Why Nature Needs Legal Rights: The Manoomin Case

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Jami Gaither has lived at her permaculture homestead for six years, where she uses rainwater catchments and a rocket mass heater to maximize the use of natural systems. Photo Deborah Schildt

Our relationship with climate change is comparable to driving in a station wagon with rear-facing seats, according to Jami Gaither, a water protector against the Line 3 pipeline, who lives in Alida in northern Minnesota.

“We don’t see what is in front of us, or what we are going into,” explains Gaither. “We can just see the past. We have whittled away all the time we had to actually live reciprocally with the earth in a way that would be helpful for not just us, but all the other beings that we share this world with.”

Gaither became aware of the concept of “rights of nature” after discovering that Enbridge’s Line 3 pipeline would be routed directly through her neighborhood. She is learning the Ojibwe language to help her understand the kinship that Indigenous communities have with nature.

“Eurocentric languages focus on nouns, and knowing the names of things,” Gaither says. “[Ojibwe] is verb-based, which means that it is based on intricate relationships between things. Nouns are separate things: controllable, movable, ownable.”

Although Line 3 is in, “we are still trying to understand the devastation” for reparations from pipeline management. “There is no accounting for the dead beaver, the dead muskrat, the poison in the water,” she says.

The relationship between nature and humans is at the epicenter of the rights of nature movement, which aims to give legal rights to different parts of the ecosystem. It also shifts how people view nature — seeing kinship between humans and their natural environment.

Indigenous communities around the world are leading efforts to legalize the rights of nature in order to protect nature against human-made degradation. Ecuador’s constitution in 2008 gave nature the right to exist and flourish, and people the authority to petition on behalf of nature.

In New Zealand, the Whanganui River — a waterway that had become extremely polluted — was granted legal personhood in 2017 after years of petitioning by the local Maōri community.

Who Rules on Nature?

Currently, no U.S. court has recognized a rights of nature law. However, the cases are out there, awaiting litigation and verdicts. A current case in Seattle focuses on the rights of tsuladxw (salmon) to exist and regenerate, which is an essential part of the diet and spiritual practice of the Sauk-Suiattle tribe.

In Minnesota, a case for the rights of manoomin (wild rice) has been circulating in the courts since 2018. The White Earth Band of Ojibwe recognizes the species as holding legal rights to grow, exist, regenerate, and be preserved. The White Earth Nation sued the Minnesota Department of Natural Resources (DNR) on the grounds that the pipeline route broke decades-old treaty law by routing through treaty land and disrupted manoomin’s ability to grow because of harm done to the water.

In 2021, the White Earth Band brought the case to tribal court to enforce the rights of wild rice — both on and off of traditional treaty lands. The DNR contested that White Earth lacked jurisdiction to sue them for off- reservation rights. In March, the White Earth Court of Appeals dismissed the DNR case due to lack of jurisdiction. In response, White Earth attorney Frank Bibeau filed a brief in April requesting the court to reverse its order.

Bibeau and Thomas Linzey, senior legal counsel for the Center of Democratic and Environmental Rights (CDER), have worked on the case. “For attorneys, they are not familiar with a third jurisdiction — Indian Country — using a tribal court that are not state and federal law,” Bibeau explains. “[State and federal represenatives respond,] what do you mean they can tell us how to use natural resources? Tribal law catches them off guard.”

Linzey describes what is happening now as “a game of chicken” between the Eighth Circuit Court of Appeals and the Tribal Court of Appeals regarding who will act first. “It is really throwing a wrench into the system,” Linzey says. “Not just the rights of wild rice or rights of nature, but jurisdictionally, who has control over enforcement?”

After it is decided who has jurisdiction, the White Earth Band can move forward to reach a definitive legal decision that the Line 3 permit should not have been issued and should be overturned.

“It opens the door to assertion of tribal sovereign authority outside the reservation boundaries,” Linzey says.

“One of the problems embedded in this issue is that tribal governments do not trust Western governments that have screwed them over for the last 150 years. Why trust a framework of rights that is not the tribal framework, but a Western construct of law?”

Even if the White Earth Court of Appeals maintains that the Band does not have off- reservation jurisdiction over the case, Linzey says, there can still be a good outcome. The rights of nature would protect ecosystems on tribal reservation lands.

What Is Next?

Dawn Goodwin is co-founder of the Resilient Indigenous Sister Engaging (RISE) coalition. She is a water and manoomin protector from Lower Rice Lake on the White Earth Reservation and sees the destruction of Line 3 firsthand.

“You don’t even need a drone anymore to see [the damage] by the Mississippi River, especially by the Mississippi Valley, which is all spring-fed,” she says. “The MPCA [Minnesota Pollution Control Agency] doesn’t consider the wetlands next to the river. It is cloudy. It is rusty. That is all fracking fluids coming up.”

“We will make progress. But it is up to the people to be able to unite together in that endeavor,” Goodwin adds. “It may be slow. Our elected officials and our judges are showing us their cards, so we know it is going to be an uphill battle.”

Further Reading

“Rights of Nature Lawsuits Hit a Sweet Spot,” August 2021, indiancountrytoday.com