Minnesota’s natural wild rice holds deep cultural, spiritual, and economic significance to Native American tribes in the state.
Now, in part of the state at least, the native grass holds even more: its own legal rights.
In preparation for a fight against a pipeline project, the state’s largest Indian tribe, the White Earth Band of Ojibwe, passed a tribal law giving wild rice its own enforceable legal rights, just like those enjoyed by American citizens. They include the right to “thrive, regenerate and evolve”. A similar law was passed by the 1855 Treaty Authority, a tribal group representing the beneficiaries of an 1855 land compact between the Chippewa tribes and the US government.
The laws prohibit any company or other entity from violating the rights of the factory.
It appears to be the first time in the United States that a plant species has been granted legal personality, although last year the Ponca tribe in Oklahoma passed what is believed to be the first law codifying the rights of nature as a whole.
It also puts White Earth at the forefront of an environmental movement known as “Nature’s Rights,” championed by a Pennsylvania nonprofit called the Community Environmental Legal Defense Fund (CELDF). Lawyers for the tribe and the nonprofit say that US law treats nature as property and environmental protection laws have failed accordingly.
It remains to be seen whether the new legal concept holds up in court.
Kevin Reuther, a veteran environmental attorney at the Minnesota Center for Environmental Advocacy, said he favors the idea of nature’s legal rights, but right now it’s more philosophical than practice.
“This paradigm shift should be adopted by a state court here for it to have a practical impact on our practice,” he said.
Tribal lawyers describe the law as a kind of disruptive political tactic, a way to shine a light on Minnesota’s core values. Consider the dwindling walleye populations in Lac Mille Lacs, said White Earth tribal attorney Frank Bibeau, who is also executive director of the 1855 Treaty Authority.
“If the State of Minnesota lets this first golden lake become a bass fishing ground, then it gives nothing [care]said Bibeau. “We can’t pretend they’re monitoring our environment when this happens.”
But Bibeau said the laws could also help the tribe in an emerging court battle.
White Earth battled Enbridge Energy’s controversial Line 3 pipeline in north-central Minnesota. The $2.6 billion pipeline would carry Canadian oil to Enbridge’s terminal in Superior, Wisconsin. While it won’t cross White Earth lands, it would cross non-tribal waters where tribes have treaty rights to hunt, fish, and harvest rice.
In October, Enbridge applied to the Minnesota Pollution Control Agency for water quality certification for the pipeline, which is required for the company to obtain a key permit from the US Army Corps of Engineers.
If White Earth opposes certification, it can go to court — with the new laws in hand, Bibeau said. “We have a good chance because wild rice is specifically mentioned in a treaty,” he said.
Late last week, the tribe sent a letter to Gov. Tim Walz asking for a full pipeline hearing and attached the new provisions.
Sierra Club vs. Morton
Manoomin (the Ojibway word for wild rice) rights were adopted Dec. 31 by the White Earth Tribe, which has 25,000 members nationwide. The 1855 Treaty Authority adopted them on 5 December. Among the rights conferred are the right to “pure water and freshwater habitat” and to “a healthy climate”.
Bibeau said he hopes the codification of rights will help state regulators understand the tribe’s spiritual connection to wild rice. It’s not just an important food, but a “major part of our cultural and spiritual connection to the Creator who guided our ancestors to where food grows on water,” he said.
Angelique EagleWoman, a visiting professor at Mitchell Hamline School of Law in St. Paul, said she applauds the law and hopes other tribes will follow suit. EagleWoman said she sees the law as a return to long-standing Indigenous legal traditions, in which humans do not have dominion over other beings as they do in American and European law.
“White Earth is…really just reiterating very old traditional legal principles and putting them into modern code,” EagleWoman said. “I think we’re at the beginning of recognizing those kinds of rights.”
Environmental personality can strike many as a fringe idea. But Reuther noted that the U.S. Supreme Court considered the concept in a 1972 decision, Sierra Club v. Morton. Although the Sierra Club ultimately lost its bid to stop Walt Disney from building a ski resort in California, Judge William O. Douglas wrote a famous dissent saying the environment should have legal status.
“Contemporary public concern to protect the ecological balance of nature,” Douglas wrote, “should lead to the assignment of quality to environmental objects to pursue their own preservation.”
Protect Lake Erie
The idea has been taken up elsewhere in the world. A Maori tribe gave the Whanganui River on New Zealand’s North Island its own legal personality rights in 2017; Ecuador recognizes the rights of nature in its constitution.
CELDF has promoted the idea for decades. He has helped dozens of local governments draft what is called a community bill of rights, which establishes nature’s right to flourish. Ordinances generally prohibit certain activities, such as oil and gas fracking. Residents of Toledo, Ohio, for example, will vote this month on a Lake Erie bill of rights to fight pollution.
This effort has angered some business groups, who denounce CELDF as anti-development. Getting local measures on the ballot when they are unlikely to hold up in court is a waste of taxpayers’ money, said Chris Ventura, executive director of Consumer Energy Alliance-Midwest.
“They use a legal theory that is based more on fundraising practices than the law itself,” he said. “It’s an abuse of the law.”
The Community Bills of Rights Acts have been frequently challenged in court and have yet to have a final favorable ruling, said CELDF founder Thomas Linzey.
Still, he cited Grant Township in Pennsylvania, which passed an ordinance to shut down a fracking sewage injection well. Last year, after Pennsylvania General Electric sued the city, a federal judge ruled the order “frivolous.” She ordered Linzey and another attorney to pay the company $52,000 and reported them to the state Supreme Court Disciplinary Board.
Linzey is still awaiting the outcome of that proceeding, but said what’s important is that the Grant Township law allowed the ecosystem to participate in arguments before a federal judge, while delaying the review of the company’s hydraulic fracturing license.
Linzey said he sees the group’s work with Indian tribes as “a logical next step”. Tribes not only have more leeway than city governments, he said, but they have a long cultural tradition of valuing nature.
“The biggest change that needs to happen is in the long term,” Linzey said. “It’s not a small mountain to climb.”