Wild Rice Sues a U.S. State Agency: Upholding the Rights of Nature in the Fight over the Line 3 Pipeline

Ella Johnson

This post explains the legal basis on which the Manoomin et al. v. Minnesota DNR lawsuit was brought and why it has the potential to be a landmark case within the rights of nature movement.

Stories are sources of law in Ojibwe traditions and so, pluralistic from the beginning, Manoomin v. DNR begins with a story. One thousand years ago, when the Ojibwe lived on the Atlantic coast, the Seven Fires prophecy was foretold.[1] It said that a foreign people would come in great boats and wipe out the Ojibwe if they did not migrate inland. They would know to stop their migration when they came to the place where food grew upon the water. The Ojibwe travelled inland until they met the Great Lakes, settling at seven different points (the Seven Fires) along their shores. The people who are now the Chippewas of the Mississippi travelled all the way to Lake Superior’s western shore. There, they found a flat land full of shallow lakes carved by glaciers thousands of years before. In those lakes was manoomin (wild rice), the food that grows upon the water. Wild rice became sacred, a gift from the creator.[2]

The White Earth Band of Ojibwe filed a complaint last August in White Earth’s Tribal Court with manoomin as the lead plaintiff, seeking the nullification of a permit issued by the Minnesota Department of Natural Resources.[3] It is the first time a plant has been a plaintiff in tribal court.[4] In the complaint, the Band alleges the Minnesota DNR violated manoomin’s right to clean water by granting Enbridge Energy a 5 billion gallon increase of water usage rights in their permit to build the controversial Line 3 oil pipeline.[5] The White Earth Band also requested, as remedy, declarations of legal rights for both manoomin and the Band which would provide greater legal protection to both going forward.[6]

In both the U.S. and Canada, the Ojibwe are increasingly asserting their rights by bringing legal actions grounded in treaty rights, traditional law, and tribal law.[7] This new lawsuit seeks to enforce a tribal statute which establishes manoomin’s own “inherent rights to exist, flourish, regenerate, and evolve” and the Band’s rights to use manoomin and protect those rights—both on and off the reservation. The Band supports their claim with the U.S. Supreme Court’s 1999 decision Minnesota v. Mille Lacs, which mandated the liberal interpretation of treaty rights.[8] However, as this case seeks enforcement against off-reservation activity it represents a significant test for both treaty rights and the rights of nature.[9]

The rights of nature movement legalizes rights for nature to strengthen environmental protections.[10] This has been done in places including Ecuador, New Zealand, Quebec, and Toledo, Ohio, with mixed results.[11] In New Zealand, legal rights based in Indigenous legal doctrine and treaty law were codified for the Whanganui River after negotiations between Indigenous and settler governments. The Māori argued their understanding of their treaty rights in relation to the river at the time of signing were not properly understood or recognized in subsequent New Zealand law. New Zealand’s new statute was thus a recognition of what had always been true for the Māori, that they were in an interrelation of stewardship with the Whanganui. It enabled them to protect the river, establishing a team of guardians to ensure the enforcement of newly granted legal rights.[12] A similar legal framework established rights, legal personhood, and guardians for the Magpie River in Quebec. After consultations between Indigenous peoples and settler government, the Innu Council of Ekuanitshit and regional municipality of Minganie issued joint resolutions affirming those rights.[13] Despite these successes for the rights of nature movement, both the Magpie’s personhood and the legal mechanisms designed to protect the Whanganui are yet to be argued in court.[14]

Like the Indigenous peoples who secured rights for the Whanganui and Magpie rivers, the White Earth Band have collaborated with settler governments to protect manoomin. They created their “rights of manoomin” statute within the U.S. legal framework.[15] The Band has also been in continuing negotiations with the Minnesota government to protect wild rice for over a decade. These talks stemmed from another threat to manoomin, sulfate pollution, which is largely the result of Minnesota’s decades-long failure to enforce its own laws.[16] Additionally, the Band has negotiated with the government over the Line 3 pipeline for several years.[17] In the end, the Ojibwe brought their Tribal Court complaint in response to a lack of proper consultation prior to the amendment of Enbridge’s permit.[18] A victory in Manoomin et al. v. Minnesota DNR would make the case an example of legal recourse for nature in its own right, and thus a landmark within the broader rights of nature movement.

As the Seven Fires prophecy foretold, the foreign people did come, and the Ojibwe suffered greatly.[19] Their existence and that of wild rice remains under threat. The success of this case is uncertain; however, it has already cleared its first hurdle.[20] If it succeeds, it could set a new precedent in the United States: one where Indigenous recognition of nature’s rights is respected. Though that precedent would be limited in its binding nature outside of the Chippewa Nation’s tribal courts, it could provide persuasive authority and a strategic roadmap for other Indigenous peoples seeking to protect the rights of nature.[21]

[1] See Manoomin et al v Minnesota DNR, (2021) White Earth Band of Ojibwe in Tribal Court (Complaint of the Plaintiff at 2–3) [Manoomin].

[2] See “Prophecy of the Seven Fires”, online: Pleasant Point Tribal Government <www.wabanaki.com/wabanaki_new/Seven_Fires_Prophecy.html>.

[3] See Manoomin, supra note 1 at 26, 46; Sebastien Malo, “Minnesota hit with novel ‘natural right’ tribal lawsuit over Line 3”, Reuters (7 August 2021), online: < https://www.reuters.com/legal/litigation/minnesota-hit-with-novel-natural-right-tribal-lawsuit-over-line-3-2021-08-06/> [Malo, “Line 3”].

[4] See Malo, “Line 3”, supra note 3.

[5] See Manoomin, supra note 1 at 12, 21–23, 35.

[6] Ibid at 11–14, 45–46.

[7] See Associated Press, “Judge Declines to Issue a Ruling in Ojibwe Wolf Case” (30 October 2021), online: U.S. News & World Report <www.usnews.com/news/best-states/wisconsin/articles/2021-10-30/judge-declines-to-issue-a-ruling-in-ojibwe-wolf-case>; Darcy Lindberg, “Historical lawsuit affirms Indigenous laws on par with Canada’s” (15 January 2019), online: The Conservation <theconversation.com/historical-lawsuit-affirms-indigenous-laws-on-par-with-canadas-109711>; “Law suit initiated on behalf of Minegoziibe Anishinabe and Wuskwi Sipikh First Nations” (25 February 2022), online: Legal Aid Manitoba <www.legalaid.mb.ca/law-suit-initiated-on-behalf-of-minegoziibe-anishinabe-and-wuskwi-sipihk-first-nations-les-premieres-nations-de-minegoziibe-anishinabe-et-wuskwi-sipihk-intentent-une-action/>.

[8] See US, Res 2018-05, Resolution Establishing Rights of Manoomin, 1855 Treaty Authority, Minn, 2018, at 3 (enacted); Minnesota v Mille Lacs Band of Chippewa Indians, (97-1337) 526 U.S. 172 (1999); Manoomin, supra note 1 at 24, 41, 43.

[9] See Manoomin, supra note 1 at 15, 25, 44.

[10] See Tiffany Challe, “The Rights of Nature – Can an Ecosystem Bear Legal Rights?” (22 April 2021), online (blog): State of the Planet <news.climate.columbia.edu/2021/04/22/rights-of-nature-lawsuits/>.

[11] For Ecuador, see María Valeria Berros, “The Constitution of the Republic of Ecuador: Pachamama has Rights” Arcadia (2015), online: Environment and Society Portal, Rachel Carson Center for the Environment <www.environmentandsociety.org/arcadia/constitution-republic-ecuador-pachamama-has-rights>; in New Zealand, see Jeremy Lurgio, “Saving the Whanganui: Can Personhood Rescue a River?” (29 November 2019) online: The Guardian <www.theguardian.com/world/2019/nov/30/saving-the-whanganui-can-personhood-rescue-a-river>; for Quebec, see “First River to Have Recognized Rights in Canada”, (6 April 2021), online (blog): Earth Law Center <www.earthlawcenter.org/blog-entries/2021/4/the-magpie-riverfirst-river-granted-rights-in-canada>.

[12] See Abigail Hutchison, “The Whanganui River as a Legal Person” (2014) 39:3 Alternative LJ at 179–82; Lurgio, supra note 11.

[13] See Amanda McAleer, “Quebec’s Magpie River Is Now A Legal Person” (15 July 2021), online (blog): Canadian Environmental Law Association <cela.ca/blog-quebecs-magpie-river-is-now-a-legal-person/#:~:text=After%20a%20decade%2Dlong%20effort,a%20first%20in%20Canadian%20history>.

[14] Ibid; Ashley Westerman, “Should Rivers Have Same Legal Rights As Humans? A Growing Number Of Voices Say Yes” (3 August 2019), online: National Public Radio <www.npr.org/2019/08/03/740604142/should-rivers-have-same-legal-rights-as-humans-a-growing-number-of-voices-say-ye>.

[15] See, “First Rights of Nature Enforcement Case Filed in Tribal Court to Enforce Treaty Guarantees” (4 August 2021), online: Stop Line 3 <www.stopline3.org/news/manoominvdnr>; Geneva EB Thompson, “Codifying the Rights of Nature: The Growing Indigenous Movement” (2020) 59:2 Judges J 12 at 13–14.

[16] See “Wild Rice & Sulfate Overview” (accessed 30 March 2022), online: WaterLegacy <waterlegacy.org/wild-rice-and-sulfate-pollution/#:~:text=What%20is%20Minnesota's%20wild%20rice,mgL)%20in%20wild%20rice%20waters>.

[17] See Mary Annette Pember, “Enbridge Line 3 divides Indigenous lands, people” (19 February 2021), online: Indian Country Today <www.mprnews.org/story/2021/02/24/enbridge-line-3-divides-indigenous-lands-people>.

[18] See Manoomin, supra 1 at 36–39.

[19] See Seven Fires, supra note 2.

[20] See Sebastien Malo, “Minn. appeals tribal court’s greenlight on ‘wild rice’ lawsuit re Line 3” (14 September 2021), online: Reuters <www.reuters.com/legal/litigation/minn-appeals-tribal-courts-greenlight-wild-rice-lawsuit-re-line-3-2021-09-14/>.

[21] See Manoomin, supra note 1; Kelly Kunsch, “A Legal Practitioner’s Guide to Indian and Tribal Law Research” (2014) 5:1 American Indian LJ 101 at 133–134.

Ella Johnson is a first-year law student at McGill with a B.S. in Ecology, Evolution and Behavior from the University of Minnesota. She is interested in environmental and human rights law and has written about these and other topics as an intern at Earth Law Center and MN350 and before that, as a reporter at the Minnesota Daily. She would like to thank Jasen Erbeznik who provided numerous edits to guide the many issues raised by this case into a cohesive story. She is also grateful to Catherine Dunne and Ashley Light, editors on the journal Rooted, for generously providing feedback and guidance on the post.