Editor’s Note: This article was originally published by Stateline, an initiative of The Pew Charitable Trusts.
In what is believed to be the first tribal court case brought under the “rights of nature” legal doctrine, the White Earth Band of Ojibwe in Minnesota has filed an action in its court system on behalf of manoomin (wild rice) to stop billions of gallons of water from being diverted for an oil pipeline.
In 2018, the tribe enshrined in its law the right of manoomin to “exist, flourish, regenerate and evolve” — part of a growing movement led by Indigenous people to give legal rights to nature and to change its status as property. The tribe argues that the diversion of 5 billion gallons of groundwater for the construction of Enbridge’s Line 3 oil pipeline would violate manoomin’s rights.
“This is a daring move,” said tribal attorney Frank Bibeau. “We’re doing something that hasn’t been done.”
Critics have argued that recognizing rights of nature would make businesses and governments vulnerable to lawsuits over almost any action with an impact on the environment.
Meanwhile, the tribal leaders say the oil company’s permit also violates their treaty rights, which promise tribal members can gather wild rice. In recent years, tribes have increasingly used their treaty-guaranteed rights to hunt, fish and gather as a legal tool to protect the ecosystems on which those customs rely
“Wild rice is the center of our culture,” Bibeau said. “Wild rice is what brought us to the Great Lakes. We cannot allow the state of Minnesota to continue to undercut and sell us out.”
According to Bibeau, the state is seeking to dismiss the case for lack of jurisdiction, but he believes treaty rights give tribal members the ability to press the case.
“A lot of the territory that’s being crossed [by the pipeline] is public forest and public waters, and those are the primary places where we exercise our rights to hunt, fish and gather,” he said. “Our treaty foods are dependent on abundant, high-quality water.”
The lawsuit asks the tribal court to issue an injunction against the Minnesota Department of Natural Resources to void the water permit issued by the agency. Bibeau said that state officials would be unlikely to follow a decision issued by a tribal court, but starting the case there could help fast-track a decision in federal court.
If the tribe succeeds, Bibeau said it could be a landmark case that further strengthens tribal claims to protect ecosystems and resources.
“This is going to have a profound effect on what our rights are and how they can be used in the future for other tribes,” he said. “How do we make them have to get our consent? We need to understand how to assert our rights, and we just haven’t played these cards the right way yet.”
Alex Brown covers environmental issues for Stateline. Prior to joining Pew, Brown wrote for The Chronicle in Lewis County, Washington state. He’s won awards for investigative reporting and feature writing from the Pacific Northwest Newspaper Association. In 2017, Brown thru-hiked the 2,650-mile Pacific Crest Trail, which traverses mountain ranges from the Mexican border to the Canadian border. He previously was a congressional correspondent for National Journal, where he covered energy and environment, technology and campaigns. Brown graduated from Union University and is a native of Michigan.