White Earth Attorney Frank Bibeau speaks about historic Rights of Manoomin case

December 14, 2021

Barbara With

On December 16, 2021, the White Earth Band of Ojibwe will take the next step in their historic court case against the Minnesota Department of Natural Resources. On August 4, an action was filed in the Tribal Court of the White Earth Band of Ojibwe in Minnesota, by Manoomin (wild rice), the White Earth Band of Ojibwe, and several tribal members, to stop the State of Minnesota from allowing the Enbridge corporation to use five billion gallons of water for the construction of the oil pipeline Enbridge Line 3. This is the first case brought in a tribal court to enforce the rights of nature, and the first rights of nature case brought to enforce Treaty guarantees.

According to Frank Bibeau, Tribal Attorney representing wild rice and the White Earth Band of Ojibwe, this case is historical, and has the ability to influence change in how environmental law is focused in the U.S. In a presentation to the Center for Democratic and Environmental Rights, Bibeau answered questions about the case, and why it could have such impact across the country.

Excerpts

MARI:  What do you see is happening and coming next in this case and Line 3?

FRANK: For us, Line 3 isn’t over. Line 3 still has problems that need to be fixed and identified thoroughly. I think that’s part of the reason the DNR is hiding right now and doesn’t want to parti­­­cipate in what’s going on with the 5 billion gallon dewatering permit.

Since the pipeline has been connected and we understand that oil is flowing, the actual construction sites, primarily the water crossings, appear to have a variety of frac outs. They have also breached some artesian aquifers. Part of the concept of dewatering is allowing the millions of gallons of water that have been leaking out of the aquifers to also go forward. The DNR tried to get Enbridge to stop it. They haven’t stopped it. They fined them $3.3 million. That’s the price of them selling our resources off without our consent again, which is very scary.

So when I look at what’s going on with manoomin, I think we’re not only going to have to continue with our litigation in tribal court, but we’re also going to look at adding another party—maybe the Minnesota Pollution Control Agency, because they also have a role in this. They have supposedly identified 28 frac outs, but they don’t want to identify the locations of those places.

I think they’re hoping that they can just go home, that no one will look at these sites—”there’s nothing to look at here.” But Ron Turney’s been doing a really good job with a lot of the drone footage. We’ve just had a fly over with thermal imaging. So we’re going to identify those places and make sure that they’re followed up on and protected. Then we need to use that same information as Line 3 converts over to Line 5 in northern Wisconsin and Michigan. It’s all similar terrain and vulnerable to the same kinds of poor planning and poor execution of the construction plans.

What’s happening here may very well be what causes the stopping of new pipelines in North America, and may very well be the rebalancing of environmental tools and scales between tribes and States. If tribes have the ability to require consent, that’s going to make the states have to think a lot more about how they go forward with their permitting, if they do at all.

MARI: What do you see the implications of this case being for the ability of a tribal nation to protect its treaty rights?

FRANK: It’s very important for all of the Chippewa. We have 44 treaties with the United States. Our territory runs through the Great Lakes into North Dakota. We all have the same treaty rights that are meant to not only protect our rights to hunt, fish, and gather, but to also protect the resources so that we are always able to hunt, fish, and gather, and that those who come after us in perpetuity will be able to enjoy those same benefits and rights themselves.

The state of Minnesota, the DNR, the PCA with permitting all kinds of different activities have exhausted our resources, without the consent of the people, without the consent of the Anishnaabe. Article 5 of the 1837 treaty talks about the rights to hunt, fish, and gather, and wild rice on the lands, rivers, and lakes in the territory being ceded. That is a big statement. That means everything in the garden is still subject to our rights to access and to feed ourselves, forever. We’re talking about food sovereignty and food security. That’s what comes back to tribal sovereignty and our enforcement mechanisms. If we can’t defend our food and cultural sources, especially with rights to manoomin, then as the judge said, it’s meaningless. It’s a fiction of law. We should have the right to protect wild rice in particular, because it’s named in the treaty. Treaties are the supreme law of the land, according to U.S. constitution. This circumstance may very well be the turning point for a lot of the work that been done with rights to nature—finding a form that is a leg up on state agencies that have been actually permitting all the pollution.

MARI: What do you see is needed in terms of policy or lawmaking at a tribal level with White Earth or other tribal nations, at a state level, or even at the federal level?

FRANK: i think there’s going to have to be more than what is normally called co-management. Co-management leaves secrets between the two parties about what’s going on. I think if consent is required, then people must be forward and honest about what they’re doing. Otherwise, we’re not going to get there through any public process that they’re giving notice on. This would improve the way resources are looked at.

If we don’t start protecting the resources even now, at this late date, then we may not have a whole lot to protect. There are thousands of waterways and waters in Minnesota that are impacted already where you don’t have the same kinds of fish, vegetation, or water quality. People are concerned not just about the environment, but those who have lakeshore property are concerned about the value of their property if these waters are degraded.

When you look at what this litigation is about with the rights manoomin, it all comes back to rights of water. That’s a lot of what the organization has been working on, rights of nature, rights of rivers, and things. But for us, manoomin transcends the law into the cultural spiritual side of things and makes it a lot harder to say, that law doesn’t make sense. That law makes perfect sense. Every tribal member knows exactly what that law is about.

This is groundbreaking, as what my friend Joe, another tribel attorney that I’m working with says. He thinks it’s groundbreaking, and I think other people do, too. That’s why there were seven Chippewa bands who were on the amicus brief for what’s going on in the 8th circuit right now. They see the power and the opportunity to change the balance of the environmental world of protection.

MARI: The Biden administration recently just last week or two announced this interagency agreement among 17 different federal agencies. The agreement is focused on increasing consultation with tribal nations on federal treaty right obligations. How do you think it might impact mahnomen and what you’re doing?

FRANK: I don’t think it’s going to impact what we’re doing very much. If anything, I think it’s camouflage or a fig leaf for what the Biden administration is doing. Personally, I think that the Biden administration has sold us out with regard to Line 3 and protecting our waters. They fought us in federal court. What I’m seeing even more is with regards to mining that’s going on in Minnesota. Polymax been in a 10-year fight. There’s been a recent Supreme Court decision from Minnesota and there may have to be other enforcement by the PCA with regard to water quality permitting and water quality standards. I don’t think the PCA knows how to go forward and start defending the resources very well yet.

With the mining, what we see is copper, nickel, and other exotic metals. Recently I saw GM come out and say that “we need to have these metals right now.” From Tesla, the same thing, they said, “we want to have anybody who’s involved in mining copper, nickel, and these other metals to be actively doing more of that right now.” Those places are in the same exact places where wild rice grows. They’re the same places that the pipeline went through. Our resources are being sacrificed by the Biden administration so that there can be this new access to metals—what people call the “Green Wave,” for solar energy, for cell phones, etc.

In reality, what is and isn’t green, and what they’re talking about with treaty rights—they may help people down the road. But right now, what we’re doing for ourselves with rights of manoomin is going to do a lot more for us and tribes across the United States. I think you’re going to see the other state attorney generals start to look at how to more respectfully conduct themselves and consult with tribes about what they should or shouldn’t be doing in the environment.

Whatever is happening at the federal government isn’t happening soon enough for everything that’s going on because Joe Biden says he wants to have all these electric cars. I get that. But that comes back to extracting those same exotic metals, and doing it right at the Mississippi River waterways. It’s not good for us. it’s not good for the planet. It’s not good for anything that’s going on.

We still have to fight Line 3 and prevent what’s going on in Wisconsin for those same kind of waterways: the waters of the Great Lakes, Lake superior. I don’t see the Biden Administration talking about it. They want to talk about the future-future. It’s all rosy scenario. I’m all up for it, but how are we gonna get there from here safely and protect the resources we have now, that we know are being targeted and degraded.

MARI: Who is representing the DNR in this case? Is it the AG that’s representing the department or somebody else?

FRANK: It is the attorney general. There used to be a couple hundred attorney generals who work for the state of Minnesota. Usually there’s a half dozen to a dozen that work for each state agency, depending upon the amount of work that’s involved. There are attorneys directly working for Keith Ellison’s office, in the sense of the hierarchy, but as far as I know, they’re based right with DNR.

MARI: What does Ellison sit on this case?

FRANK: He sits all over and he hopes to certainly be on the right side of things and be reelected. Keith Ellison worked with legal services as an attorney a long time ago in Minneapolis. He understands the plights that have happened to Indian country over and over. He also understands that we’re turning the page to show that Minnesota’s going to have to learn to cooperate and step up and become cooperative with the tribes. He should take that leadership role before we have to go to court and do more litigation against them.

There’s a better way to solve this: through communication, consultation, cooperation, and consent. We can do it the other way, but I think that scaring the other state governments as well. Those attorney generals see that what Minnesota is doing in federal court is opening up their vulnerability to the tribes in their states as well. Keith should be thinking about what the decision is going be from the 8th Circuit Court of Appeals as well for the rest of the United States.

MARI: Is there a feeling that the state is putting up such a fight for fear that they could lose this case?

FRANK: Yes, I think they are worried about that. All of the actions in tribal court themselves are the same kind of actions I would have done for lack of jurisdiction. I filed in state courts against the DNR and I’m doing that right now with the Line 3 water protectors. So that part all seems normal.

Normally in law, you can only be arguing things in one place. The DNR has said, well, you know, we don’t think you have the right to decide here in tribal court, but just in case, we’re going to appeal right now in the federal court. That looks really weird. Nobody is supposed to be having two games going on at the same time over the same issue. That tells me that the DNR is very afraid. They don’t want to go through the tribal court process.

They want to accelerate the answer now. They’re not going to get to the answer now. It’s going to be very interesting to see what they do if the 8th Circuit basically upholds the federal District Court in Minnesota and says, “you have to go through and exhaust your administrative remedies. We don’t have a way to stop the tribal court from exercising jurisdiction over the state.” That was what the judge asked: what authority are you citing to that gives me the right to tell the tribal court they don’t have the right to exercise their jurisdiction to protect manoomin? The DNR had no answer.

MARI: Because oil is flowing through Line 3, what does this mean to the case?

FRANK: In some ways, it means the same thing that happened with Dakota Access: the federal court there said, hey, turn off that oil. We’re going to do the environmental impact statements the right way. So in that sense, we’re going to probably end up with the same kind of a concept with federal court. That could still come out of the case in the DC circuit against the corps of engineers.

I think we’re going to look at turning off the oil in a different way because it’s a different jurisdiction than federal jurisdiction. It’s different than state jurisdiction. If you’re inside of our ceded territories and willfully exercising the destruction of our planet, our resources, the climate change—they’ve already had valve turners that were tried in Minnesota who said they didn’t have another way to stop what’s going on.

If Enbridge can’t obey the federal court, then it’s really limiting the opportunities or the rights of people to protect themselves. It may very well be that a different court order says shut that valve off. It may be looked at as a civil matter rather than a criminal matter. It may be within our jurisdiction to do that, even though we haven’t tried that before.

There’s things coming down the road that I haven’t even thought about. Other people are going to start realizing the opportunities and we’re going to learn from each other. We’re going to find a different way to physically exercise our jurisdiction. They can’t be allowed to just thumb their nose at us and continue to pump the oil and and get away with not having to comply with the court orders we would all have to comply with. They have only been charged with a misdemeanor for all the water destruction that they’ve done. Water protectors themselves are facing felonies for exercising their rights to defend the water, defend the manoomin and prevent more climate change problems.

This is probably the legal reckoning on a number of fronts. It may very well be that tribal court is going to be the place that does it.

MARI: What do you see needing to happen or would like to see happen with other tribal nations that would either be service in solidarity, or valuable in terms of this particular case?

FRANK: I’m already getting solidarity from the amicus brief bands. That was really a good showing that we all see that our rights are being impacted in the same way and we all want to exercise our rights the same way.

I look out west at the Klamath and the river out there in the northwest part of Washington. Right now one of my friends up there has a case going that’s looking at the three dams that create hydroelectricity for the city of Seattle. These are impeding the salmon from getting upstream to the place that the tribe said, “yeah, we’ll stay and live as long as we got our food coming upriver,” but they’re not getting it. It’s going to be very interesting to see a fully-lit city like Seattle at night, if you’ve ever seen the skyline, you know. That’s part of what they they do with their legal work, is to show just what’s being taken from them in those expenses. It may very well be that treaty rights are going to change those kinds of landscapes all across the United States. It might be slow at first, but it’s getting the ball rolling and people seeing, is it the rights of fish? Is it the rights of trees? Is it the rights of wild rice? What needs to be protected and how do we go about crafting that in such a way that the state can’t permit further destruction?

MARI: What sorts of things can folks do to be helpful?

FRANK: We’re in a different phase right now with the water protectors. We still have the legal defenses going on. People are still working on raising funds and helping those water protectors out as we go through those parts.

Probably more importantly we’re looking at actual monitoring of the frac outs and aquifer breaches. The people that did our fly over with their airplane, they’re looking at a ground temperature of 25 degrees to water temperature that could be 40 or 45 degrees. They can  detect frac outs and aquifer breaches under the water of the Mississippi River that we wouldn’t normally be able to see, just because it’s probably 40 or 45 degree water coming out into 35 degrees river water. We’re going to be looking for all those places that the DNR and the PCA have walked away from. We’re going to make sure that people understand how the people who did the construction plans didn’t follow those plans, how they secretly circumvented the protections that were put in place so that we wouldn’t have these kinds of things happening, and how we hold those people accountable.

This is going to be the model for the future for the Chippewa, and the model for all the water protectors.