Defending Wild Rice

Words by Alexandria Herr

VIDeo by amber black

Manoomin, or wild rice, was granted legal status by the White Earth Nation in part because of the grain’s central place in Anishinaabe culture. Now, White Earth is filing a lawsuit on behalf of the grain in protest of the Line 3 pipeline, making it the first rights of nature case to ever enter tribal court.

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On the lakes of northern Minnesota, late summer and early fall means wild rice—or manoomin, the good berry, in Anishinaabe language. Every year, harvesters go out on the northern waters and collect hundreds of pounds of the grain by canoe.

 

For the Anishinaabe people, wild rice is a sacred cultural lifeway. It’s the first food eaten by babies and the last food eaten by elderly. It’s also central to the Anishinaabe migration story: according to oral history, the Anisinaabe were prophesied to live in the land where food grows on water, and settled in the Great Lakes region at the end of a long journey from the east coast when they found manoomin.

 

“Manoomin is something that’s community,” said Frank Bibeau, a lawyer for the White Earth band of Ojibwe and a life long wild rice harvester and processor. “Everyone has eaten it up here, gathered it up here.”

But this year, the harvest is different. Bibeau says that the water level in Northern Minnesota is so low in the wild rice lakes that many harvesters can’t bring their canoes to the places they would typically harvest. Part of it is the lack of rain—the region, like much of the country, has been afflicted by a climate-change fuelled drought for much of the summer. But Bibeau points to another cause, as well: the Line 3 pipeline.

 

After seven years of protest and legal battle against Line 3, led primarily by Indigenous communities, Enbridge’s Line 3 pipeline is nearing completion. The pipeline, which crosses 200 water bodies, 3,400 wild rice acres, and the headwaters of the Mississippi, will carry 760,000 barrels of oil from Alberta’s tar sands to Superior, Wisconsin. Beyond the contributions to climate change and the potentially disastrous effects of a spill on delicate ecosystems and waterways, the pipeline also poses a threat to wild rice, which requires abundant, clean water in order to grow.

Manoomin is something that’s community. Everyone has eaten it up here, gathered it up here.

Frank Bibeau

In June, the Minnesota Department of Natural Resources issued Enbridge energy a “dewatering” permit for five billion gallons of water. This permit allows the company to temporarily pump groundwater out of the construction path of the pipeline. The water, once removed, is stored and eventually discharged back into the ground. The DNR argues that there would be little impact of the permit on natural resources in the area, but Michael Fairbanks and Alan Roy, tribal chairman and secretary-treasurer of the White Earth Nation, argued otherwise in a letter to the president of the Minnesota Chippewa Tribe. Given the drought, they wrote, “displacing this amount of water will have a direct detrimental impact on the 2021 wild rice crop.” And now, in a new lawsuit against the DNR, the wild rice itself is striking back.

Bibeau has spent years fighting Enbridge in the courts. He’s filed multiple rounds of legal challenges to the pipeline’s permits, arguing that the pipeline violates the treaty rights of the Anishinaabe to hunt, fish, and gather wild rice. But this lawsuit takes a different tack; the new suit filed in White Earth tribal court has wild rice as the defendant. The suit, filed against the Minnesota Department of Natural Resources, argues that the dewatering permit issued by the DNR violates the rights of the wild rice itself. It’s a “romanticized kind of notion,” said Bibeau, “where nature is striking back at those who pretend to be caring for it: the Department of Natural Resources.”

 

How can a plant be a plaintiff to begin with—and what does it mean for a suit to be filed on behalf of wild rice itself?

At the end of 2018, the White Earth Tribe adopted a law granting wild rice legal status reflective of the grain’s central place in Anishinaabe culture. “Manoomin, or wild rice, is considered by the Anishinaabe people to be a gift from the Creator or Great Spirit and continues to be an important staple in the diets of native peoples for generations,” reads the resolution adopting the law, “we recognize to protect manoomin and our people, we must secure its highest protection through the recognition of legal rights.” The law itself states that manoomin has “inherent rights to exist, flourish, regenerate, and evolve.”

 

Though the idea of fundamental rights of nature has existed in Indigenous cultures for millenia, the legal concept of rights to nature is relatively new to western legal systems. In 1972, Christopher Stone penned an essay for the Southern California Law Review, proposing the idea of granting legal standing—the right to sue—to “natural objects”, including forests, rivers, and oceans. “As strange as such a notion may sound,” Stone wrote, “it is neither fanciful nor devoid of operational content. In fact, I do not think it would be a misdescription of recent developments in the law to say that we are already on the verge of assigning such rights.”

Increasingly, the death that occupies each human’s imagination is not his own, but that of the entire life cycle of the planet earth.

Christopher Stone

In western common law, nature is considered property. As such, when a stream is polluted, argues Stone, it is the group with property rights to that water that can sue over impacts of that pollution. “What does not weigh in the balance is the damage to the stream, its fish and turtles and ‘lower’ life,” writes Stone. If the suit is won, the damages are not awarded to the stream itself, but rather the property owner who filed the suit. Recognizing the rights of nature, on the other hand, would recognize the stream as more than just property, but rather an independent entity with legal standing.

 

The ability to establish an environmental ethic is an important part of the power of any sovereign entity, says legal scholar Elizabeth Kronk Warner, dean of the University of Utah’s S.J. Quinney College of Law and citizen of the Sault Ste. Marie Tribe. “The right to nature is a reflection of those environmental ethics and what the tribal sovereign views as important in terms of rights and in terms of the natural world,” said Kronk Warner, “It’s an expression of sovereignty given that it’s an expression of the environmental ethic.”

 

Today, the wild rice lawsuit is the first rights of nature case of its kind to ever be filed in tribal court, and only the second to be filed in the U.S. itself. Kronk Warner says that it’s not the last; these kinds of rights of nature legal challenges are “just going to grow,” she anticipates.

 

The Minnesota DNR has filed an injunction in District Court, arguing that White Earth does not have jurisdiction over the suit—a federal judge dismissed the injunction, but the DNR has already filed an appeal. Bibeau says he suspects the DNR feels they won’t be able to prevail in tribal court. “Welcome to the club! That’s how it is for us in state court all the time,”  said Bibeau. “We’re using our sovereignty to protect our resources, our manoomin, our people.”

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