U.S. federal judges will soon decide whether a lawsuit can proceed in the tribal court of White Earth Nation to decide if manoomin—or wild rice—is entitled to civil rights and if the nation itself is allowed to prevent the state of Minnesota from encroaching on those rights by approving operation for the Line 3 section of a transnational crude oil pipeline.
The lawsuit is the latest effort against Line 3 to protect tribal lands and could change the landscape of pipeline resistance, environmental law, and the sovereignty of treaties between Native nations and the federal government. As the time to mitigate climate change narrows, the efficacy of “Rights of Nature” cases could offer a blueprint of achieving climate justice. The legal battle rests on differing understandings of what rights nature is entitled to and what weight treaties, as the supreme law of the land, bear on holding the state of Minnesota to account.
In 2018, the White Earth Nation, one of the six bands of the Minnesota Chippewa Tribe, passed a law enshrining the Rights of Nature, the concept that ecosystems can possess legally enforceable rights of their own. Manoomin is an integral element in Chippewa spiritual and cultural practice. The water where manoomin grows could be severely, if not irrevocably, harmed by a pipeline section known as Line 3.
Frank Bibeau, a tribal attorney for the White Earth Nation, helped to draft the nation’s Rights of Nature and is now responsible for the strategy that hinges on legal frameworks written centuries apart that may work together to help protect manoomin. The lawsuit will be heard in tribal court, although the state of Minnesota has attempted to prevent this through the federal district court and the 8th Circuit Court of Appeals. The lawsuit’s claims are based on treaties signed in 1837, 1854, and 1855 between the Chippewa Nation and the U.S. guaranteeing tribal nations ability to protect the health and integrity of natural elements. In other words, the White Earth band claims that the dewatering permit issued by the Minnesota Department of Natural Resources (DNR) for Line 3’s construction violates the rights of manoomin to exist, flourish, and thrive, as it’s legally entitled to under the Rights of Nature law.
“Every treaty is a federal statute, and the Chippewa have 44 treaties, and our rights are strong,” Bibeau said. “We have an obligation amongst ourselves to keep everything as good as we can in perpetuity for all the future generations.”
Threatening the waters
Since time immemorial, the Ojibwe peoples, also known as the Chippewa Nation, have harvested manoomin from freshwater lakes for sustenance as well as to preserve their identity. Manoomin’s existence tells the Ojibwe migration story of when their ancestors were instructed by the Creator to venture west and build a home where the food grew on water. That food was manoomin. Now, they continue to steward what’s known to the non-Native world as northern Minnesota, protecting manoomin because manoomin protects them. Its provenance is the basis of a reciprocal relationship, not one between humans and food, but relations whose stories—and existences—are inextricably intertwined.
However, the waters where manoomin grows, not to mention manoomin itself, are under siege. Even this an understatement: water is fundamental to a healthy ecosystem, and a slight change in water levels can impact manoomin health, avian migratory patterns, as well as populations of important microbes or bacteria in the water. The most glaring cause of the environmental distress that now taunts the manoomin is the newly operational Line 3, which transports 760,000 barrels of oil each day.
Enbridge, the Canadian company that owns the pipeline and which began planning repairs on the deteriorating section in 2014, asserts that its operations won’t impact waterways where manoomin grows, but water protectors know that when it comes to oil pipelines, it’s not a matter of if there will be an oil spill, but when. DNR has repeatedly claimed that the company has followed all necessary environmental reviews and continues to defend that its approval of a permit for 5 billion gallons of groundwater was sound. The DNR’s own legislative report cites changes in water levels as a threat to manoomin’s existence.
Though an estimated three dozen American governing bodies and several tribal nations have embraced Rights of Nature laws, Thomas Linzey, senior legal counsel for the Center for Democratic and Environmental Rights who also drafted the earliest Rights of Nature laws in the U.S., says that Western law has yet to fully embrace the concept.
“In Western law, nature is property and property is to be owned, which basically gives birth to the concept that the more nature that you own, the more that you can legally destroy,” Linzey said.
The underpinning of U.S. property rights is the idea that those who own the land are entitled to extract what they want from that land and to be the primary beneficiaries of the capital produced by that extraction. Notably, they are also often unaffected by the consequences of that extraction and production, such as pollution, while others are left to pay that price. For instance, uranium mining in and near the Navajo nation made government contractors rich during the Cold War, while Navajo citizens still report exposure to cancer and other diseases. Climate change harms those with the fewest resources to combat its impacts, as evidenced by state and federal responses to recent disasters like Hurricane Ida. Not to mention that climate action and environmental justice are often positioned as counterproductive to achieving economic justice, an argument that benefits those who own and operate prisons.
But the framework and philosophy of Nature Rights are gaining traction as climate change increasingly threatens to upend our lives. Indigenous knowledge and stewardship practices are beginning to receive due recognition for working with the land rather than against it. Indigenous knowledge and ways of stewarding and existing in relationship with the environment, known broadly as Traditional Ecological Knowledge, can mitigate climate change, a fact acknowledged by the United Nations and experienced firsthand by communities and groups most directly impacted by ecological disrepair. Returning land, and at the very least, returning responsibilities of land stewardship to Indigenous peoples, is not simply an act of conserving resources for the next generation, it’s also an acknowledgement of the ways that land theft and capitalism—both essential to the creation of the U.S.—are co-conspirators in the crisis of climate change.
History and Culture at Stake
Manoomin is an ancient grain, Bibeau said, possibly the only grain indigenous to North America. Other grains that have become defining features in American cuisine, like wheat, were first grown along the Tigris and Euphrates river valley. Over time, trade and colonization brought wheat and other grains like barley, first grown in Western Asia, to Turtle Island, also known as Central and North America. Manoomin also happens to be the Minnesota state grain, with even some non-Natives engaging in traditional harvesting practices. It’s even possible to purchase wild rice from the White Earth and Red Lake nations and other online non-Native stores.
Still, most manoomin is harvested for personal use by the Ojibwe, with teams of two on non-motorized canoes knocking mature manoomin kernels off the sheath growing in the water. Bibeau learned from his cousin how to harvest manoomin and goes out onto the water every so often in a lightweight aluminum canoe offered to him by his grandfather. It’s a sensory experience that hasn’t changed much, if at all, throughout generations, with one person moving paddles through the water and another making a “swooshing kind of a sound” with the knockers as they make contact with the manoomin, Bibeau said.
“I’ve been out there before and there were old Indians out there picking rice, and they would have a little cassette player playing some powwow music, and they would pick rice to that rhythm,” Bibeau said. “That was a lot more traditional [when] rice camps for probably three to four weeks [would harvest] on a good rice lake, and so the drum would be playing anyway, just like we would turn on the radio to listen to music while we’re working.”
After harvesting, manoomin needs to be dried out before being processed. Bibeau said that the taste can be woody or nutty, though that too can vary on preparation. Salt, butter, or maple syrup are all potential seasonings, but Bibeau’s favorite way to prepare manoomin is in pancakes.
“It’s almost like the wild rice changes to a blueberry,” Bibeau said. “Each time that you bite into a kernel of wild rice, there’s like a little moisture explosion and that sweetness—and I swear it’s just like having a blueberry.” That’s probably why, he adds, the translation of manoomin is “the good berry.”
Harvesting manoomin, on and off reservation lands, is codified by treaties through what are known as usufructuary, or property, rights, though much of what the lawsuit hinges on is whether or not Ojibwe are entitled to protecting manoomin from activities happening outside the borders of the White Earth reservation. The Minnesota Court of Appeals ruled in a 2019 case that an 1854 treaty, which explicitly laid out the right to hunt, fish, and gather in exchange for land, was later nullified by an 1855 treaty that doesn’t explicate these rights, making it unclear how treaty law will be interpreted in the manoomin case.
“It doesn’t take a brilliant legal mind to know that you’re not giving away everything just because maybe you’re selling one thing,” said Jill Doerfler, a professor in and head of the Department of American Indian Studies at the University of Minnesota at Duluth.
Doerfler, who grew up on the White Earth Reservation in Mahnomen County, says that courts have to consider the intention of treaty signatories, especially if they speak different languages. Ojibwe peoples intended a reciprocal relationship and shared usage of the land, she said, not to mention that successive treaties don’t cancel out previous ones.
Ironically, Doerfler said, what the state of Minnesota is attempting to undermine is exactly what legitimated the existence of the U.S. as a young nation. Treaties are an integral part of the foundation of the U.S., as treaty-making with the British and other European nations was a way of both establishing foreign policy and proving itself as a sovereign country, Doerfler said.
“If those treaties wouldn’t have been signed and if the Native nations wouldn’t have ceded that territory to the U.S., it wouldn’t be the U.S.,” Doerfler said. “The reason that non-Indians have a right to be there is because of that treaty.”
Treaties are living documents, influencing government-to-government relationships and lawful behavior as much as the Constitution does, but the racist and pervasive notion that these treaties aren’t needed or relevant undermines Indigenous sovereignty. And in an era of growing ecological disasters, it also ignores the tried and tested wisdom of working with, rather than trying to dominate, the land of the original stewards of the land now called America. Indigenous leaders say that pipelines are not inevitable, though unmitigable climate change is if we continue extracting, burning, and profiting off of fossil fuels. Rights of Nature law, which may sound strange to the untrained ear, crystalize what we already know and Native peoples have been saying: we are all in relationship with the Earth, that we need the planet’s air, water, and land in order to live. Without the Rights of Nature, there are no human rights.
But surely, one of the most compelling arguments that anyone, including a federal judge, can understand is that food tells us who we are and where we’ve been. Upholding the rights of manoomin to grow and flourish in the present is a way of honoring the good berry’s past and a means of making sure both of us have a future.