with Frank Bibeau, Thomas Linzey, Samantha Skenandore 

The Rights of Nature movement launched internationally in 2006 and is growing fast. Driven primarily by tribes and citizen-led communities, more than three dozen cities, townships and counties across the U.S. have adopted such laws to create legally enforceable rights for ecosystems to exist, flourish, regenerate and evolve.

In this program, Native American attorneys, Frank Bibeau and Samantha Skenandore, and legal movement leader Thomas Linzey report from the front lines how they are honing their strategies to protect natural systems for future generations.

This is an episode of the Bioneers: Revolution from the Heart of Nature series. Visit the radio and podcast homepage to find out how to hear the program on your local station and how to subscribe to the podcast.

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Transcript

Neil Harvey (Host): When you fight nature, you lose.

That simple truth is coming home to roost with unprecedented frequency, intensity and ubiquity. Today, a sobering morning-after awakening is stirring worldwide. Humanity is getting an environmental education the hard way: What we do to the Earth, we do to ourselves.

But what if, by extension, when you own nature, you lose?

The ground truth is that we don’t own nature – nature owns us. In reality, we are a part of nature – and we’re decidedly a very junior partner in that relationship. We’re also an expendable one, if we don’t abide by nature’s operating instructions.

These are ancient worldviews held closely by Indigenous peoples – the world’s old-growth cultures. It helps explain why First Peoples are now in the vanguard of an authentic legal revolution.

In practical reality, the global Rights of Nature Movement is simply affirming the existential truth that Nature has its ways and will have its way, whether we recognize that or not. Codifying these rights into enforceable law may give us the best chance to protect and restore the web of life on whose wellbeing our own lives depend.

Frank Bibeau (FB): Wild rice, manoomin, has been around my life all my life. Ever since I was a kid, my grandfather always made sure we had wild rice. It was important for my father to make sure we understood how to go out and harvest and things. Wild rice is mentioned in our 1837 treaty. It says that we have the right to hunt, fish, and gather wild rice on the rivers, lakes and lands that we’re relinquishing or ceding, and so that meant all of the same territory, not just the reservation, but all of the same territory that we were relinquishing, we still had the right to hunt, fish and gather.

Host: Frank Bibeau is a tribal attorney and enrolled member of the Minnesota Chippewa tribe in northern Minnesota where tribal waters have been under severe threat including from oil pipelines such as the notorious Line 3. His legal work has focused on the Treaty rights of tribes and members to help protect natural resources for future generations.

Treaties are internationally binding nation-to-nation agreements that the Constitution refers to as, “the supreme law of the land.”

Enter Manoomin, the tribe’s treaty-protected wild rice that grows in the abundant waters under threat.

While working at the 1985 Minnesota Legislative Session, Bibeau met lifelong Indigenous activist Winona LaDuke.

In trying to figure out a novel way to protect the watersheds of the Great Lakes basin, LaDuke and Bibeau realized that the treaty protecting manoomin could also protect the entire ecosystem under tribal law. They went in a new direction – in part because water law is so complex, and in part because corporations were trying to appropriate the wild rice for genetic engineering.

In consultation with attorney Thomas Linzey, they decided to use a Rights of Nature legal framework in tribal court against Minnesota’s Department of Natural Resources, or DNR, to oppose the Line 3 pipeline.

Frank Bibeau spoke at a Bioneers conference…

FB: So in reality by using rights of manoomin, for me, it’s a water protection strategy. Manoomin, wild rice, grows in the water. Water is necessary for all living life, and where we live, because of all the fisheries and the flyways for the water fowl and everything that’s there, it’s very important to have a lot of pristine water.

And as I started looking through some of our treaty journals, interestingly enough, our treaty journals talk about maple – being maple syrup, maple sugar – and fish being our two primary treaty source foods besides wild rice that’s expressly in our treaty. So you’re talking about maybe three of the most high-demand water quality, you know, natural elements in nature that we relied upon as our primary treaty foods. And if it’s a primary treaty food, there is an obligation for us to be able to access that food. That was part of the deal.

Part of the problem is as you’re trying to develop these defenses, you’re in competition with a lot of other attorneys, and those attorneys, they don’t see this very well. It’s new to them. They didn’t learn it in law school. They haven’t practiced with it, and so when I look at rights of nature, I think it displaces things in a way from Indian Country standpoint that the state and the federal and the non-Indians can’t do. And so what we’ve done in Minnesota at White Earth Reservation in particular, we’ve adopted the rights of nature into rights of manoomin, and we’ve used that in tribal court. They didn’t contemplate that Indians were going to be around today, and so they didn’t really pay attention to the laws that they left in place with us.

And so I think treaty rights are—you’re going to see a lot more use in the environment and a lot more use in the legal playing field. It is growing. It is a new approach, and I think you’re going to find that working with tribes is going to make the difference.

Host: This historic case was first brought in a tribal court to enforce the rights of nature, and the first rights of nature case brought to enforce Treaty guarantees.

Samantha Skenandore is an enrolled citizen of the Ho-Chunk Nation in Wisconsin, and an attorney of counsel at Quarles & Brady.

In 2018, the General Council – the “fourth” branch of government represented by the “People” of the Ho Chunk Nation – voted overwhelmingly to amend its tribal constitution to broadly enshrine the Rights of Nature. The Ho-Chunk – a word which means “People of the Big Voice” – was the first tribal nation in the U.S. to take this landmark leap.

The proposed amendment to the Nation’s Constitution established this:

“Ecosystems, natural communities, and species within the Ho-Chunk Nation territory possess inherent, fundamental, and inalienable rights to naturally exist, flourish, regenerate, and evolve.”

The Amendment further prohibits fracking, fossil fuel extraction, and genetic engineering as violations of the Rights of Nature.

Procedurally, the proposed Rights of Nature amendment was the first bold step in an ongoing process to become tribal law.

The voice of the People of the Big Voice was clear – Rights of Nature should be recognized in the highest law of the land.

But where and how could tribal sovereignty and political status be deployed to draft and pass the right type of laws for that jurisdiction? In collaboration with the Rights of Nature project of the Indigeneity Program, Samantha Skenandore entered into a complex process: to assess a crazy quilt of legal entanglements in order to develop a blueprint for action for other tribes – a legal toolkit.

One top goal for any such law is to be genuinely enforceable. Another goal is that these laws would apply to other jurisdictions, including state and local governments in order to effect change both upstream and downstream from tribal lands.

Samantha Skenandore…

Samantha Skenandore (SS): What’s the lay of the land? Where have tribes passed these Rights of Nature laws? Where have they fallen short? Where have they just been symbolic? What are ways maybe that we should look at to help tribes with a toolkit to look at this opportunity for them to kind of flex their sovereignty muscle and see if they can perhaps advance this new area of what I think in American jurisprudence would call environmental law, so 2.0, of having a whole new viewscape on how we see our resources around us.

We have more precedents, we have more information from Frank and Thom’s cases now that we know what to do, what not to do, and how to do things better.

We have sliced and diced all of the case work from water law, other environmental law, international law, and we’ve looked at things from all angles to say we have tried to think of everything, and we have organized a toolkit that says, alright, if you’re a tribe that is Indian Reorganization Act Tribe, when you’re recognized as a federal tribe, a federal entity, a federal government, how your constitution structured you, how you function as a government, does that make it better for you to pass a Rights of Nature law, or are you from Frank’s neck of the woods; do you have treaty rights. Right? Is there a special rule, rights, privileges that you might have that might allow you to pass a Rights of Nature law that would fit and be better upheld under those circumstances?

And then we looked at some of the newer constitutions, some very modern forms of tribal governance, and then we looked at all of the case law, right, and we identified all of the challenges. So any attorney, it’s basically a blueprint to say here’s all the things you’re going to face and you’re going to need to discuss with your client to say, hey tribe A, I think we can pass a Rights of Nature law. We checked most of the boxes here. These are the three or four big issues that we’re going to have to tackle, and I’m going to be your counsel. I’m going to help you work through those three or four things, and then advise you accordingly to US tribal counsel to pass this law or that law, or do whatever you choose to do.

So that’s really how we get tribes in a position to consider doing this. And that’s really been my role with Rights of Nature is to create that blueprint and also to take that feedback we’re hearing from the tribal leaders, from their council, their community members, and we’ve even talked to local and state DNR, so non-native allies that say, hey, we’ve been waiting for tribes to do this for some time, what can we do to help.

And so part of the strategic vision and plan will have to be so inclusive to bring that to the table to tribal governments so that they really can do this.

Host: Realistically, although tribes can have a seismic legal impact, Rights of Nature governance, by definition, requires multi-stakeholder coalitions. It’s necessary to weave together diverse bodies of law and jurisdictions in a specific place or region. In many cases, it requires that tribes work with municipal and state agencies, as well as with allied communities and citizens, which is generally where it all starts.

Attorney Thomas Linzey developed the world’s first Rights of Nature laws in 2006 working with conservative communities in Western Pennsylvania to face down unwelcome corporate harms such as factory farming and quarries. He is the Senior US Counsel at the Center for Democratic and Environmental Rights, which he co-founded with attorney Mari Margil in 2019 to advance democratic rights and rights for nature worldwide.

Thomas Linzey (TL): Rights of nature work is not a spectator sport. It can happen anywhere. It can happen in any community. Any community has elected local officials who can pass Rights of Nature laws, but in the US, about half of the states have ballot initiative processes so that you can write Rights of Nature laws yourselves at the local level and then put it on the ballot and campaign for it and pass it, and then begin to enforce it. Sometimes I think sometimes rights of nature feels like it’s 30,000 feet in the air; it’s way up here and it’s something for the lawyers to talk about. It’s not. The lawyers are only relevant if there are people in the community who are moving forward to protect a particular ecosystem with this new approach. And, again, I think without this new approach, we’re kind of screwed in a variety of different ways because you’re relegated back to industry-written environmental regulations which keep you running around like a hamster through a wheel, endlessly exhausting your resources and energy until you eventually disband yourself as a community organization.

So wherever you are, it can be done. It’s possible. And I think safeguarding major ecosystems this way is the next really major paradigm shifting evolution of the law in the US, but it’s being done by communities and by tribes. Those are the folks on the frontlines.

Host: When we return, how tribes are building environmental law 2.0, and how the shift to a rights of nature legal paradigm is challenging the very concepts of ownership and property that underlie Western law.

I’m Neil Harvey. You’re listening to The Bioneers.

Host: After first arising in 2006, by 2022 the Rights of Nature movement had become the fastest growing environmental movement in history.

Driven primarily by citizen-led communities and tribes, more than three dozen cities, townships and counties across the U.S. have adopted such laws and created legally enforceable rights of waterways and other ecosystems.

In parallel, by 2022, six tribes in the US had voted on diverse iterations of rights of nature resolutions, while numerous other tribes were preparing for similar actions.

But, says Samantha Skenandore, each tribe comprises its own community with a unique history, culture and governance structure. She looks to the Ho-Chunk nation’s traditional court on customizing Rights of Nature law. She served as legal counsel on matters before the tribe’s clan leaders and elders, who hold the Traditional Ecological Knowledge of their place going back countless generations, including their cosmology and first principles.

In her own role protecting cultural resources and sacred sites, this precious ancient knowledge provided a road map for how her people had successfully sustained themselves in regenerative ecological cycles over the long haul. It revealed the basis for how to begin to construct culturally appropriate Rights of Nature governance.

SS: Nature, all nature, right, not any subspecies, not any group, subgroup, all of nature was to be included in our constitution and be afforded the bill of rights just like we, us human beings, have within our tribal constitution. So if we passed a law over here to save the salmon or on a very extreme version of rights of nature, we’re protecting all nature and giving it a bill of rights like personhood, that’s the strongest way we can protect nature. And that’s what passed with over, I believe, 1200 votes, 1200 human beings in a room, tribal members, passed that law. So it was beautiful. I mean…[APPLAUSE]

And it was great to be in the room. We all stopped and took a picture. We put a banner out. But we are very proud of that law. But that’s only phase one. We have to go back and that law has to be taken to the legislature. It goes through a process with the feds, and then it becomes law. Right? And then we have to have these cases in tribal court. We have to litigate them. So we are not quite there yet, but that’s really my contribution to say, you know, I’ve been a part of this since before it was passed, and it’s in the process, watch what happens for this tribe as they move that law forward.

Host: This kind of Indigenous leadership is global, such as in Ecuador which became the first country to put Rights of Nature into its federal constitution. Similarly, Indigenous leadership was paramount in Bolivia, New Zealand, India and Uganda in passing laws that protect everything from a river to glaciers and savanna.

Nor is the Rights of Nature movement boxed into the left-right political dichotomy. Witness Orange County, Florida, the thirtieth-largest county in the US and home to Orlando and Disneyworld – not exactly a progressive bastion.

In 2020, Orange County’s 1.4 million citizens became the largest US municipality to adopt a rights of nature law. It recognizes the rights of rivers and streams, and a right to clean water for the residents.

Known as the “Right to Clean Water Initiative,” it empowers any resident to enforce the rights of waterways and the rights of people to clean water. Thomas Linzey and Mari Margil worked with the community coalition to get the Rights of Nature initiative on the ballot.

TL: So at any one time in the U.S., about a dozen efforts are underway in rights of nature work. Perhaps the most exciting stuff that I see today in the office are Florida, of all places. Orange County, Florida became the largest municipality in the United States to pass a Rights of Nature law back in November of 2020, initially to protect the Wekiva and Econlockhatchee Rivers with certain rights. That was broadened out to give all waterways, all waters within Orange County certain rights. The ballot initiative passed in November with 89% of the vote.

So folks that work on ballot initiatives know that you’re lucky to get 51% of the vote most times, let alone 89% of the vote—And so Floridians argue and differ on every other issue apparently other than protecting the water there, which is under crisis. And in Orange County you had Trump supporters who had “Vote Yes” on the initiative in their windows, with posters and signs. And so it was an interesting mix of these kind of different political ends to come together for this water protection law.

Host: Another initiative is led by the Sauk-Suiattle Tribe which has sued the city of Seattle on behalf of the rights of salmon against dams impeding their migration up the Skagit River.

The lower courts had previously found that numerous road culverts blocked salmon access to habitat to an extent that violated treaty rights and necessitated the culverts’ removal. The Supreme Court affirmed that decision.

Once again, says Frank Bibeau, treaty rights can be decisive as the law of the land…

FB: They estimated it might cost something like two to three billion dollars to remove all of those culverts and change them so that they’re passable for the fish, which to me is interesting because it costs two to three billion dollars to build the pipeline that we’re fighting, and we haven’t even started on the problems that it’s creating. That’s just building the pipeline. So when you try to figure out these value systems, it’s a little odd.

But the thing that I like about the rights of salmon, and this is just for me simply, the rights of manoomin I think is important because wild rice is in the treaty itself. That’s the supreme law of the land under the Constitution of the United States. And so I think that’s going to help us in that way with our litigation. But if we didn’t have wild rice written into our treaty, you know, we’re people of the river, we’re people of the canoe, the woods, we would be doing fish, and that’s what the salmon is.

And so what I tell people is, you know, a lot of people haven’t even heard of wild rice. And so if I’m trying to describe wild rice as essentially what might look like a grain crop in a field across the water, people can be standing beside it and not know it; people can have it on their plate and not know it. So it’s not really the model in my mind. But the fish is the model, because everybody knows what a fish looks like. Everybody knows what a dead fish looks like, and if you see a thousand dead fish, you know there’s something wrong with the water. You don’t have to have a scientist come up and tell you that. And so that gives you, I think, a big leap in terms of what your barometer is in the environment and what’s going on with the water, because we look at protecting the water where I live, and we believe if we can protect the water, then we’re protecting almost everything else.

And so it’s very interesting how the different cultures look at their relationship with maybe what we might call the most significant part of our culture and what we would want to guard and protect for our future generations as much as for ourselves now.

And I think that’s what’s going to make it work also better for us as tribal members because it is spirituality. It is freedom of religion. You know, they only passed the Indian Religious Freedom Act back in 1978, otherwise we were being prevented from practicing it and doing these things. So we have a lot of things that are helping us right now that’ll help everybody else.

Host: For Frank Bibeau as for many Indigenous Peoples, the natural world is a gift from the Creator, not property to be owned. Yet paradoxically, tribes must use property law to defend their lands while transforming Western systems of law.

Thomas Linzey points out that Rights of Nature laws are evidence that a cultural sea change is roiling society. Despite long odds, he says, Indigenous value systems are starting to displace Western systems of law that are anchored in the Constitutional exaltation of private property and hyper-individualism.

So… if we don’t own nature, and nature owns us, what could that mean for the future of our systems of law?

Thomas Linzey and Samantha Skenandore say we’re living through a radical paradigm shift – a ‘tween time into uncharted legal territory. And of course, nature bats last…

TL: I think what’s starting to happen now is people are thinking beyond rights of nature in some ways, that rights of nature is really a platform to have these other conversations. But what does it look like, for example, when we get rid of private ownership of ecosystems? What does it mean for a forest to own itself, for example? What does it mean to get rid of this concept of a deed

And we don’t pretend to have all the answers, but we have a couple projects going that are going to talk about and create legal instruments and structures for that to happen, because after all private ownership of ecosystems is kind of all made up. You know? The English came over, they chopped up the indigenous land, put it into numbered parcels, and then we all kind of have bought numbered parcels over the years, but it’s all artificial. It’s not according to any bioregions, it’s not according to any ecosystems, it’s just lines drawn that somebody said you can now own this and have dominion over it.

So the question is from perhaps a more radical standpoint is how do we begin to unravel that. And I think rights of nature is a start because you begin to take a couple of those bundles, those sticks out of the bundle of rights when you talk about nature having rights, but in addition when you talk getting rid of private ownership, what does it look for a guardianship model to emerge that actually has legal standing, not just something we talk about. But what happens if a forest—ownership of a forest is able to return to the forest itself? And that’s an exciting new concept, I think, that is being wrapped in to some of the Rights of Nature work that is being done today.

SS: If we’re actually looking for the paradigm shift in the law, the cultural shift, so that those laws in Indian jurisdictions, splattered from East Coast to West Coast, really take off, not just within the United States, but internationally. Right? We need our brothers and sisters north and south of us and east and west of us to also play into this value shift to really make it meaningful.

Because the alternative is the rights of nature will come after you one way or another, right? [LAUGHTER] We can’t sit here and not say there’s a doomsday coming because that’s why you’re all interested. Right? There’s a doomsday coming where we run out of things, or we’ve poisoned things, and where our own well-being is absolutely threatened, because the rights of nature will come for you. And they have.

I mean, we talked about earlier, we’ve talked about flooding, we’ve talked about global warming, global impact. If we don’t shift and have this shift from property to pro-value of nature, rights of nature, it’s going to happen anyway. So whether we get in front of the problem and do it this way, and how we do it strategically is probably, for me, the most important.

And right now, Frank is absolutely right, we have to save property. We have to go with—Tribes have our property. We’re done letting it go to crap. We’re done letting you—permitting activities that there are not resources to permit. And we’re done doing that game. Right? And so there’s a whole strategy behind going from that property concept and that game into the rights of nature game, and that’s really the shift we’re talking about here for Rights of Nature law.

Host: Samantha Skenandore, Thomas Linzey and Frank Bibeau. “Legalizing Nature’s Rights: How Tribal Nations are Leading the Fastest Growing Environmental Movement in History”.