In the decades since the oil and gas industry began investing heavily in hydraulic fracturing technology in the 1990s and early 2000s, people on the Ponca Reservation had been getting sick. And not just sick, but seriously ill. Elders of the Ponca Nation and leaders with close ties to environmental justice work being done around the reservation say there was a funeral a week. Others say you can’t grow food within 16 miles of the reservation because the soil is so polluted with toxic water.
The culprit was hydraulic fracturing, more commonly known as fracking, a process by which water and chemicals are injected into the earth deep underground to break apart rocks and release gas or oil. The wastewater is extremely toxic and has been linked with autoimmune diseases, cancers, reproductive health issues, and heart attacks. By definition, fracking creates an earthquake to drill for fossil fuels, the tremors of which can “trigger seismic slips and larger earthquakes.” Often associated with the more innocuous-sounding “natural gas,” which is lauded as an alternative to oil drilling, fracking increased 79% from 2007 through 2021 in the U.S.
In response to that boom, the Ponca Nation was the first Native nation to push back against the extractive industry by passing a Rights of Nature law in 2017. The idea is simple: natural elements like a waterway or mountain range possess inalienable rights, similar to those humans are entitled.
Owing influence from Indigenous worldviews and adapted to meet the cultural demands of the U.S. legal and court system, Rights of Nature statutes can allow for the protection of ecosystems and people as the framework underscores how the health of land and communities are one and the same.
“We offer legal protections to things that we value, and we should highly value the climate and the planet,” said Amy Cordalis, general counsel for the Yurok Tribe, which established the Rights of the Klamath River in 2019. “If we want to get out of the climate crisis, we have to expand the Rights of Nature, to at least a minimum of keeping [the planet] healthy enough to enable our own survival.”
The movement is rapidly gaining support, and experts and advocates say the legal framework is one of the most important tools in the fight to protect people and mitigate climate change.
In the Ponca Nation and the surrounding land in northern Oklahoma, that’s exactly what passing a Rights of Nature law did. Since 2017, fracking has been banned on Ponca lands. While this action can’t undo harms of the past, it did lay the groundwork for protecting Ponca peoples going forward, as well as establish a foundation for more recent legislation asserting the immutable rights of the Ní’skà (Arkansas) and Ni’ží’dè (Salt Fork) rivers.
The Rights of Nature laws and rights of river legislation help protect the land and Ponca peoples from pollution resulting from 47 underground injection control wells within one mile of the Ponca Tribal Statistical Area, according to Erica Jackson, manager of community outreach and support at FracTracker Alliance. In total, there are 79 oil and fracking wells within one mile and 70 wells within half a mile of the tribal area.
The minimum allowable distance of fracking wells from homes and schools, also known as setbacks, is 125 feet, though some cities have stricter guidelines. One study of children living near fracking wells in Pennsylvania found elevated risk of cancer for those living within six miles of a well. Prism reached out to the Oklahoma Department of Mines for comment but did not receive a response.
Other Native nations have followed in the Ponca Nation’s footsteps by proposing, implementing, and making use of Rights of Nature statutes to protect the inherent rights of species and ecosystems. Once Rights of Nature laws are passed, legal claims or “enforcement cases” can be filed to hold a polluting entity accountable.
Rights of Nature is the “largest, fastest growing environmental movement in history, globally,” said Shannon Biggs, one of the co-founders of Movement Rights, an organization dedicated to supporting Rights of Nature implementation. Biggs worked with leaders of the Ponca Nation to help draft its Rights of Nature law.
Part of that growth is owed to the growing force and threat of climate change, she said, but the ideology’s popularity is indicative of another truth: after years of failed climate policy at the federal and international level, there’s greater recognition that following Native leadership and land stewardship is one of the most important actions we can take to address the increasing ecological threat.
Three waves of a movement
According to Kekek Stark, an assistant professor of law at the University of Montana who is Ojibwe, there are three significant waves of the Rights of Nature movement. The first wave started in 2015 when tribes began discussing and enacting Rights of Nature laws to put “something on the books” and establish that the tribe has sovereign authority to enforce the law. The second wave is happening now, Stark says, as tribes explore how to ensure that Rights of Nature laws are enforceable and officials can operationalize the law and hold violating parties accountable. Stark says he hopes to see a third wave where the law actually can apply in practice to natural elements.
“To me, as an Ojibwe person, Rights of Nature is inherent within our cultural identity and our connection and responsibilities with nature,” Stark said.
When Rights of Nature laws were first introduced, the concept was a strange one for people to get behind, Biggs said. Rights of Nature formalize a worldview and understanding that is cultural, spiritual, and generational—or the complex interplay of the relationship between humans and ecosystems. It’s about “living in balance with the earth,” Biggs said.
This approach directly contradicts how the U.S. government treats nature as a collection of resources that can be bought, sold, and used to amass wealth, so advocates face the question of how Rights of Nature can exist within a system that opposes its validity. The expropriation of land and negation of Native sovereignty also play into whether land is bestowed its rights and the land’s stewards can formalize their practices. The creation of the reservation system outlined where fracking, drilling, and other extractive projects would take place, as reservations were often established in rural or remote areas. But there was a trade-off in this exchange for land.
According to one report from the University of New Mexico’s Community Environmental Health Program, “tribes ceded vast amounts of their traditional land base in exchange for recognition of their sovereign status to self-government and commitments to ensure protection of their health and culture.”
But later, as oil, mineral, and other mining activity proved profitable, the U.S. government reneged on treaty responsibilities “to provide access for mining by successively shrinking the area of lands designated to each tribe.” The same report estimates that 600,000 Native peoples live within 10 km of an abandoned mine. In other words, systematically reducing treaty-protected landmass of a tribe is part of what exposes tribal members to the consequences of mining.
Yet the proximity of extractive industries to Native land is an intentional policy decision. As Newsweek pointed out in 2015, “The reason you don’t see drilling rigs in Yellowstone National Park or the Grand Canyon isn’t the lack of interest among energy companies—it’s because such activities are banned there, as in most national parks.”
That’s where tribal courts come into the picture, Stark said. If federal or local courts won’t protect Native peoples from mining, fracking, and other pollution, tribal courts will.
Since the Ponca Nation passed its Rights of Nature law in 2017, others have followed. In 2018, the White Earth band of the Chippewa Nation approved a law asserting the “rights of manoomin,” a wild rice that’s indigenous to northern Minnesota and provides significant cultural, spiritual, and economic value to Ojibwe peoples. In 2019, the Yurok tribe in northern California passed a Rights of Nature law to protect the Klamath River.
It’s within these tribal court systems that Rights of Nature enforcement cases are first tested and taken seriously. For instance, in 2021, the White Earth Nation sued the operators of an oil replacement pipeline for violating the rights of manoomin. The White Earth Nation Court of Appeals dismissed the case in March 2022. In January 2022, the Sauk-Suiattle Indian Tribe filed a Rights of Nature lawsuit in tribal court to protect salmon in the Skagit River from pollution.
Stark, who was involved in reviewing the White Earth band’s law, said that the framework serves additional purposes beyond protecting against fossil fuel production and transportation.
“It’s bringing the culture and tradition forward and saying this is important,” Stark said. “We’re acknowledging it, and we’re enacting it as modern law to try to protect our lands but also to engage our responsibilities to the land.”
Overcoming challenges of implementation
The blueprint for Rights of Nature established by the Ponca and other Native nations is motivating, but some initial challenges still exist. For environmental advocate and community leader Lisa DeVille, a Mandan, Hidatsa, and Arikara tribal member who lives on the Fort Berthold Reservation in Mandaree, North Dakota, how to protect land and engage in responsibilities to the land is a central concern. For instance, when the doors were opened for fracking and drilling in the Bakken oil fields where DeVille lives, the culture began to change. The industry offered high-paying jobs, and slowly people’s identities were “replaced with the money,” DeVille said.
From her home, DeVille can see and hear the flares of fracking and oil operations. The flares sound like jet engines, she says, and operate 24/7 as a way of relieving underground pressure to prevent explosions. Flaring emits both carbon dioxide and methane, potent greenhouse gasses that contribute to global warming. Flaring in the Bakken range can even be seen from space. Because of flaring, DeVille says she and her husband deal with respiratory illnesses that some physicians have dubbed the “Bakken Cough”—an infection that usually ails those who work in oil fields.
DeVille says that it’s a lot more difficult to put an extractive industry out of business once its roots are planted. It’s far easier to prevent new operations from coming in, but that would require a level of agreement and coordination among tribal officials that DeVille said is not possible right now. She wants to see an implementation of a Rights of Nature law and says that there are some members of the tribal council who might be in favor of such a statute. Still, it would be an uphill battle.
Other Native nations face different forms of bureaucratic hurdles. For instance, the Ho-Chunk Nation was the first tribal government to approve a Rights of Nature constitutional amendment in 2016. Though the tribe’s General Council passed the amendment, it did not reach the 30% quorum of the tribe’s eligible voters to formalize the amendment.
“Although the people support the Rights of Nature measure, it has not been added to our tribal constitution,” Casey Brown, public relations officer for the Ho-Chunk Nation wrote by email. The 30% threshold “seems to be [a] hurdle we can’t get over to implement the change.”
Brown added that the General Council hasn’t met quorum to even hold a meeting since the onset of the COVID-19 pandemic.
“The intentions are there, but the Ho-Chunk Nation’s slow return to normalcy since easing our COVID restrictions has affected every area of the Nation from enterprises to the government’s return to normal function,” Brown said.
Even for those tribes with a Rights of Nature statute established, enforcing the rights is another question. Stark said that chronic underfunding from the U.S. federal government and systemic cultural and economic impoverishment have led to struggles around “capacity building.” Having the actual systems in place needed to enforce a law is a “huge thing in Indian country,” Stark said. Rights of Nature laws, like any other laws, require experts who can evaluate and determine whether the law is being violated, and later, officials to determine what remediation for a violation entails.
Cordalis said that the enforcement concerns she has are also about capacity, but more so around jurisdiction. Tribal sovereignty creates the ability for tribes to maintain jurisdiction and control over their lands and resources, and tribes have the ability to enforce those laws if an enrolled tribal member is found in violation of them. However, there’s a level of legal gray area around non-Native individuals and corporations and enforcement.
“I worry that those kinds of jurisdictional challenges will prevent these Rights of Nature laws and tribal courts from being fully enforced,” Cordalis said.
Even without a Rights of Nature law in place, DeVille knows this enforcement challenge—both capacity and otherwise—firsthand.
“Our EPA can’t even be an EPA,” she said, alluding to the challenges that officials already face mitigating oil spills and contaminated wastewater on the reservation. What would it look like to take a different approach to protecting the lands, and ultimately, protecting her people?
“Do we sit and wait until somebody gets sick?” DeVille asked. “We have to push for these laws … we need laws like that.”
She says that she’s interested in learning more about Rights of Nature laws and hopes to connect with other Native environmental leaders who have already put the laws on the books. But until the time when a Rights of Nature law is passed, DeVille says that she still “live[s] the struggle with my people.” The struggle doesn’t end when a well runs dry, either.
“The oil and gas industry can leave when they want,” DeVille said. “We will live with the aftermath.”
