Wild rice versus a pipeline? Yes, really

This story was originally published by Mother Jones and appears here as part of the Climate Desk collaboration.

In 2018, Frank Bibeau, a member of and attorney for the White Earth band of Anishinaabe — the largest of the six federally recognized Indigenous reservations that make up the Minnesota Chippewa Tribe — had an idea.

By that point, for the better part of a decade, Bibeau had been part of organizing efforts to stop the construction of Line 3. A pipeline set to transport tar-sands crude oil from Alberta, Canada, across 330 miles of northern Minnesota to Superior, Wis., Line 3 was planned as a replacement for an older pipeline. But the new Line 3 would carry double the oil, enough to produce the carbon emissions equivalent to the yearly output of 50 coal power plants. After years of dutifully participating in the state’s regulatory processes around Line 3, Bibeau was coming to realize in 2018 that he’d have to find a new strategy that went above and beyond the usual legal tactics used by environmentalists.

In addition to contributing to global warming, another central criticism raised about Line 3 was that it would perilously cross 200 bodies of water in northern Minnesota. Those wetlands encompass 389 acres of Manoomin — an edible grain that Bibeau learned to harvest as a young man. Known in English as wild rice, it’s a staple of the meals, beverages, medicines, and cultural ceremonies of Anishinaabe people. The threat that Line 3 posed to what is considered a sacred plant — and that Minnesota made the official state grain in 1977 — was indicative of a longer history of promises made to Native people that the state has failed to keep.

History had taught Bibeau that he couldn’t count on the state’s regulatory agencies to be sufficient environmental stewards, so that year, Bibeau drafted a law to be adopted by White Earth that codified Manoomin with “the right to pure water and freshwater habitat; the right to a healthy climate system and a natural environment free from human-caused global warming impacts and emissions.”

Rights-of-nature laws

To give a tree or a river or in this case a plant legal rights is a novel, if not heretical, concept in western legal frameworks. In response to a deepening ecological and climate crisis, in which the regulatory bodies tasked with protecting nature are too often captured by the corporate interests destroying it, the paradigm shift is catching on around the world.

Rights-of-nature laws have been passed everywhere from New Zealand to Pennsylvania to Uganda to Pakistan to Florida. The rights-of-nature movement has proved most consequential, however, in countries with powerful Indigenous social movements. In 2008, Ecuador became the first country to codify rights of nature into their national constitution, followed by Bolivia, which did the same in 2011. As Chile prepares to rewrite its constitution, it is reportedly considering rights-of-nature provisions.

In the final days of 2018, Bibeau’s law passed. A few weeks later, White Earth leadership sent a letter to Minnesota Gov. Tim Walz alerting the newly sworn-in Democrat that they and the 1855 Treaty Authority had given wild rice legal rights, and pressing him on Line 3. (While running for office, Walz tweeted: “Any line that goes through treaty lands is a non-starter for me.”) The end of the letter read: “We look forward to working together to protect our One Minnesota common, environmental resources which all require clean water. Time is of the essence as the United Nations has warned we only have 12 years to curb climate change.”

In retrospect, those final words read like a warning.

Construction of Line 3 began in December 2020, and thousands of people came to different camps along the pipeline route to protest through the year, reaching their height last summer. Hundreds were arrested by state law enforcement (including my mother, who was arrested at a demonstration against Line 3 near Palisade, Minn., last December and spent a night in Aitkin County Jail) and are still facing charges. State and local law enforcement got their overtime pay and other expenses reimbursed by Enbridge. By late summer, Bibeau was ready to try his novel legal manoeuvre.

In August, as the construction on Line 3 was finalized and the oil set to flow, White Earth filed a lawsuit in tribal court against the Minnesota Department of Natural Resources. The lead plaintiff was Manoomin.

“We’ve tried playing their game, we’ve tried playing under their rules and laws, and those things didn’t work,” Bibeau said.

The latest iteration of the fight to stop Line 3 could be the plan Bibeau hatched in 2018: the rights of Manoomin.

‘Our treaty foods are a canary in the coal mine’

Manoomin is inextricable from Anishinaabe history. As told by the Seven Fires Prophecy, Anishinaabe migrated from the Atlantic coast through the Great Lakes to “the land where food grows on water,” or what European settlers later called the land of 10,000 lakes. Every September, ricers canoe through the shallow water to harvest the Manoomin that grows near the shores of the wetlands abundant in the northern half of the state.

In 2018, researchers at the University of Minnesota College of Science and Engineering concluded what Anishinaabe already knew: Manoomin is an “indicator species.” A body of water will be only as healthy as the wild rice growing in it. “Our treaty foods are a canary in the coal mine for the environment,” Bibeau said.

Bibeau is the executive director of the 1855 Treaty Authority, an entity made up of representatives of different Chippewa tribes that oversee the status of treaty rights in the ceded territories. For Bibeau, the potential for legal enforcement of the rights of Manoomin hinges on the unique strength of their treaty rights. Under both the 1837 and 1855 treaties, Chippewa were granted usufructuary rights to hunt, fish, and gather wild rice within the territories they ceded to the United States. Most importantly for this case, those rights extend outside of reservation boundaries because they were established before reservations existed, like White Earth, which was established in 1867.

Bibeau and his co-counsel Joe Plummer’s legal argument goes like this: Anishinaabe have a treaty-protected right to gather wild rice on and off reservation, and the White Earth Anishinaabe have codified wild rice with legal rights. The rights of wild rice beds within treaty-protected territory were violated when the state granted the dewatering permits to Enbridge without the consent of tribal leaders, they argue, and so the permits should be invalidated by the state. If Enbridge is no longer permitted to pump Minnesota water, they’d have no choice but to shut down Line 3.

A recent ruling by the Constitutional Court of Ecuador that invalidated mining permits in the forest preserve Los Cedros shows that in a different legal system, these rights-of-nature laws could have real-world impact. But so far in the United States, rights-of-nature laws have been symbolic gestures that are easily circumvented. The closest thing to a sovereign legal system in the United States is tribal court. Combine that independent jurisdiction with the power of treaty rights — “the supreme law of the land,” according to Article 6 of the United States constitution — and a consequential rights-of-nature ruling in the United States becomes more plausible.

“It’s kind of a perfect storm,” explained Thomas Linzey, an environmental attorney and executive director of the Center for Democratic and Environmental Rights, an organization that works worldwide to draft rights-of-nature laws and who consulted with Bibeau and White Earth on the rights of Manoomin. “Which is why the state has been scrambling to try to contain it. Because if it starts to actually become accepted, then that case has wide-scale implications for other tribes who might use rights of nature laws to extend that protection of natural resources through their treaty rights,” Linzey said.

Pumping of water for Enbridge project

When Bibeau and Linzey first met, Bibeau was new to the rights-of-nature legal movement, and Linzey hadn’t yet recognized the unique leverage that tribal courts could have to implement rights-of-nature laws. “Tom had the right tools,” Bibeau said. “And I showed him how I would use his tools.”

The lawsuit is focused on a Water Appropriation Permit granted by the Department of Natural Resources that authorized Enbridge to pump nearly five billion gallons of water from the ground to help dig the trench for 145 miles of pipeline it had left to build — a process called dewatering. It was 10 times the amount the company originally requested, and White Earth tribal leaders feared it would negatively affect the water quality in the area’s wetlands where Manoomin grows, which were already suffering from a drought.

By granting the Water Appropriation permit, the Department of Natural Resources “has intentionally and knowingly violated the Rights of Manoomin by unilaterally granting 5 billion gallons of water, without official notice to tribes, without Chippewa consent, on and off White Earth Reservation,” the complaint states. The Department of Natural Resources has responded by contesting that White Earth lacks jurisdiction to sue them off-reservation and has attempted to move the case out of tribal court.

On Aug. 12, the DNR filed a motion to dismiss the case from tribal court. They were rejected. They then sued the White Earth Tribal court in a U.S. District Court. The case was dismissed. They then appealed the federal court’s decision to the 8th Circuit Court of Appeals, triggering a mandatory hearing on Dec. 16, 2021, in which Assistant Attorney General Oliver Larson argued that White Earth was attempting to “take a tribal legal code and apply it off-reservation on the theory that their usufructuary rights allow them to do that.”

In a Dec. 21 hearing in White Earth Tribal Court, Assistant Attorney General Colin O’Donovan argued that the Department of Natural Resources had immunity from tribal court, and suggested that White Earth should sue Enbridge instead of Minnesota. O’Donovan’s suggestion gets to the core of the intervention that rights-of-nature laws are trying to make in the existing United States legal system. As Linzey explained it, the current system doesn’t so much protect nature as permit and regulate the destruction of it. That’s why, for Bibeau, the suggestion to file his lawsuit with Enbridge instead of the state defied logic.

“[They say,] ‘Why don’t they sue the pipeline?’ Well, the pipeline just lays there and makes an application to do something. It’s the Department of Natural Resources, the Public Utilities Commission, the Pollution Control Agency that gives them the right to go do something,” Bibeau said. “So why would we go after the pipeline when these are the culprits? They don’t see themselves in the mirror. They think they’re invisible or something.”

Drilling fluid spills

Several recent developments bolster Bibeau’s argument that state regulatory agencies have been insufficient in protecting the state’s water from the environmental harm caused by Line 3. In January 2021, Enbridge workers punctured an aquifer digging the trench for the pipeline, and the Department of Natural Resources didn’t notice until June 2021. Enbridge announced last month, a full year later, that it had stopped the flow of water from the aquifer. Meanwhile, Bibeau and other Line 3 opponents have been tracking what has now been revealed as up to 28 spills of environmentally harmful drilling fluid along the pipeline construction route, called “frac-outs.”

While the history of American jurisprudence may be stacked against him, Bibeau sees reasons for optimism in how his lawsuit has galvanized other Native tribes around the country. He points to an amicus brief filed in support of the lawsuit on behalf of seven other Chippewa bands across Minnesota, Wisconsin, and Michigan, who see Bibeau’s strategy as a way to bolster tribal sovereignty. In fact, on Jan. 6 the Sauk-Suiattle Indian Tribe filed a lawsuit against the city of Seattle in tribal court. The plaintiff was Tsuladxw, or, in English, Salmon, a treaty-protected food the tribe had given legal rights.

“They saw a pathway, and that’s what’s gonna happen for other people: They’re going to see that there’s a path, and it’s in tribal court using tribal law,” Bibeau said. “It’s going to rely more on our primary treaty foods, and the ones that are connected and rely upon waters the most are the ones that are going to be the most important for us to use. Because that’s what we have to safeguard.”

Will Manoomin see its day in court? Bibeau and Linzey see a path. The 8th Circuit Court of Appeals would have to agree to let the case proceed through tribal court, where there can be a trial to determine whether Manoomin’s rights were violated by the effects of the five-billion-gallon dewatering permit. “We’re going to be patient, methodical and we’re going to have a very thorough record created in tribal court, who are more deferential and understanding of our cultural values,” Bibeau said. “I believe we have the right to demand consent, and that the state has to get consent from us. Because our rights are not in common.”