Nature Has Standing: The Expansion of Tribal Epistemologies in Federal Courts

• In Event: Indigenous Politics and Policy

Abstract

In 2021, one of the first “rights of nature” lawsuits was filed in defense of Manoomin against the Minnesota Department of Natural Resources to prevent it from issuing a permit to Enbridge Energy, a Canadian-based corporation which is attempting to expand a pipeline across northern Minnesota, territory ceded from the White Earth Ojibwe nation. The MN DNR asked for an injunction against the suit, arguing that a tribal law had no authority in state and federal courts, and that the tribe had no standing to intervene into the state’s sole authority to review and issue permits. But the federal district court ruled against the injunction and the case will be heard in a federal court of appeals in late 2022.

White Earth had established Manoomin as a protected species in through its legislature in 2018 because it was central to Ojibwe meanings and its traditions of harvesting each year renewed cultural practices. To flourish, Manoomin requires clean water and a healthy ecosystem which would be endangered by leaks or spills from a pipeline. Citing tribal rights to hunt, fish, and forage in reserved rights agreed to in 19th century land cessions between the Ojibwe tribes and the federal government, White Earth asserted tribal law to protect the rights of the wild rice into the decision-making process of the state not as an environmental resource, but as a legal entity with rights entitled to sustainability and kinship worthy of protection. Recognizing Manoomin within the context of Ojibwe epistemology rather than translating it into western and colonized meanings has the potential to radically expand tribal sovereignty within the federalist relationship.

This type of legal claim could not have been possible without the strengthening of tribal courts and the increased capacity of tribal governments and attorneys, versed in oral histories as well as legal training. It’s the product of tribal rulings, reflective of cultural values, recognized in federal courts and the federal recognition that protecting tribal assets and cultural survivance depends upon actions taken outside of the jurisdiction of tribal governments. But expanding legal arguments to include non-human relatives and extending protection brings a holistic perspective that goes beyond legal precedents.

While tribes and Indigenous legal scholars have fought long for the realization of tribal sovereignty and the expansion of Indigenous rights in legal proceedings, they have been hamstrung for the need to translate cultural understandings and normative practices into Anglo-legal terms to be heard. Constraining holistic and place-based epistemologies into western jurisprudence has led to contorting meaning, in best cases, and resulting in assimilative and divisive decisions in the worst cases that reinforce colonialism understandings (Borrow 2019, Fletcher 2021).

These cases build into a growing work that seek to redefine a relationship between Indigenous nations and the settler colonial nations in which they share territory. The aspirations of the 2007 UNDRIP, now ratified by most members of the international community, including the US and Canada, are reflected in the movement to recognize Indigenous understandings on their own terms. Efforts to incorporate legal pluralism and multi-cultural jurisprudence within a single entity also reflects this impulse and articulation.

The case has implications for tribes across the U.S. because any tribal nation which is a party to a treaty with the U.S. government could use this same mechanism to challenge permits issued on those ceded lands. While the Manoomin case is working itself through the federal court system, other tribes are passing their own “rights of nature” legislation with the hope to offer a stronger defense of non-human relatives whose livelihood is being threatened by resource extraction or other types of industry. The “Menominee River,” a site of the Menominee people’s origin story and one of the few rivers which still hosts sturgeon, has passed its own “rights of nature” legislation to recognize the “inherent right to exist and thrive” in the Great Lakes area. If the state of Wisconsin and Michigan move forward with their permitting authority to allow mining or other industry that will threaten the river, the tribe will bring suit.

In this paper, I plan to explore this impact of federal courts willing to allow tribes to introduce Indigenous epistemologies into legal proceedings by focusing on the “state of nature” legislation in the Great Lakes cases. Why they are in their initial stages, they promise to strengthen the position of the tribes, but will also likely lead to some creative new legal understandings.

Author

• Paula Mohan, UW-Madison