Minnesota Lawyer
Eyes from across the globe are on Minnesota as ongoing litigation, now in the 8th Circuit, could result in granting legal rights to wild rice. On December 16, 2021, parties in the case of Manoomin v. Minnesota Department of Natural Resources appeared before an appeals panel in St. Paul.
This case is one of many across the United States and world where there has been an attempt to grant legal rights to nature. In a number of countries, nature has been given legal rights through judicial rulings and legislation. The constitution of Ecuador gives Mother Earth legal standing; Ecuador was the first country in the world to codify the rights of nature. In Bangladesh, rivers have rights and are considered “legal entities.” This was upheld by the Appellate Division of the Supreme Court of Bangladesh. There are at least 30 places in the United States where rights of nature laws have been enacted. Notably, the case of Manoomin v. Minnesota DNR is the “first case brought in a tribal court to enforce the rights of nature.”
Wild rice, also known as manoomin (translated as “the good berry” in Ojibwe), has profound significance beyond being a culinary staple, being featured prominently in cultural and spiritual traditions.
On Aug. 4, the White Earth Band of Ojibwe sued the state of Minnesota in tribal court for its issuance in June of a permit allowing Enbridge Energy to divert around 5 billion gallons of water from trenches dug as it continued construction work to replace sections of the Line 3 oil pipeline. It involved constructing 330 miles of pipeline to replace the existing 282 miles of pipeline. The pipeline would bring nearly 760,000 barrels of tar sands per day from Alberta, Canada, to Superior, Wisconsin. This replacement project was proposed to address known integrity risks, reduce apportionment, and restore flexibility, according to the Minnesota Public Utilities Commission.
The White Earth Band argues that the permit violated 2018 tribal code, which protects wild rice. In December 2018, the band adopted a “rights of manoomin” tribal law. This law recognizes the rice’s right to “exist, flourish, regenerate, and evolve.” The crop, and not the members of the tribe, holds the rights that are “legally enforceable” independent of the rights that the tribal members possess.
Additionally, the plaintiffs allege that the construction violated treaties signed in the 19th century by the U.S. government, which guaranteed the tribe’s right to gather wild rice on treaty land. In exchange for ceding lands to the United States government, the treaty reserved rights for hunting, fishing and gathering. These rights are referred to as “usufructuary rights.” While the water diverted for the construction was outside of the tribe’s reservation, it was on territories that are covered by those treaties.
In the complaint, the plaintiffs ask for, in addition to rescinding the DNR water appropriation permits issued for Line 3, a declaration that manoomin has inherent legal rights.
Chief Judge David DeGroat is the judge presiding over the case in White Earth Tribal Court. He denied Minnesota’s motion to dismiss the case, finding that the tribe’s sovereign immunity beat the state’s claim of sovereign immunity. The DNR filed an injunction in August in the U.S. District Court of Minnesota, arguing that the tribal court lacked jurisdiction to hear the suit, contending that “The White Earth Band of Ojibwe lacks jurisdiction over nonmembers for actions occurring off the reservation.” In September, U.S. District Judge Wilhelmina Wright denied plaintiffs’ motion for a preliminary injunction and dismissed the complaint, ruling that the court lacked subject-matter jurisdiction over the case given the defendants’ tribal sovereign immunity. This led to the 8th Circuit appeal.
Oliver Larson, assistant attorney general, asserted that White Earth wanted to apply their tribal legal code off the reservation to treaty lands located beyond the boundaries of the reservation. Larson argued, “What they’re purporting to do is to take a tribal legal code and apply it off-reservation on the theory that their usufructuary rights allow them to do that.”
Joe Plumer, who is representing the White Earth Band, insisted that while the water use permit was issued for land outside of the reservation boundaries, the construction activity impacted Lower Rice Lake, which Plumer referred to as “the crown jewel” of wild rice.
Thomas Linzey is the senior legal counsel for the Center for Democratic and Environmental Rights. He explained, “This is the first rights of nature enforcement case brought in a tribal court. The State is arguing that the tribal court doesn’t have jurisdiction in a case in which the State’s actions have put the rights of wild rice and tribal members at risk. It demonstrates how tribal sovereignty is integrally involved with the authority of tribes to protect nature.”
As of the end of September, the Line 3 project was declared substantially completed. Al Monaco, Enbridge president and chief executive officer, said in a Sept. 29 press release: “We’re also very proud of the relationship of trust we’ve built with communities along the right-of-way in both Canada and the United States. Our goal is to continuously live up to the trust that all of our stakeholders have placed in us.” In the same press release, Enbridge noted that over “$300 million went directly to Native-owned contractors” and that more than “1,500 Indigenous people worked on replacing Line 3 in the U.S. and Canada.”
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