Ho-Chunk Nation of Wisconsin General Council Votes to Add “Rights of Nature” to Tribal Constitution

Rural America In These Times

The Ho-Chunk are native to the present-day states of Wisconsin, Minnesota, and parts of Iowa and Illinois. The two separate federally recognized tribal governments are the Ho-Chunk Nation of Wisconsin and Winnebago Tribe of Nebraska.

On Sep­tem­ber 17, the Ho-Chunk Nation of Wisconsin’s Gen­er­al Coun­cil vot­ed to amend its trib­al con­sti­tu­tion to include Rights of Nature. The amend­ment — acknowl­edg­ing that ecosys­tems and nat­ur­al com­mu­ni­ties with­in the Ho-Chunk ter­ri­to­ry pos­sess an inher­ent, fun­da­men­tal, and inalien­able right to exist and thrive” — will allow the tribe to legal­ly pro­hib­it frac sand min­ing, fos­sil fuel extrac­tion and genet­ic engi­neer­ing in their communities.

The Ho-Chunk are the first trib­al nation to draft such mea­sures for their con­sti­tu­tion, but sim­i­lar efforts are under­way (or already on the books) in dozens of munic­i­pal­i­ties in the Unit­ed States and in coun­tries around the world. In 2008, Ecuador became the first coun­try to adopt Rights of Nature arti­cles in their nation­al con­sti­tu­tion — declar­ing not only that nature has the right to inte­gral respect for its exis­tence and for the main­te­nance and regen­er­a­tion of its life cycles, struc­ture, func­tions and evo­lu­tion­ary process­es” but also that per­sons, com­mu­ni­ties, peo­ples and nations can call upon pub­lic author­i­ties to enforce” this right.

As a rule, once nature is grant­ed rights, large-scale extrac­tive indus­tries vio­late those rights — dam­age to the ecosys­tems sur­round­ing the tar­get­ed resource (what the min­ing indus­try refers to as over­bur­den”) being inevitable. In the Unit­ed States, in 2014, the Lit­tle Mahon­ing Water­shed in Grant Town­ship, Indi­ana Coun­ty, Penn., became the first ecosys­tem to inter­vene in a law­suit.

Con­ven­tion­al envi­ron­men­tal­ism does not pro­tect the environment

Near­ly all of these cam­paigns have been assist­ed or spear­head­ed by the Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund (CELDF)—a non-prof­it, non-gov­ern­men­tal orga­ni­za­tion that part­ners with civ­il soci­ety orga­ni­za­tions, indige­nous peo­ples, com­mu­ni­ties, and gov­ern­ments around the world to pro­vide peo­ple with the legal tools need­ed to pro­tect their ecosys­tems from destruc­tion (often at the hands of ener­gy cor­po­ra­tions and the gov­ern­ments who side with them). While at the fore­front of the com­mu­ni­ty rights move­ment in the Unit­ed States, CELDF is also cur­rent­ly work­ing in India, Nepal, Aus­tralia, Cameroon, Colom­bia, and oth­er coun­tries on the Rights of Nature. Thomas Linzey, the organization’s founder and exec­u­tive direc­tor, is a con­tribut­ing writer to Rur­al Amer­i­ca In These Times.

The con­cept of grant­i­ng inalien­able rights to trees, oceans and moun­tains is con­tro­ver­sial. Accept­ing that cor­po­ra­tions are peo­ple has proved much eas­i­er for the West­ern world to ral­ly behind than recent attempts to give ecosys­tems — the mech­a­nisms on which all life depends — a voice. This is prob­a­bly because, at first glance, the Rights of Nature con­cept sounds like a colos­sal wind­fall for lawyers and a vehi­cle for the imple­men­ta­tion of more feel-good, but inef­fec­tive reg­u­la­tion. In real­i­ty, it’s the fail­ure of gov­ern­ments around the world to ade­quate­ly act on behalf of their peo­ple that is fuel­ing the movement’s rise. At the heart of the Rights of Nature move­ment is the under­stand­ing that cur­rent envi­ron­men­tal efforts — par­tic­u­lar­ly the laws and reg­u­la­tions they inspire — are abject fail­ures. They remain doomed from their very con­cep­tion because these poli­cies are oper­at­ing with­in the same resource exploita­tion-based frame­work on which mod­ern soci­ety is founded.

On the group’s web­site, CELDF, an advo­cate for a community’s right to self-gov­ern, puts it this way:

Today, legal sys­tems around the world treat nature as prop­er­ty to be exploit­ed. Hav­ing title to prop­er­ty car­ries with it the legal author­i­ty to destroy the nat­ur­al com­mu­ni­ties that depend upon that prop­er­ty for sur­vival. Nature is right-less.

Envi­ron­men­tal laws legit­imize this use of nature by reg­u­lat­ing it. These reg­u­la­tions legal­ize envi­ron­men­tal harm. Envi­ron­men­tal laws in the Unit­ed States — includ­ing the fed­er­al Clean Air Act, the Clean Water Act, and sim­i­lar state laws — reg­u­late how much pol­lu­tion or destruc­tion of nature can occur under law. Rather than pre­vent­ing pol­lu­tion and envi­ron­men­tal destruc­tion, our envi­ron­men­tal laws cod­i­fy it.

In the Unit­ed States, for exam­ple, under the Clean Water Act and the Sur­face Min­ing Con­trol and Recla­ma­tion Act, coal cor­po­ra­tions are autho­rized to blow the tops off moun­tains. Under state oil and gas laws, cor­po­ra­tions are autho­rized to frack, mine and drill.

Fur­ther, in the Unit­ed States, the few pro­tec­tions we do have for flo­ra and fau­na were passed under the author­i­ty of the Com­merce Clause of the U.S. Con­sti­tu­tion. The Com­merce Clause grants exclu­sive author­i­ty over inter­state com­merce” to Congress.Thus nature is treat­ed as a com­mod­i­ty, rather than as enti­ties with the right to exist and thrive.

Ecosys­tems and species across the globe are fac­ing col­lapse under this legal frame­work. By almost every mea­sure, the envi­ron­ment is worse today than when major U.S. envi­ron­men­tal laws were adopt­ed over 40 years ago. Despite this, coun­tries around the world have sought to repli­cate U.S. envi­ron­men­tal laws. Species decline world­wide is increas­ing, defor­esta­tion is con­tin­u­ing, ocean acid­i­fi­ca­tion is advanc­ing, and glob­al warm­ing is accel­er­at­ing far more than pre­vi­ous­ly believed. 

In oth­er words, the Rights of Nature move­ment is argu­ing that in order to tru­ly pro­tect the envi­ron­ment, we must fun­da­men­tal­ly change the rela­tion­ship between humankind and nature.” And in order for this tran­si­tion to take place, we must stop con­sid­er­ing our­selves and the soci­eties we cre­ate as sep­a­rate from nature.

The Glob­al Alliance for the Rights of Nature, an inter­na­tion­al orga­ni­za­tion with which CELDF is aligned, explains it this way:

Rights of Nature is the recog­ni­tion and hon­or­ing that Nature has rights. It is the recog­ni­tion that our ecosys­tems — includ­ing trees, oceans, ani­mals, moun­tains — have rights just as human beings have rights. Rights of Nature is about bal­anc­ing what is good for human beings against what is good for oth­er species, what is good for the plan­et as a world. It is the holis­tic recog­ni­tion that all life, all ecosys­tems on our plan­et are deeply intertwined.

Rather than treat­ing nature as prop­er­ty under the law, rights of nature acknowl­edges that nature in all its life forms has the right to exist, per­sist, main­tain and regen­er­ate its vital cycles.

And we — the peo­ple — have the legal author­i­ty and respon­si­bil­i­ty to enforce these rights on behalf of ecosys­tems. The ecosys­tem itself can be named as the defendant. 

Under Rights of Nature laws:

  • Nature is empow­ered to defend and enforce its own rights;
  • Peo­ple are empow­ered to defend and enforce the Rights of Nature; and
  • Gov­ern­ments are required to imple­ment, defend, and enforce the Rights of Nature.
The rise of eco-centricity?

Though peo­ple dis­agree as to how we get there, many of us can agree that pro­tect­ing this planet’s air, land and water in the long-term will require replac­ing society’s cur­rent anthro­pocen­tric world­view with a more eco-cen­tric one — accept­ing that we are not sep­a­rate from nature. This real­i­ty is spurring some inter­est­ing dis­cus­sions (and action) around the world.

For an inter­est­ing read about the impli­ca­tions of enforc­ing rights of nature on a glob­al scale, check out Femke Wijdekop’s August 2016 essay for Great​Tran​si​tion​.org, Against Eco­cide: Legal Pro­tec­tion for Earth. Explor­ing what it might take to achieve a more sus­tain­able par­a­digm, Wijdekop, an attor­ney for the Insti­tute for Envi­ron­men­tal Secu­ri­ty in Hol­land, calls the recent rise of cli­mate lit­i­ga­tion an excit­ing devel­op­ment in the legal land­scape” if for no oth­er rea­son than such lit­i­ga­tion chal­lenges short-term polit­i­cal think­ing with legal action that focus­es on the long-term con­se­quences of today’s deci­sions.” Ulti­mate­ly, Wijdekop ques­tions whether eco­cide — the mas­sive dam­age and destruc­tion of ecosys­tems, such as the defor­esta­tion of the Ama­zon, the Deep Hori­zon oil spill, the Fukushi­ma nuclear dis­as­ter, and Athabas­ca tar sands extrac­tion” — should be con­sid­ered the fifth inter­na­tion­al crime.” (The oth­er four are crimes rec­og­nized by the World Court in the Hague are crimes against human­i­ty, war crimes, geno­cide and crimes of aggression.)

Here’s the press release regard­ing the Ho-Chunk Gen­er­al Coun­cil’s vote in its entirety:

On Sat­ur­day, the Gen­er­al Coun­cil of the Ho-Chunk Nation vot­ed over­whelm­ing­ly to amend their trib­al con­sti­tu­tion to enshrine the Rights of Nature. The Ho-Chunk Nation is the first trib­al nation in the Unit­ed States to take this crit­i­cal step. A vote of the full mem­ber­ship will follow.

The amend­ment estab­lish­es: Ecosys­tems and nat­ur­al com­mu­ni­ties with­in the Ho-Chunk ter­ri­to­ry pos­sess an inher­ent, fun­da­men­tal and inalien­able right to exist and thrive.” Fur­ther it pro­hibits frac sand min­ing, fos­sil fuel extrac­tion, and genet­ic engi­neer­ing as vio­la­tions of the Rights of Nature.

The Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund (CELDF) assist­ed mem­bers of the Ho-Chunk Nation to draft the amendment.

Bill Green­deer, a mem­ber of the Ho-Chunk Nation and the Deer clan, pro­posed the amend­ment. He explained, Pass­ing the Rights of Nature amend­ment will help us pro­tect our land.”

Mari Margil, CELDF’s Asso­ciate Direc­tor stat­ed, We are hon­ored to assist the Ho-Chunk Nation to become the first trib­al nation to enshrine the Rights of Nature in its constitution.”

Margil added, With this vote, the Ho-Chunk Nation has tak­en a crit­i­cal step to pro­hib­it fos­sil fuel extrac­tion as a vio­la­tion of the Rights of Nature. This comes as the Ho-Chunk stand in sol­i­dar­i­ty with the Stand­ing Rock Sioux in oppo­si­tion to the Dako­ta Access oil pipeline, rec­og­niz­ing the inher­ent­ly destruc­tive impact of fos­sil fuel extrac­tion and development.”

CELDF will be meet­ing with mem­bers of the Ho-Chunk Nation and mem­bers of oth­er trib­al nations in Wis­con­sin at the Tra­di­tion­al Eco­log­i­cal Knowl­edge con­fer­ence to dis­cuss Rights of Nature. The con­fer­ence is being held in La Crosse, Wisc., at Viter­bo Uni­ver­si­ty on Octo­ber 14.

(Ed. Note 10/5/2016: We will update this post with infor­ma­tion on the tribe’s full mem­ber­ship vote when it becomes available.)

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