Overview of White Earth’s case of Manoomin vs the State of Minnesota DNR court case

December 15, 2021

Barbara With

Tomorrow, White Earth Band of Ojibwe will appear in 8th District Court in an historic case involvingtreaty rights, the rights of wild rice, the Minnesota Department of Natural Resources and 5 billion gallons of water they permitted Enbridge during the worst drought in decades.

Thomas Linzey, senior legal council for the Center for Democractic and Environmental Rights is assisting in the case of Manoomin vs Minnesota Department of Natural Resources in White Earth Tribal Court. On December 7, 2021, he explained the intricacy of the case and why this case is so important to indigenous treaty rights.

Excerpts

“The Case for Wild Rice, expanding tribal sovereignty through enforcement of the rights of nature and treaty rights.” The formal title of the case is Manoomin vs Minnesota Department of Natural Resources (DNR).

The title itself contains two big concepts: expanding tribal sovereignty through enforcement of the rights of nature, and expanding travel sovereignty through treaty rights. This is the perfect storm between the rights of nature, and these treaty rights that the Chippewa hold that are enforced or attempted to be enforced through this particular lawsuit.

Why was the case brought and what’s the case about?

Let’s start with the law that’s used within this particular Manoomin lawsuit: treaties made between the Chippewa and the United States government. “Treaties” are essentially contracts, in this case are signed between the Chippewa tribe and the United States government, in which the Chippewa tribe “ceded” or gave away certain territory, while reserving what are called “usufructuary rights” or “use rights” on the property and territory that was ceded.

Between 1778 in 1868 there were approximately 370 treaties signed between the United States government and tribes. Forty-four of those treaties were signed between the Chippewa and the United States government.  Article 5 of the 1837 treaty between the Chippewa tribe and the U.S. government provides that the reservation of rights that was taken by the Chippewa in return for ceding of territory to the U.S. government declares the privilege of hunting, fishing, and gathering the wild rice upon the lands, the rivers, and the lakes included in the territory ceded. It is guaranteed to the Indians. That’s a standard reservation clause of hunting, fishing, and gathering rights, roughly known as “use rights” or “usufructuary rights” that were reserved in return for ceding territory to the U.S. government.

We don’t want to make it seem that most of these treaties were voluntarily given in terms of the ceding territories. None of this happened without pressure from the U.S. government for various items for that territory to be ceded.

A quote from Chippewa chief Ma-ghe-ga-bo who oversaw the 1837 treaty negotiations: “Of all the country that we grant to you, we wish to hold onto a tree where we got our living, and to reserve the streams where we drink the waters that give us life.” From the 1837 Treaty Journal.

The 1855 Treaty Authority is an entity that represents about 25,000 Chippewa tribal members who are beneficiaries of the 1855 Treaty. The 1855 Treaty made between the U.S. government and the Chippewa reserved their rights to use, hunt, fish, and gather—these present-day tribal members are beneficiaries of that reserved use.

In 2018, the White Earth Band’s tribal government and the 1855 Treaty Authority both adopted laws recognizing the rights of wild rice, or “manoomin”—legally enforceable rights of wild rice. How this fits into the rights of nature concept is that wild rice holds the rights, not individual tribal members holding rights. This is in addition to treaty or use rights that those members have, but recognizing that manoomin itself as wild rice, as a cultural staple of the Chippewa people, actually possesses certain legally enforceable rights.

The laws declare that wild rice possesses inherent rights to “exist, flourish, regenerate, and evolve,” as well as inherent rights to “restoration, recovery, and preservation.” They declare that manoomin has a right to pure water and freshwater habitat, the right to a healthy climate system, a natural environment free from human-caused global warming impacts and emissions. The laws give manoomin itself the rights to enforce those rights, in addition to giving the White Earth Band and tribal members authority to directly enforce those rights. The laws give manoomin itself the authority to directly enforce those rights. That’s why the name of the case, the lead plaintiff in this litigation, is “Manoomin.” The laws recognize that manoomin itself has the authority to directly enforce the rights that were established by these laws passed by the White Earth Band and by the 1855 Treaty Authority.

When we talk about manoomin having rights, it bends our brains. We’re used to talking about rights being held by people or by humans only. But there’s been a growth in this area of law known as “Rights of Nature.” The indigenous understanding of nature is that it is not property, but that these rights of nature laws established legally enforceable rights of nature, species, and ecosystems.

Rights of nature laws have been adopted by municipal governments in the U.S.—over 30 municipal governments, including places like the city of Pittsburgh, and Orange County Florida, which last year became the largest municipal government in the U.S. (1.5 million people) to adopt a Rights of Nature law protecting various rivers there. Municipal governments in Canada, most recently the Magpie River in Quebec was recognized as having certain rights by a municipal government. The Rights of Nature laws are also embedded in Ecuador’s constitution and national laws, and Bolivia and Uganda, and in court rulings in Ecuador, Colombia, India, and Bangladesh. The most recent Ecuadorian constitutional court ruling dealing with the Los Cedros Forest Preserve nullified some mining permits and concessions that have been granted for that forest preserve as a violation of the rights of nature as recognized by the Ecuadorian constitution.

The manoomin laws passed by the 1855 Treaty Authority and the White Earth Band reflect this kind of rights of nature legal understanding.

Why the lawsuit

What’s the problem here? Why are we in a lawsuit? It’s the Enbridge Line 3 tar sands oil pipeline that carries a tar sands oil from Alberta to Lake Superior and it crosses treaty protected lands. It crosses those ceded territory lands between the Chippewa and U.S. government. It’s one of the largest crude oil pipelines in the world, carrying up to 915,000 barrels per day of this crude tar sands oil, some of the worst oil for purposes of climate change. First Nations and Tribel governments have been fighting for eight years to stop the project.

Impacts of Line 3:

  • Climate equivalent to the construction of 45 new coal-fired power plants;
  • Affects 389 acres of wild rice in 17 different waterbodies that support wild rice;
  • Affects historic and sacred sites on treaty lands;
  • One of the biggest issues: the pipeline has 227 waterbody crossings. There’s been a lot of concern about aquifer pollution from potential spills.
  • Arrests of tribal water protectors and their invited guests for enforcing treaty rights and the rights of manoomin against the construction of Line 3. Many of these are tribal members involved in protesting for these impact reasons. They have been charged with trespass, even though those protests were conducted on treaty protected lands. Even though the tribal members were involved in protesting the construction of Line 3 to protect manoomin and the hunting, fishing, and other use rights guaranteed under the treaty, they have been arrested and charged with trespass.

The nexus of this lawsuit was the dewatering permit that was issued from the Minnesota DNR to Enbridge on June 4, 2021, which permitted Enbridge to use up to 5 billion gallons of water for the construction and testing of the pipeline. The manoomin litigation focuses on challenging this particular permit that was issued by the State of Minnesota to allow Enbridge user 5 billion gallons of water for the project.

Who are the plaintiffs who are the defendants?

  • The lead plaintiff is Manoomin, wild rice itself as a plaintiff.
  • The second set of plaintiffs: the White Earth Band of Ojibwe (the White Earth Band itself and individual tribal elected officials) serve as plaintiffs. The White Earth Band sits on the White Earth reservation as part of the Chippewa tribe in Minnesota.
  • Other plaintiffs include individual tribal members who have been charged with trespass over these Line 3 protests. Even though those tribal members were arrested for trespass on treaty ceded territory and even though they were acting to protect interest protected by those very treaties, they have still been arrested and charged with trespass.

Who are the defendants?

  • Officials with the Minnesota DNR: the head people who make decisions within the DNR about the dewatering permit.
  • Conservation officers that actually made the arrests against the tribal members who were charged with trespass over the line 3 protests.

Complaint: Six Counts

Count one: asserts that treaty rights override state claims of ownership with respect to the protection of resources within those ceded treaty territories. Count one is exclusively about treaty rights and how those treaty use rights override these state claims of ownership, i.e, the state claims to issue permits that may interfere with the exercise of those use rights by adversely impacting the resources that upon which those use rights are exercised.

Count two: contends that the state has taken a treaty recognized use property, in other words, has taken these treaty rights and has not given due process to the tribe or tribal members as required by the U.S. constitution in response to taking those treaty rights, therefore owes compensation or at least has to give due process to the individuals that they’re taking those treaty rights from.

Count three: the state of Minnesota is has treated different treaties differently. They’ve interpreted different treaties differently as to how the state has to respect or not respect use rights. Therefore equal protection guarantees of U.S. constitution been breached. This basically says that every person has to be treated equally under the eyes of the law. Because the state has treated different treaties differently in terms of their application, especially in light of use rights, that there is a violation of the equal protection guarantee of the U.S. constitution.

Count four: contends that water rights have been seized and taken illegally by the U.S. government and that those water rights have to be restored. The taking of those 5 billion gallons of water was done illegally, and seized and taken in violation of the treaty guarantees and use rights.

Count five: the state is violated religious cultural rights by failing adequately train their own staff. This is their staff that are carrying out the arrests and charging with trespass for protesting on those treaty ceded lands. The state is violating religious and cultural rights by carrying out those arrests by not training their staff to respect those treaty rights and therefore not proceed with the arrests.

Count six: rights of nature. The state has violated the rights of manoomin by actually issuing the permit to take 5 billion gallons of water, because taking that amount of water effects wild rice’s ability to exist in flourish as guaranteed by the tribal laws that have been passed.

What what does the lawsuit request?

The primary relief sought is to rescind all water appropriation permits issued for the Line 3 project and establish joint permitting agreements between the state and Chippewa for all future permitting. It demand that Minnesota live up to the rights contained within the treaties.  It’s no longer just the state’s say about what happens to those resources. The state just can’t keep issuing permits for projects that interfere or infringe upon those treaty rights. There has to be a joint permitting agreement between the state and the Chippewa for all future permitting to occur because that permitting may have an impact impact on those treaty rights.

The lawsuit then asks the court to declare for Declaration, which under litigation practice is known as a “declaratory judgment.” We’re asking the court to make a binding legal statement about the rights of various parties:

  • To declare that manoomin has certain rights and those rights are violated by the water permit;
  • That Minnesota must obtain consent and it must be real consent, not fake consent, from the Chippewa before state permits can be issued;
  • That Chippewa tribal members possess the right to harvest manoomin and protect and save manoomin seeds as part of that 1855 Treaty that covers ceded territory;
  • That Chippewa tribal members possess a right of sovereignty and self-determination to actually adopt the laws that they’ve adopted, and those rights cannot be infringed or violated by governments or other business entities like Enbridge.

Process

The lawsuit was filed in tribal court, not in federal District Court, not in state District Court, but in White Earth tribal court on August 4, 2021. On August 12 the state of Minnesota filed a motion to dismiss. They filed that motion with the tribal court and they asserted that the tribal court lacked jurisdiction to sue the state of Minnesota. They’re basically saying, we don’t care what the content of the lawsuit is, you can’t haul the state into tribal court, so the tribal court lacks jurisdiction to make any ruling over the state.

On August 18, the tribal court denied Minnesota’s motion to throw the case out for lack of jurisdiction and declared that, “In passing legislation to protect its vital resources, the band must also be able to exercise jurisdiction to carry out that legislative purpose. The hold otherwise reduces tribal sovereignty to a cynical legal fiction.”

At that point, case was filed, the state of Minnesota attempted to dismiss it, tribal court rejected Minnesota’s motion to dismiss. What you would expect to happen next would be that the case would move through the tribal court process to a hearing, evidence would be produced, witnesses would be deposed, and then there would be a ruling in tribal court.

Unfortunately, because of the state of affairs with a state being challenged over their authority by tribes in the United States, and the lack of willingness of states generally agreed to have their authority reviewed or co-permitted by tribes in U.S. that the next thing that happened was that the state of Minnesota actually sued the White Earth Tribal Court. Because of procedural rules that we won’t get into here, they had to sue the judge as an individual, rather than the White Earth Tribal Court as an entity. They brought a lawsuit against the initial judge in the White Earth Tribal Court in federal District Court. They hauled the tribe from tribal court to federal court and asked the federal court judge to remove the White Earth Court from ruling in the case. This was an effort to block the tribal court from moving forward with the case.

On September 3, the Federal District Court denied the state of Minnesota’s request to throw the case out, dismissing the state’s lawsuit, holding that the tribe couldn’t be sued in federal court over the matter. Not looking at substance but holding that the state couldn’t haul the tribe into federal court to actually try to stop it from proceeding with the case.

Instead of watching the tribal court move forward the case, on September 10 the state filed an emergency appeal, appealing the district court’s denial of its motion to dismiss the lawsuit to the 8th Circuit Court of appeals. The 8th Circuit Court of Appeals has appellate authority over the federal District Court. The state of Minnesota argued that the federal District Court was wrong and that the 8th Circuit Court of appeals had to fix the situation. They asked the 8th Circuit Court of Appeals to block the tribal court from moving forward to make a decision in case.

On September 21, the 8th Circuit Court of Appeals denied the state of Minnesota’s emergency request overturn the District Court. But by law, because it’s an appeal, they have to hear the case. A hearing date of December 16 has been set to hear that appeal for a decision that would be issued sometime in 2022.

Meanwhile, in White Earth Tribal court, while all this was happening in the federal District Court and the 8th Circuit Court of Appeals, the original tribal court judge had to recuse himself due to the filing of the federal District Court lawsuit, which created a conflict of interest, as he was now a defendant in the federal court lawsuit while presiding over the case in tribal court. A new judge was then assigned to the case. The new judge reiterated that the tribal court possessed jurisdiction to hear the case.

On September 13, the state of Minnesota then filed an appeal of the tribal court’s ruling to the White Earth Court of Appeals. So we’re back in tribal court now. The case in the 8th Circuit Court of Appeals is frozen until December 16. By law, the case within the tribal court is currently stayed until the appellate court rules. An automatic stay was issued within the tribal court until the appellate court rules.

Suffice it to say, the state of Minnesota was so afraid of the tribal court ruling that they not only went to federal court and sued the tribe to stop it from ruling in the case, but also went back to the tribal court to try to get the tribal court’s ruling overturned to make sure that the tribal court couldn’t hear the case as well. I think that gives some degree of emergency to the state of Minnesota in terms of the steps that they’ve taken to try to stop the tribal court from actually hearing this case and deciding it.

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