S1, Ep1 | Manoomin v Minnesota

Opponents of Enbridge energies, line three oil pipeline that's being replaced across Northern Minnesota are taking a unique legal approach to try to halt construction. Dozens of people have been arrested for protesting the project that includes one known Ella duke of indigenous climate justice organization.

Honor the earth and member of the white earth band of Ojibwe in Minnesota. You have women like myself. I'm a. You know, and we're standing out there. I have six charges against me for this pipeline, and there's a bunch of us that are facing charges for, you know, trying to be a water protector. You might've heard over the past couple of years about the fight against the line three pipeline in Minnesota folks, we're calling it the next standing rock.

And even in the midst of a global pandemic, it drew water protectors from all over the country. Winona LaDuke is a long time indigenous rights activist, and was one of the leaders of that resistance. What is line three? A lot of people want to know, and a lot of people don't know. So think of it this way.

There are six really old pipelines that they put through in Northern Minnesota. Shipping diluted tar sands from Alberta to superior Wisconsin. And one of those lines is called line three. It has according to Embridge about a 900 structural anomalies. Structural anomalies or things like small little pinhole leaks, maybe come some cracks.

And some of those ended up to be big problems like that. Kalamazoo spill fixing these problems is very expensive. So Embridge wants to abandon the pipeline, walk away and build a brand new one in a brand new corridor. Embridge calls this a replacement project. They're replacing line three. They are not replacing nine through.

They are putting in a whole new corridor and doubling the size of it. That's not a replacement. That's a brand new line.

[00:01:53] Amy Westervelt: Despite all the resistance to line 3 the new pipeline was built. They finished construction at the end of 2021, but the fight isn't over just yet. There's one more legal battle.

[00:02:07] Minnesota news archival: The unique case names, wild rice, which is sacred in Ojibwe culture as the lead. plaintiff In fact, according to attorney Frank Bibeau the tribe was preparing to fight this battle years ago.

[00:02:20] Frank Bibeau: So Enbridge was trying to do Sandpiper pipeline through here on the same corridor

[00:02:25] Amy Westervelt: Enbridge is the Canadian pipeline company responsible for line 3 in Minnesota.

[00:02:30] Frank Bibeau: When they found out from the Minnesota court of appeals, that they had to do an environmental impact statement, they said, forget it. They took their money and invested in DAPL

[00:02:39] Amy Westervelt: DAPL is the Dakota access pipeline in North Dakota. It's the pipeline that was at the center of the standing rock protests in 2016 and 2017.

[00:02:49] Frank Bibeau: And within a month they were running bulldozers over all the water protectors. So we knew at that point, that's what we were going to get here too. Cause they were still running the line 3 program.

[00:02:59] Amy Westervelt: They started preparing for a fight and in 2018 made a key change to an 1855 treaty. That's the treaty that still today governs the relationship between Ojibwe tribes and the U S government.

They added the rights of wild rice or manoomin in the Ojibwe language to that treaty. According to Bibeau the change, just formalized something that had actually been in all of the treaties between the Ojibwe and the U S all along,

[00:03:31] Frank Bibeau: really our jurisdiction lies over. a broad area For hunting, fishing and gathering So those words appear in the treaty wild rice.

We see ourselves as connected to wild rice as connected to all the animals in that we belong to nature. Nature doesn't belong to us. And so, yeah, they are a person in that sense, they're are equal. And so because of the way wild rice has protected us and made us stronger and you know have our territories and continue on, we have a covenant and an obligation to protect wild.

rice

[00:04:03] Frank Bibeau: And so that's what that law's really about it. It's protecting wild rice means you're protecting the environment because wild rice is an indicator species. And so if it's not doing great, Then everything else isn't doing very good

[00:04:21] Amy Westervelt: rights of manoomin is an example of something called rights of nature. It's a legal concept that lawyers often talk about as a way to bring indigenous approaches into the Western legal system.

I think that rights of nature can actually be protective of existing beings like river systems or wild rice or something that.

Under attack from industry or displacement or removal or, you know, all the, all the colonial patterns that have been going on for centuries. That's a Jibo lawyer, Tara Houska. She's a member of the bear clan of coaching first nation. And she's been one of the leaders of the resistance against line three.

Today. She's eagerly watching the last legal challenge to the pipeline. A suit brought on behalf of the wild rice against the state of Minnesota.

The idea behind rights of nature is that nature trees and rivers and swamps and wild rice could have rights and therefore legal standing. And if nature has rights, then humans can help to protect and defend those rights. On the surface. This strategy might seem like a radical idea, but it's been around for decades actually.

And in recent years, it's begun to have a real impact. On how a lot of people understand nature and our relationship to it, not just culturally, but in powerful, legal ways to

I'm Amy Westerveldt. And I've been reporting on a whole bunch of climate lawsuits over the past decade, and especially in the last five. I wanted to make a podcast documenting those cases because to me, lawsuits, aren't about formal arguments in a courtroom or dry legalees or even giant binders full of documents.

They're dramatic stories, a lot has to happen before someone goes to the trouble of filing a lawsuit. It's often the last resort in a search for justice, which is exactly what it feels like on the climate front. In the face of unchecked greed and the total absence of political leadership communities all over the world are turning to the courts to do what they're supposed to do.

Right. Wrongs.

This is a podcast about justice and the people who are seeking it on behalf of people and planet. Welcome to damages in season one, the forest for the trees, we're taking a look at rights of me. Future seasons we'll get into all kinds of areas from fraud cases in the U S against the big oil companies to constitutional cases in other countries, including Ecuador, Guyana, and Australia today, the epic saga of an unlikely plaintiff Wilde, Bryce, stay with us.

so, you know, our, our linguistics stock extends far south and to the, the what's now called the United States up to Hudson bay. And as far as the Saskatchewan planes in the, we were all given instructions on our migration. Back here, uh, that we were going to find out where we are meant to be where the food grew on water.

This is Dale green, a member of the leech lake band of Ojibwe in Minnesota. He met with me and one of our reporters, Karen Savage, on a cold November date in Duluth to tell us more about wild rice Mahnomen. He fiddled with this bag of dried brown stuff in his hands for more than an hour. I didn't know what it was.

And I hadn't actually seen wild rice before. So I wondered if maybe he'd brought something to show us. Uh, no, you know, you see me fiddling with this plastic bag. Uh, this, this isn't some illegal substance or anything like that. Uh, this, this is tobacco in Ojibwe and it's called the same. Uh, and, uh, you know, if you've ever been around Indian peoples specifically, uh, on a

Anishinaabi is the Ojibwe word for the tribes. So you'll hear them referred to as Chippewa a jib way and initial NABI kind of interchangeably, depending on who's speaking. And in which context. Just about everything we do. Um, we'll put out tobacco and ask, uh, you know, where the spirits help, um, on doing it, whether it's taking fish from a lake, whether it's harvesting, uh, maple sugar, whether it's harvesting berries, whether it's taking seater, uh, off the trees for purposes, we would offer the same or to that live.

Dean. I will ask to put everything in the proper order. On the spiritual side.

green told us that he hoped his stories, the Ojibwe migration and creation stories, his own family story had landed with us in a spiritual sense. That's my hope today, too. For some listeners, the idea of wild rice having rights might be really hard to grasp, but I invite you to sit back, let go of whatever comes to mind.

When you hear that wild rice soup, the state of Minnesota. To this story.

Now, when we were placed here, um, you know, our, our, uh, ancient teachings say that, uh, we were like a whisper smoke. You know, there was the spirit essence that, that looked like, uh, uh, oh, We're suppose smoke. This is deal green again, telling the creation story. Uh, and, and the way the old man described it to me, he said, it's like a hot day and you get a down, pouring a rain and, and on, on the pavement and you watch these spirals of, of, uh, of the evaporation of the water.

He says, that's how our essence is described. And, uh, you know, some people. And this day talk about there's, uh, a bright light and all of us. That's our spiritual essence that comes from the universe. Green interrupted this story with an important point there's stories. Teachings that I take to heart, uh, because they they've been told to me over and over, uh, so I would understand them and I would be able to share them, uh, because prior to 1978, uh, you know, a lot of these pro-social teachings or underground.

For about a century, the U S government forcibly separated native families. First sending kids to boarding schools far away from their tribes. And then through the Indian adoption project, removing them from their homes and tribes and placing them with white Christian families. During that time, thousands of acres of rice beds were also destroyed by the government so that they could construct damn.

The same thing happened in Canada, giving indigenous people even more reason to want to protect Mahnomen today, despite everything that was done to disrupt tribal traditions and knowledge. These important stories were passed down from generation to generation, understanding that our creation story we're spiritual beings or without our mortals.

We're out or we're thoughts, substance and our creation story. You say that we were placed here by gets you monitored to the great mystery. Some people say, oh God, the great spirit to monitor do in the Ojibwe language sent down these incorporeal beings, supernatural beings. And, uh, they were instructed by the great mystery to help you on a Chanel B exist here and in the creation story they've already created.

so I was taught that these supernatural beings went around to the animals and a petition them to give up their substance to give us substance and substance. Uh, they went to the two leg. It's the four leg. It's the fish, um, from a normal. Birchbark trees, the maple sugar trees, the berries, uh, the plant, everything that has a living spirit, what the covenant is, is that poor ever remembering what they're giving us, which is part of their life, uh, or hopefully, uh, you know, my body's falling.

500 years. Someone's going to say this guy is full of my nomad. Um, so it's a different world concept, but I was just seeing an article somewhere where, where the dominant culture sees resources as something to be utilized and becoming a commodity, the things that they did their best. Uh, to weaken in that influence from those that came before us to today.

Um, you know, we're part of that creation. Um, we're, we're part of that, that thing that gives us some, something had to give us substance, something has to give us substance and the agreement was we would agreement and. I can look at water and see a spirit there. I can look at a Rocky hillside and see us spirit there.

Right? Oh, there, there's probably a spirit right in this room with us because we're talking about a living thing.

So into this world concept, which sees nature as a relative something we're part of not just a resource for humans to use let's place water and the rice that grows on it. Wild rice maneuver. It grows in large green stocks, only on these Northern lakes every year in late August, Dubai harvesters hit the lakes in canoes, carrying knockers.

These traditional harvesting sticks that are used to gently knock the stocks, sending wild rice, falling into the belly of the. The race is roasted and dried or bagged at a sold for the rest to grow properly. The water has to be really it's part of who we are and, you know, it's one of those fundamental core pieces of our identity.

It's for me, it's why I came down to the, this portion of the territory to try to protect the wild rice because the rice has a right to live and the future generations have a right to. Be in community with that rice. This is Tara Houska, again, a member of the bear clan of Ojibwe. And what is today, Canada and an attorney.

She led one of the lime three resistance camps in Minnesota because she wanted to protect Mahnomen. It's something that's been passed down through generations, and it's something that our people fought for and that sustained us. And that we sustained, you know, we have this mutuality based relations. Of respects.

Um, it keeps us alive through the winters, you know, the winters up here, harsh and your rice is how you make it. And it's also, you know, I mean, for the economies in the world, it's a form of economic, um, trade that's been going on since Minnesota began before Minnesota began, you know, like read some old school pieces about.

Outsider analysis, like the first Raiders analysis of Ojibwe people. And they said that we were kind of like these people that kept to ourselves and didn't really need much because we had wild rice. Like they specifically mentioned wild rice is a way that they couldn't like gain the upper hand. You know, it took like.

Ripping the sturgeons out of the river and like trying to like, you know, cut us off from food. I mean, that's like the step, the colonization strategy. That's very common. The techniques used to harvest and prepare Mahnomen are passed on from generation to generation. I mean, every bit of it is a ceremony, you know, that, that you experienced.

It's like it's a time of the year that I think a lot of us look forward to and. Every part of it is so important, you know, I mean the, the knocking, the polling, the paddling, um, the parching, the drawing, I mean the roasting and the smells and. The tactile pieces where you're touching and feeling the sacredness of nature that's going to in turn, take care of you, keep you alive, like all the different words and phrases that describe that process in our language, you know, that they have a lot of meaning and depth and it's, uh, it's more than just.

You know, it is a food obviously, but, and it's part of why we came here, right? Where the food grows on water. That's what we told by crater. The come that's, why we came here, you know, from the east coast. But there's more than just it being food. It is when you're out in the rice and you're knocking the rice or you're pulling through the rice or you're paddling through the rice, it's rhythmic and it's soothing and it's healing.

And you can smell the water. It's like all around you and the rice, and it's just, it's such a beautiful part of life.

the Mahnomen lawsuit filed in white earth tribal court in August, 2021, alleges that the Minnesota department of natural resources along with other state agencies. Violated the right of wild rice to survive and thrive by handing out permits to Canadian pipeline company and bridge that put the region's water at risk of contamination.

Like I mentioned earlier, rights of Mahnomen were added to the 1855 treaty. That's that tree document governing the Ojibwe, his relationship with the United States and with the state of Minnesota back in 2018. The Minnesota department of natural resources or DNR filed an injunction almost immediately, basically a request to throw the case out entirely.

They argued that white earth tribal court had no jurisdiction over a state agency in particular. They invoked the 11th amendment, which bans any state from suing another state. They filed that claim in federal court though. So now the jurisdictional debate is proceeding in federal court while the rights of minomen case proceeds in tribal court, Tara house gas, as the DNRs reaction to the wild rice suit came as no surprise.

But as soon as DNR was side by side with the police officers that. Protecting embers is pipeline throughout the course of the ground. Struggle. I think there are certain moments that really stand out when you see, like there's a sign behind that says protected wetland that has an Embridge symbol on it.

There's a DNR officer standing in front of it. And then there's just this like gaping scar that's been placed into the earth right next to it. Clearly destroying that wetland, you know, and there's the DNR right there and telling you to step up. And so like I was not at all surprised to see them immediately in this oppositional to tribal sovereignty, they clearly have no.

Minnesota district court ruled initially in favor of the tribe, meaning the case could be heard in tribal courts and that Minnesota DNR would have to work out a solution with white earth. That decision was appealed. And in December, 2021, that the eighth circuit court of appeals heard the case. While that whole jurisdictional argument plays out white earth, tribal court has allowed a stay in the case there, which means they'll wait and see what happens in federal court.

Bow is the lead attorney on the case. And he's cautiously optimistic because wild rice, those exact words were specifically mentioned in all of the original treaties between the Ojibwe and the U S government.

The rights and minomen for us, we're relying on treaty language, wild, wild rice treaties are the Supreme law of the land on the constitution. So it's hard to get around that not being a constitutionally protected treaty, right? That's that's about as high as you can get. And the DNR thought that primarily that the 11th amendment applies to us.

But if you read the 11th amendment, it says that citizens of another state can't Sue another. Well, we weren't citizens. We haven't been citizens for Indians, not taxed. We have treaties we're separated out. So they've appealed it to the eighth circuit court of appeals. And they're going to argue there. We shouldn't have to do this, but an actuality, you do have to do that.

If Bebo is right, and the case is allowed to proceed in tribal court. And if it actually succeeds in holding the Minnesota DNR accountable, or requiring anything of Enbridge, the Mahnomen case could set a pretty major press. Especially when you consider that so many of the oil and gas pipelines in the United States cross either indigenous land or waterways that tribes have rights to.

And that's what scares the DNR, because if we're successful with exercising our jurisdiction, then that probably means that a lot of other tribes can do the same thing in a lot of other states. In fact, it could have a pretty immediate impact on another pending pipeline in Ojibwe territory. One that would also threaten wild, rice Line 5 in Michigan Like Line 3 it's been positioned as a replacement pipeline for an older line running under the Straits of Mackinaw that could potentially threaten the great lakes and several rivers.

[00:25:03] Frank Bibeau: I think our law That we've created and we're using right now is a game changer and that other Chippewa bands are going to look to do the same thing with Enbridge in particular, where line 3 continues on through Wisconsin, um, as line 5 and goes over into, uh, Mackinac with Michigan

This is all the same rights and the same arguments The other argument Bebo is making is that rights of minomen protect pipeline protestors to the rights. Mahnomen provides a defense for tribal members who are defending the wild rice and. Right now. I bet I've got a, I'll say about 35 cases. They're not all mine, but all of the tribal water protectors who were charged, one-on-one's one of my clients, Tara, who's just one of my clients in the tribal court setting.

There's probably about 15 water protectors from wider. And so what I've argued is that while. Now has off-reservation reservation jurisdiction, and that these people are protecting treaty resources, which has provided for their, our off-reservation jurisdiction and that those cases should be sent to the wider tribal court.

So when you look at what treaty rights really are under federal law, they're considered user prepper property rights, the rights to hunt fish, and gather.

Who's the fructuary is not a word. We hear that often. It means the right to use or benefit from property while someone else owns the title to it. So in this case, the Ojibwe have the right to hunt fish and gather on the lands that they seated to the U S government. That was the deal. We'll give you the land.

But we want to retain the right to hunt fish and gather on it. It was written into the original treaty. It's been written into all subsequent treaties and is still part of the treaty governing the relationship between the Ojibwe and the U S government today. So we have a right to be in the public waters and the public plans because that's our primary place to exercise our rights.

We have a right to be there. We can't be trespassing and we have a defense to trespassing, defensive, the Noman, the same thing for the other tribal. As they wait for the eighth circuit's decision on the minimum case, that jurisdictional question, water protectors, like Dale Greene and Tara Houska are continuing to fight to protect both nature and their culture and traditions.

I'm not going to apologize for people. Feeling the need to stand up for pristine water. It is cultural genocide, right? Like this is the eradication of culture, but it's also eco side. The eradication of that living, being that has, you know, uh, does it have a right to live

next time on damages? And I was trying to think of what would a radically different consciousness it would be all linked look like. And I said it would be where nature had rights trees, warming to rivers, and the place broke his pen. Not really that rational Western mind that came up with these ideas.

You know, it is actually those individuals of Armani with environments all around the world. One confined, you know, the same approach when it comes to indigenous peoples and many Western societies, we value. The things that we value. And by giving them rights early, Americans were afraid of the wilderness.

And they said, if we leave Indian peoples in ownership, they will just waste it as well.

Damages is an original, critical frequency production. Our editor and senior producer is Sarah. Sound designed by Ray Pang, mixing and mastering by Mark Bush, additional editing by Martha Troy in citizen of obese Shikha Kong, lax tool. First nation, the show is written and reported by me, Amy Westervelt with additional reporting by Karen Savage, Meg Duff and limbo Rollins.

Our fact checker is, and. Our first amendment attorney is James Wheaton of the first amendment project. Our theme song, this season is burden. The hand by four known artwork is by Matthew Fleming. The show is supported in part by a generous grant from the file foundation. If you'd like to support our work, please rate or review the podcast wherever you're listening and share it with friends.

Thanks for listening. And we'll see you next time.