Late last month, Enbridge Energy announced that it had completed construction of its Line 3 oil pipeline replacement across Minnesota, despite strenuous opposition from Native American tribes and environmental activists.
But a permit issued to Enbridge for construction of the pipeline is being challenged in the White Earth Nation tribal court, in an unconventional case that asserts the legal rights of Manoomin, or wild rice, to “exist, flourish, regenerate and evolve.” The plant, which “grows on water,” is the lead plaintiff in the case, joined by the White Earth Band of Ojibwe and others.
The case is the first rights of nature enforcement action filed in a tribal court and is notable because the plaintiffs claim that acts taken by the state of Minnesota on non-reservation land have impinged on the rights of Manoomin, which are protected under a 2018 White Earth Nation tribal law.
Rights of nature laws have taken root in more than 30 Indigenous and non-Indigenous communities across the country in, among other states, Ohio, Colorado, Pennsylvania and Minnesota. Globally, rights of nature legislation, judicial rulings and constitutional amendments have emerged in Canada, Mexico, Colombia, Bangladesh, Bolivia, India, New Zealand, Ecuador and Uganda, among other countries.
Proponents of the laws argue that if non-human entities like corporations, trusts and governments have legal rights, elements of nature ought to have unique rights, too, with selected humans acting as their legal guardians.
The proponents contend that current environmental protection law treats nature as human property that can be damaged and destroyed, which has resulted in an ecological crisis facing the planet. By giving nature legal rights, they say, humans can begin to change direction toward a more sustainable future.
Doing so will require humans to change their relationship with the environment, the proponents say, moving away from exploiting it toward an interdependent relationship, in which humans come to see themselves as an intrinsic part of nature.
Those ideas are rooted in Indigenous world views and the incorporation of rights of nature laws into western legal systems is seen by some advocates as a shift towards a more pluralistic legal system.
If the rights of Manoomin are enforced by the tribal court, it would be the first time a rights of nature law is upheld by a U.S-based court and would be notable for applying to off-reservation acts.
The case, filed in August, is also drawing attention because of the way the rights of nature law is intertwined with the interpretation and application of tribes’ treaty rights, an environmental justice issue at the heart of U.S. relations with Native American and Alaskan tribes.
Frank Bibeau, legal counsel for the White Earth Band of Ojibwe and a member of the tribe, said the case underscores how poorly the federal and state governments have carried out promises made to tribes over two centuries ago. Those promises stem from a series of about 500 treaties negotiated between the U.S. government and tribes during the 18th and 19th centuries. Under the terms of most of those treaties, tribes that were defending their land agreed to end hostilities with the United States and to cede their land to the government.
In exchange for those agreements, tribes received sets of promises guaranteeing they would retain certain rights—like the right to fish, hunt, gather and travel—on their traditional lands, which encompass off-reservation land now held by state governments and private parties. For the White Earth Band of Ojibwe, a component band of the Minnesota Chippewa, one of those promises guaranteed the tribe’s right to gather Manoomin on their traditional lands.
At the heart of the Manoomin lawsuit is the Minnesota Department of Natural Resources issuance of an amended construction permit that allowed Enbridge to pump nearly 5 billion gallons of groundwater amid drought conditions to maintain the company’s construction trenches, about 10 times more water than the company had originally asked for. The so-called dewatering process can harm aquatic ecosystems, including those supporting Manoomin, as water is removed and eventually pumped back.
When Enbridge announced the completion of the construction of Line 3, it may have rendered the Manoomin litigation moot, because the lawsuit hinges on the issuance of the dewatering permit during construction.
But Bibeau said that Line 3 construction caused numerous ecological injuries, including a breached aquifer and pollution related to fracking, that the tribe is investigating should further causes of action be necessary to file a new complaint.
Historically, tribes have fought to enforce their treaty rights, but in practice, the federal and state governments have often failed to meaningfully consult with tribes over decisions, like the issuance of construction and pollution permits, that tribes say impinge on their rights.
The White Earth Band of Ojibwe and other tribes have argued that the federal and state governments have a duty to protect the health of ecosystems upon which their rights depend. For instance, if a river is so polluted that fish can no longer live there, a tribe’s right to fish is rendered meaningless. Or if there is no water for Manoomin to grow in, the right to gather it is empty.
The case is unfolding at a time when tribes across the country see some of their long-held treaty rights increasingly threatened by environmental degradation from pollution, biodiversity loss, development and climate change. Over 30 Native Alaskan tribes already face displacement from climate change.
And while the Biden administration and Democratic politicians like Minnesota’s Governor Tim Waltz have said they would prioritize environmental justice, the White Earth Band of Ojibwe’s prior efforts to pause construction of Line 3 have been unsuccessful, with the tribe losing every legal challenge it has mounted.
Bibeau said he thinks the Manoomin case will be different. The tribe has linked the rights of Manoomin with the tribe’s 19th century treaty rights to gather the plant on and off the reservation. The combination of claims, according to Bibeau, makes a forceful case showing just how important Manoomin, and the ecosystem upon which it depends, is to the tribe. And by bringing the case in tribal court, the tribal plaintiffs are asserting the tribe’s own sovereign authority, after attempts to assert their rights in American courts.
Bibaeu is hoping the case will create legal precedent that will give other tribes a new tool to protect their traditional lands from environmental degradation, as well as to get court recognition of the rights of nature—an idea that may seem unorthodox to non-Indigenous people, but that has always been part of his tribe’s worldview.
“Non-Indian attorneys are afraid of what we’re doing because they don’t understand it and it hasn’t been done before,” he said. “We can’t let our water degrade anymore and we don’t trust the DNR to protect it. It’s up to us to make sure our water and our land are protected from here on out.”
Tribal Treaty Rights
The Manoomin litigation could be a precedent-setting case with regard to the way courts interpret and apply tribal treaty rights, potentially settling the question of whether the federal and state governments have a duty to safeguard off-reservation ecosystems upon which tribal rights—like the rights to fish, hunt and gather plants—depend.
If governments took the view that they had a duty to protect ecosystems for the benefit of Native American tribes, the environment in the United States and around the world would look a lot different, advocates say. But typically, the federal and state governments have taken the position that they have no obligation to protect underlying habitats like waterways and forests.
Stephen Pevar, a senior attorney at the American Civil Liberties Union who specializes in Indian law, said that stance would result in an abrogation of solemn promises, and that governments have a clear duty to protect and enforce off-reservation tribal rights.
“The U.S. was asking tribes to move to smaller areas where their food wasn’t always available the entire year. These tribes wouldn’t have agreed to that because they would have starved to death,” he said. “So off-reservation rights are a very important aspect of many treaties and deserve to be respected.”
Courts have at times sided with tribes on the issue, including in one landmark 2016 decision by the 9th Circuit U.S. Court of Appeals. In U.S. v. Washington, tribes argued that the state of Washington had an obligation to restore waterways that were critical to the migration of salmon, an animal sacred to some tribes and important to their food supply and cultural practices. Over time, development and the construction—then collapse or blockage—of culverts had impeded fish from reaching spawning grounds, leaving hundreds of fish dead at each blocked waterway.
The state argued that though the tribes held a treaty right to fish, that didn’t obligate the state to protect the fishes’ habitat. The 9th circuit ruled in favor of the tribe, ordering the state to clear collapsed and blocked culverts, an endeavor costing millions of dollars. The state appealed to the U.S. Supreme Court, which split 4 to 4 on the decision due to one justice’s recusal. The split decision had the effect of affirming the 9th circuit ruling. But split Supreme Court decisions don’t carry the same weight as majority rulings, leaving tribes like the White Earth Band of Ojibwe without binding legal precedent to rely on.
A Supreme Court decision certifying the decision in U.S. v. Washington would be the first step towards righting what Pevar and other lawyers say has been a longstanding historical wrong.
“As the ninth circuit recognized, a right to fish is meaningless if there are no fish to catch due to the destruction of fish habitats,” Pevar said. “When the treaties were signed, these tribes were keenly interested in protecting these very resources and the treaties do that. It should not be as difficult as it is for tribes to prevail in cases where actions taken by the government or private parties threaten those resources. We have a perpetual duty to fulfill our end of the bargain.”
The Rights of Manoomin
The idea to give Manoomin legal rights came up as the White Earth Band of Ojibwe and Bibeau were looking for ways to fight the construction of Line 3, which they see as an existential threat to their culture and way of life.
The 2018 law was also a way for the tribe to put into law what has always been a part of their belief system, according to Bibeau.
“If you’re trying to preserve your culture, you have to be able to preserve all the attributes of that culture—the things you normally engage in, the spiritual ceremonies, the first solid food a baby eats and the last food an elder eats before they pass on,” he said. “You have to get that stuff written down into law.”
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Thomas Linzey, a lawyer who is advising the White Earth Band of Ojibwe on the rights of nature, said since the Manoomin litigation, other tribes have reached out and expressed an interest in the legal tactic. At least six Native American tribes already have enacted rights of laws.
“Any tribe with treaty rights can do the same thing that White Earth did. It’s not just pipeline issues. A tribe could pass a law recognizing the rights of salmon and use it to stop hog farms from harming salmon habitats,” said Linzey, the senior legal counsel for the Center for Democratic and Environmental Rights in Spokane, Washington.
The Manoomin lawsuit is still in its beginning stages, with the tribal court tackling preliminary procedural issues over whether it has jurisdiction over the non-tribal member defendants: the Minnesota Department of Natural Resources, its commissioner, and DNR employees. And even those issues are complex and potentially precedent setting because the act in question—the issuance of the amended dewatering permit—occurred off the reservation.
In August, David A. DeGroat, chief judge of the White Earth Band of Ojibwe Tribal Court, ruled that Minnesota’s argument that it is immune from suit as a sovereign entity “must give way” to the tribe’s “vital” interests. The ruling is based on the 1981 Supreme Court case Montana v. USA, which held that in some circumstances tribes could exercise authority over non-members whose conduct on the reservation “threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe.” The ruling is significant because issuance of the dewatering permit happened off the reservation.
Later that month, the court issued a clarifying order dismissing the Department of Natural Resources as a defendant. Department officials remain defendants in the case.
The state has appealed the tribal court’s jurisdictional ruling and separately filed suit in federal district court against the tribe and Judge DeGroat in an attempt to strip the tribal court of jurisdiction. A federal district judge dismissed the case, citing the tribes’ own sovereign immunity. The state has appealed that ruling as well. A hearing in the 8th circuit court of appeals is scheduled for January. Separately, the tribal appellate court, which typically moves slowly, has yet to schedule a hearing in Minnesota’s appeal from the tribal court’s order dismissing the state’s motion to dismiss the lawsuit.