Mary Annette Pember
Indian Country Today
A lawsuit filed over the rights of wild rice or manoomin in the White Earth Nation’s tribal court could offer new tools for tribes battling to protect treaty rights.
Conversely, aligning treaty rights with the rights of manoomin, water and other natural entities could give added clout to so-called “rights of nature” cases.
“The White Earth case is probably the most exciting thing to come down the road in the last five or 10 years from a rights-of-nature perspective,” said Thomas Lindzey, senior legal counsel for the Center for Democratic and Environmental Rights.
The Center is a nonprofit organization offering legal and legislative support for those seeking to advance, enforce and implement rights of nature.
Lindzey helped pass the first rights-of-nature law in the U.S. In 2006, the borough of Tamaqua, Pennsylvania, passed a law giving ecosystems legal rights.
The “rights of nature” argument recognizes that nature has rights just as human beings have rights. Rather than treating nature as property under the law, rights of nature cases contend that nature, rivers, forests and ecosystems have the right to exist, flourish, maintain and regenerate their life cycles. Further, humans have a legal responsibility to enforce those rights.
“In other regions of the Western Hemisphere, the rights of nature have been expressed through law based on Indigenous principals,” said Angelique Eaglewoman, professor and co-director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law. Eaglewoman is a citizen of the Sisseton-Wahpeton Dakota Oyate.
(Previous: 'Rights of nature’ lawsuits hit a sweet spot)
Bolivia, for example, enacted its Law of the Rights of Mother Earth in 2010. According to the law, “Mother Earth is a dynamic living system comprising an indivisible community of all living systems and living organisms, interrelated, interdependent and complimentary which share a common destiny. Mother Earth is considered sacred from the worldviews of nations and peasant Indigenous peoples.”
Ecuador was the first country to recognize the rights of nature in its constitution and issued the first rights of nature court decision in a case filed against the Provincial Government of Loja on behalf of the Vilcabamba River. In 2011, the court ruled in favor of the river, finding that government road construction was causing destruction of riverside land.
“These types of legal rights for nature are aligned with stewardship and reciprocity concepts in Indigenous legal traditions,” Eaglewoman said.
Although many treaties have been interpreted by federal courts to protect tribal rights to hunt, fish and gather on ceded lands, the resources themselves haven’t been legally protected. Until now.
In a 2018 case known as the culverts case in Washington state over the impact of culverts on fishing, a federal court interpreted tribal treaty rights to fish to include protections of fishery habitat from man-made degradation.
In 1999, the U.S. Supreme Court held in a case that pitted Minnesota against the Mille Lacs Band of Chippewa Indians that off-reservation harvesting, fishing and hunting rights on ceded territories exist for Minnesota Chippewa tribes, according to Eaglewoman.
“What we’re seeing in the White Earth Nation’s filing a lawsuit in tribal court is enforcement on two fronts, treaty rights and moving the law forward on the rights of a living species (manoomin) as a treaty resource itself,” she said.
“Bringing an action specifically on that treaty resource should further strengthen the treaty rights argument.”
Eaglewoman noted that the Supremacy Clause, Article VI of the U.S. Constitution, states that federal law, the U.S. Constitution and treaties are the supreme law of the land.
The manoomin lawsuit raises the question of who is responsible for protecting the resources, Lindzey said.
“That’s why this case is huge,” he said. “It could literally be opening the door to tribes holding treaty rights in the U.S. to protect resources on treaty lands.”
To date, there haven’t been any wins in rights of nature cases in the U.S., leaving many people wondering if they can be an effective in U.S. courts. Lindzey said there are few other options.
“It really has to work because nothing else has,” Lindzey said. “We’re now 40 years into major environmental laws in the U.S. and things are worse now by every environmental measure.
"This is the last great hope we have of salvaging our planet.”
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