovereign right to reject infrastructure they don’t want running through their lands. You would think tribal sovereignty would protect them from federal interference, but that’s just not the case. The federal government doesn’t treat tribal nations like independent entities, and CBP is no exception.
“The Border Patrol has been behaving badly since its creation in 1924,” Deborah Kang, an associate history professor at the University of Texas, Dallas, said.
CBP’s first agents in the 1920s were often white supremacists coming from other agencies with a history of brutality. More recently, agency employees have faced corruption accusations. The drone program is only the latest instance of the bad behavior Kang mentioned. CBP launched its first drone test flight over the southern border in 2004. By 2005, the first Predator drone was soaring above the U.S.-Mexico border. Not even a year later, that same drone crashed—a sign of the technical and safety issues the program was suffering.
Since then, the drone program has faced internal and external scrutiny. The Department of Homeland Security has flagged that the program costs more than it’s worth, and the hundreds of millions of dollars the program requires a year become especially questionable to taxpayers when looking at privacy concerns. While the program launched under the banner of immigration enforcement, it’s evolved to do a lot more in recent years. That’s become especially clear in light of the Black Lives Matter movement that’s exploded since the killing of George Floyd in Minneapolis. The agency flew one of its drones over the citywide protests back in May and has since deployed officers to Portland, Oregon, in response to protests there.
“I have several concerns, and my foremost concern is the lack of information,” Kang said. “We actually know very little about these drone flights. We often don’t know who ordered the drone to surveil for non-immigration-related situations. We don’t know what kind of technology gets loaded onto each drone flight. We don’t know what kinds of data exactly those drones are picking up. We aren’t certain about where that data goes.”
The agency’s purview includes the U.S.-Canadian border, which the new Line 3 pipeline would cross. Nearly two out of every three people in America live within the 100-mile zone the CBP largely operates in, according to the American Civil Liberties Union. And if CBP partners with another law enforcement department, it’s no longer subject to even this 100-mile radius.
“It is often misunderstood that our operations are limited to a certain distance from the border,” CBP said in an email. “AMO operates aircraft and vessels under 6 USC § 211(f)(3)(C), which authorizes the agency to conduct aviation and maritime operations in support of federal, state, local, tribal, and international law enforcement agencies without any geographic limitation for such operations.”
While it remains unclear what exactly the drone was doing above Goldtooth’s home in February, that flight is not the only evidence we found that CBP is monitoring activity at the pipeline. On May 19 and 20, a drone registered as CBP104 flew from Grand Forks, Minnesota, to patrol a specific area over the pipeline that activists we spoke to claimed houses Enbridge’s construction equipment. The drone took the same flight path on both days.
“That area is the easement for Line 3. That’s the route they want to use,” Dallas Goldtooth, Tom’s son and an anti-pipeline organizer with IEN, said. “The easement is the swath of land they have the right to build within. It’s at the very least 100 yards across that they can do construction in that space.”
Construction hasn’t yet begun here, according to Dallas, but pre-construction activity has. Enbridge has begun to move in pipes and other equipment in preparation for construction.
Earlier in the year, a drone registered as CBP216 flew directly to a private residence that activists say is owned by an advocacy organization involved in the pipeline’s opposition. The drone lingered briefly above the home before turning around and flying back to Grand Forks Air Force base, cutting through tribal lands at the Red Lake Reservation. In total, Earther observed five flights that occurred between February and June 2020 wherein a CBP drone appeared to surveil an area with an obvious connection to the pipeline or to anti-pipeline activity.
Joe Plumer, legal counsel with Red Lake Nation, said the nation has no agreement with CBP to allow this drone activity over sovereign tribal lands. He is personally concerned whether this signals a growing criminalization of Indigenous activists. Plumer said a resolution “to condemn this action might be necessary,” as is a meeting with CBP and other state agencies.
“Steps should be taken to ensure that surveillance of the Red Lake Nation and its citizens is not conducted without the knowledge of the Red Lake tribal government,” Plumer said.
Leech Lake Band of Ojibwe and White Earth Nation did not return Earther’s requests for comment.
CBP has a history of using drones to surveil protesters, and the drones over Tom’s home are reminiscent of what happened in 2016 at Standing Rock. There, Indigenous leaders and allies came together to try to stop the Dakota Access pipeline from cutting through lands that are sacred to the Standing Rock Sioux Tribe. The federal and local governments responded with an overtly militarized response, including the use of rubber bullets and tear gas. An investigation from the Intercept also uncovered that CBP provided a video feed to the county and state law enforcement through the agency’s drone program.
Many pipeline opponents across the country—and those now protesting in Minnesota—spent time at Standing Rock in 2016. Tara Houska, a tribal attorney and founder of Giniw Collective, which is resisting Line 3, spent six months at Standing Rock to stand in solidarity with fellow Indigenous people there. Now, she’s on the frontlines to stop Line 3, where she’s working to protect her homelands as a member of the Couchiching First Nation in Ontario, Canada. Her people consider the wild rice they tend in the region sacred. Line 3 threatens their sacred grains, should it spill or leak. That’s, in part, why Houska started the Giniw Collective, a resistance camp, in the first place. The goal isn’t just to stop the pipeline, but also to teach and learn from one another about food sovereignty and sustainable food practices.
“It’s a place meant to be a safe and welcoming space for anyone who wishes to learn more about engaging in the Line 3 resistance, specifically in land defense and cultural revitalization,” Houska said.
Line 3 hasn’t received as much international attention as Standing Rock did, yet local law enforcement has appeared to track opposition to the project. According to Houska, she’s suspected organizers have been dealing with some form of surveillance since 2018, when they first began their efforts to stop the project. She has spotted drones flying over their resistance camp in Minnesota, where anywhere from 10 to 90 activists may be gathering at a time. She remembers one instance in particular last summer where law enforcement officers pulled over a camp member and pulled out a list the officers claimed included the names of Line 3 protesters.
“[The camp member was] pretty shocked by that, the fact that they had a list of names and were specifically targeting and pulling us over because of that,” Houska said.
It’s unclear whether CBP was behind the drones Houska has seen, but the CPB flights Earther has tracked may be on behalf of a local law enforcement agency that requested the help, according to Victor Manjarrez, associate director of the Center for Law and Human Behavior at the University of Texas at El Paso and a retired chief with CBP. Earther reached out to seven local sheriff’s departments, including Hubbard and Beltrami Counties, which have been actively preparing for Standing Rock-level protests. None claims to know anything about the drones.
The Intercept documented local law enforcement and emergency managers’ efforts to prepare for Line 3 opposition through presentations and meetings in 2017 and 2018. Law enforcement has denied requesting drone surveillance, leaving us with the question of who made the call for CBP to take these flights: the federal government or local agencies? What is clear is that this activity seems to target activists specifically.
Beyond the privacy and ethical concerns around the surveillance, many legal advocates, including with the ACLU, worry that CBP may be infringing on the rights of the sovereign tribal nations whose lands it’s crossing over. After all, there’s so little we know about these devices and what technologies they’re capable of. As for how legal it is, Manjarrez said CBP is free to do as it pleases. As someone who used to work in the agency, he believes it’s within CBP’s legal rights to do this. He said CBP has the legal authority to fly these drones anywhere on the continental U.S., per U.S. Code Title 6 and annual appropriations language. When asked whether national security is more important than the human right to privacy, Manjarrez paused.
“That is the fine line that you try to do. It’s a struggle. It really is,” he said.
He added that it’s possible to see both sides of the issue, given that privacy and national security are both urgent issues. Regardless of this debate, however, CBP is able to keep the details of its flights and activities secret simply by invoking national security concerns.
Efforts to defend land and water from devastating infrastructure projects come with a cost. In northern Minnesota, it appears to be targeted surveillance. Across the U.S., it’s increasingly becoming arrests and prison sentences. Elsewhere, it’s death: 2019 marked a record number of environmentalists killed around the globe.
This is the risk advocates are willing to take in an effort to stop these companies from furthering the mass extinction unfolding in the face of the climate crisis. It is, essentially, a fight for life. The question now is which side the government will be on.
“It might be unsettling to know that private security is working with state and federal authorities to attempt to suppress the rights of citizens,” Houska said. “However, the cause that we are advocating for is far greater than any personal risk. We’re talking about the rights of future generations to live and the continuation of human life and of many other lives on this planet. We’re talking about having an inhabitable environment.”
Update, 9/18/20, 5:38 p.m.: This post has been updated with language clarifying the groups opposing Line 3.