5-4 Presents: Damages - "Manoomin v. Minnesota"

Hey guys, we

sorry.

Hey everybody.

Why don't you try one higher octave?

Hey everybody!

Hey guys!

To our dearest listeners.

All right, all right.

Hey everybody, we've got an episode of something we think you might like.

like.

It's called Damages, and it comes from the same people who make drilled.

Yeah, so the show follows the stories behind the hundreds of climate cases in courts all over the world, and the first season is about the rights of nature.

So this episode digs into a case in Minnesota, which could actually end up in the freaking Supreme Court.

It hinges on whether tribal courts have jurisdiction over state agencies.

If the suit is successful, it could be used to block oil pipelines, which would be fucking sick.

Yeah, so here's dam.

I don't know how to transition out of that, would be fucking sick.

Might say like big time.

Absolutely.

So here's damages.

If you like it, you can subscribe to it wherever you find your podcasts.

And if you don't, we're sorry, you know, we didn't mean to do this.

This actually sounds really good.

I want to listen.

Opponents of Enbridge Energy's Line 3 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 Winona LaDuke 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 grandmother.

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 have heard over the past couple years about the fight against the Line 3 pipeline in Minnesota.

Folks were 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 longtime 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 3.

It has, according to Enbridge, about

900 structural anomalies in it.

Structural anomalies are things like small little pinhole leaks, maybe come some some cracks, and some of those end up to be big problems, like that Kalamazoo spill.

Fixing these problems is very expensive, so Enbridge wants to abandon the pipeline, walk away, and build a brand new one in a brand new corridor.

Enbridge calls this a replacement project.

They're replacing line three.

They are not replacing line three.

They're putting in a whole new corridor and doubling the size of the line.

That's not a replacement.

That's a brand new line.

Despite all the resistance to line three, 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.

The unique case names wild rice, which is sacred in Jibwe culture, as the lead plaintiff.

In fact, according to attorney Frank Bebo, the tribe was preparing to fight this battle years ago.

So Enbridge was trying to do Sandpiper pipeline through here on the same corridor.

Enbridge is the Canadian pipeline company responsible for Line 3 in Minnesota.

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.

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.

And then 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, because they were still running the Line 3 program.

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 monomen in the Ojibwe language, to that treaty.

According to Bibo, the change just formalized something that had actually been in all of the treaties between the Ojibwe and the U.S.

all along.

Really, our jurisdiction lies over a broad area for hunting, fishing, and gatherings.

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 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 and so that's what that law is 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 very good then everything else isn't doing very good

Rights of Menomin 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 is under attack from industry or displacement or removal or, you know, all the colonial patterns that have been going on for such a long time.

That's Ojibwe lawyer Tara Hauska.

She's a member of the Bear clan of Kuchiching First Nation, and she's been one of the leaders of the resistance against Line 3.

Today, she's eagerly watching the last legal challenge to the pipeline, a suit brought on behalf of 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, too.

I'm Amy Westervelt, and I've been reporting on a whole bunch of climate lawsuits over the past decade, and especially in the last five years.

I wanted to make a podcast documenting those cases because to me, lawsuits aren't about formal arguments in a courtroom or dry legalese 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 nature.

Future seasons will 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, Wild Rice.

Stay with us.

So, you know, our linguistic stock extends far south into

what's now called the United States, up to Hudson Bay and as far as the Saskatchewan Plains.

And we were all given instructions on our migration back

here

that we were going to find

where we were meant to be, where the food grew on the 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 day in Duluth to tell us more about wild rice, Menomin.

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 some to show us.

Now you know you see me fiddling with this plastic bag.

This isn't some illegal substance or anything like that.

This is tobacco.

In Ojibwe it's called a sema.

And you know

if you ever been around Indian people specifically Anishinaabe people?

Anishinaabe is the Ojibwe word for the tribe so you'll hear them referred to as Chippewa, Ojibwe and Anishinaabe Anishinaabe kind of interchangeably depending on who's speaking and in which context.

Just about everything we do

we'll put out tobacco and ask

for the spirit's help

on doing it, whether it's taking fish from a lake, whether it's harvesting maple sugar, whether it's harvesting berries, whether it's taking cedar

off the trees for medicinal purposes.

we would offer the asema to that living

being.

I will ask Giza Gukwe 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 suit the state of Minnesota, and listen to this story.

Now, when we were placed here,

you know, our ancient teachings say that

we were like a wisp of smoke.

You know, there was that spirit

essence that looked like

a wisp of smoke.

This is Dale Green again telling the Ojibwe creation story.

And the way the old man described it to me, he said it's like a hot day and you get a downpouring of rain

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 you know some people to this day talk about there's

uh

a bright light in 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

because they've been told to me over and over

so I would understand them and I would be able to share them.

Because prior to 1978,

you know, a lot of these pro-social

teachings were underground, outlawed.

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 dams.

The same thing happened in Canada, giving Indigenous people even more reason to want to protect Menomon 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.

We're without our mortal shell.

We're without substance.

And our creation stories say that we were placed here by Gichimanadu,

the Great Mystery.

Some people say that, you know, God, the Great Spirit,

Gichimanadu,

in the Ojibwe language, sent down these incorporeal beings, supernatural beings, and they were instructed by the Great Mystery.

to help Nyanishinabe

exist here.

And in the creation story they've already created the flora and the fauna.

So I was taught that these supernatural beings went around to the animals

and

petitioned them

to give up their

substance

to give us substance and substance.

They went to the two-leggeds,

the four-leggeds, the fish,

the monoman, birch bark trees, the

maple sugar trees, the berries,

the plants, everything

that

has a living spirit.

But the covenant is

is that forever remembering what they're giving us, which is part of their life, you know, hopefully, you know, my body's found in 500 years, someone's going to say, this guy's full of Manomin.

So

it's a different world concept.

I was just seeing an article somewhere where the dominant culture sees resources

as

something to be utilized and becoming a commodity.

The things that they did their best

to weaken that influence from those that came before us to today,

you know,

we're part of that creation.

We're part of that

thing that gives us something had to give us substance.

Something have to give us substance.

And

the agreement was we would remember.

And, you know,

I can look at water and see a spirit there.

I can look at a rocky

hillside

and see a spirit there.

Right now, 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, monoman.

It grows in large green stocks only on these northern lakes.

Every year in late August, Ojibwe harvesters hit the lakes in canoes carrying knockers, these traditional harvesting sticks that are used to gently knock the stalks, sending wild rice falling into the belly of the canoe.

The rice is roasted and dried or bagged and sold.

For the rice to grow properly, the water has to be really clean.

It's part of who we are.

You know, it's one of those fundamental core pieces of our identity.

It's for me, it's why I came down to 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 Hauska again, a member of the Bear Clan of Ojibwe in what is today Canada, and an attorney.

She led one of the Line 3 resistance camps in Minnesota because she wanted to protect Menomin.

It's something that's been passed down for 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 relationship of respect.

It keeps us alive through the winters.

You know, the winters up here are 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

trade that's been going on since Minnesota began, before Minnesota began, you know, like

I've read some old school pieces about

outsider analysis, like the fur traders 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 as 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 stat, the, that's the colonization strategy that's very common.

The techniques used to harvest and prepare Menomen are passed on from generation to generation.

I mean every bit of it is a ceremony you know that that you experience.

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 pulling, the paddling,

the parching, the drying, I mean the roasting and the smells and the tactile pieces where you're touching and feeling the sacredness of nature that's gonna

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, they have a lot of meaning and depth.

And

it's more than just food.

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 were told by Creator to 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 such a beautiful part of life.

The Menomin lawsuit filed in White Earth Tribal Court in August 2021 alleges that the Minnesota Department of Natural Resources, along with with other state agencies, violated the right of wild rice to survive and thrive by handing out permits to Canadian pipeline company Enbridge that put the region's water at risk of contamination.

Like I mentioned earlier, rights of Menomin were added to the 1855 treaty.

That's that treaty document governing the Ojibwe's 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 Monoman case proceeds in tribal court.

Tara Hauska says the DNR's reaction to the wild rice suit came as no surprise.

Minnesota's DNR was side by side with the police officers that were protecting Embridge's 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 DNR officers 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 back.

And so, like, I was not at all surprised to see them immediately

in this oppositional to tribal sovereignty.

They clearly have no respect.

Minnesota District Court ruled initially in favor of the tribe, meaning the case could be heard in tribal court and that Minnesota DNR would have to work out a solution with White Earth.

That decision was appealed, and in December 2021, 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.

Frank Bebo 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 of Monoman for us, we're relying on treaty language,

wild rice.

Treaties are the supreme law of the land under the Constitution.

So it's hard to get around that not being a constitutionally protected treaty right.

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 state.

Well, we weren't citizens.

We haven't been citizens.

We're 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 in actuality, you do have to do this.

If Bibo 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 Monoman case could set a pretty major precedent, 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 streets of Mackinac that could potentially threaten the Great Lakes and several rivers.

I think our laws 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 three continues on through Wisconsin.

It's line five and goes over into Mackinac with Michigan.

This is all the same rights and the same arguments.

The other argument Bibo is making is that rights of Menomen protect pipeline protesters too.

The rights of Menomon provides a defense for tribal members who are defending the wild rice.

And

right now,

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, Winano is one of my clients.

Terre Huska is one of my clients in the tribal court setting.

There's probably about 15 water protectors from White Earth.

And so, what I've argued is that White Earth now has off-reservation jurisdiction, and that these people are protecting treaty resources, which is provided for under our off-reservation jurisdiction, and that those cases should be sent to the White Earth tribal court.

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

Usufructory 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 ceded 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 lands because that's our primary place to exercise our rights.

And if we have a right to be there, we can't be trespassing and we have a defense to trespassing, defense of Menomin.

The same thing for the other tribal members.

As they wait for the Eighth Circuit's decision on the Menomin case, that jurisdictional question, water protectors like Dale Green and Tara Hauska 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 ecocide, the eradication of that living being that has, you know, does it have a right to live.

Next time on damages.

And I was trying to think of what would a radically different consciousness, that would be law-linked, look like.

And I said it would be where

nature had rights,

trees warming to it, rivers.

And the place broke.

It was pandemonium.

Not really the rational Western mind that came up with these ideas.

You know, it is actually those individuals that live in harmony with environments all around the world.

One can find, you know, the same approach when it comes to indigenous peoples.

In many Western societies, we value things that we value 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 wilderness.

Damages is an original critical frequency production.

Our editor and senior producer is Sarah Ventry.

Sound design by Ray Pang.

Mixing and Mastering by Mark Bush.

Additional editing by Martha Troyan, citizen of Obishikakong, Laksul, First Nation.

The show is written and reported by me, Amy Westervelt, with additional reporting by Karen Savage, Meg Duff, and Lyndall Rollins.

Our fact-checker is Wu-Dan Yan.

Our First Amendment attorney is James Wheaton of the First Amendment Project.

Our theme song this season is Bird in the Hand by Foreknown.

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.