Yesterday, led by our grandmothers, we took the Line 3 pipeline resistance directly to the Minnesota State Capitol in St. Paul. Emblematic of the deepening solidarity among tribal nations, a caravan of 20 Standing Rock citizens, assisted by the Lakota People’s Law Project, joined us for our “Treaties not Tar Sands” rally.
An impressive lineup of BIPOC speakers and Minnesota state officials, headlined by White Earth Nation’s Winona LaDuke, addressed more than 2,000 people who showed up to call out Enbridge’s toxic tar sands oil pipeline. Toward the end of the day, we at Camp Migizi took our turn at the microphone. Five Lakota People came onstage with us to acknowledge the importance of resisting pipelines together — and they should know, since they were all at Standing Rock in 2016 and ‘17 during the NoDAPL movement.
Among the more heartfelt and timely messages imparted by our Lakota relatives was a call for unity from elder Sonny Wonase. I invite you to watch highlights from both my talk and his.
Police presence was as strong as ever, including a fence meant to wall state officials off from our prayerful ceremony and pleas for justice. As you can probably guess, that didn’t deter water protectors. At the end of the rally, my fellow organizers read a statement of demands criticizing Governor Tim Walz’s support of the pipeline and militarized response. We also continued to call on President Joe Biden to intervene.
Until we’re heard and acknowledged, we will not be silent. We will not stop taking direct action to end this invasion of our sacred lands and protect our water and manoomin (wild rice). We are carrying forward the tradition of Indigenous activism begun by the American Indian Movement in the 1960s and renewed at Standing Rock five years ago. I express my gratitude to Standing Rock for standing with us now — and to you for holding space with us and Mother Earth. If we come together across our traditional boundaries, if we act with a unified voice and spirit, we can win this fight.
Miigwech — thank you for your support! Taysha Martinaeu Camp Migizi Via the Lakota People’s Law Project
At Standing Rock in 2016, water protectors were labeled as domestic terrorists. I created this short video to counter that claim. We are just the common people out here defending our rights and our lives. The government is supposed to work FOR US. The corporations are business entities that are supposed to be producing things FOR US.
Today, water protectors from Standing Rock are still being prosecuted, and — in the troubling cases of Ruby Montoya and Jessica Reznicek — they’re still being labeled as terrorists. Because we cannot allow this dangerous precedent to be used against more people who care for our Grandmother Earth, we’re going to help defend Ruby. Our struggle against the Dakota Access pipeline (DAPL) didn’t end at Standing Rock in 2017, and it won’t be over until every water protector in the crosshairs of the criminal justice system is liberated.
In 2017, Ruby and Jessica engaged in a direct action that damaged an empty section of DAPL’s pipe. Jessica was recently found guilty, given a “terrorism enhancement,” and sentenced to eight years in prison. Ruby’s fate now hangs in the balance as her trial approaches. With litigation support from Lakota Law and the National Lawyers Guild, Ruby is going to fight. Her next hearing is scheduled for Wednesday, Sept. 1.
As Ruby says in this new video produced by our team, humanity is going through a reckoning. In the future, no one will fondly remember the names of corporations that represented the status quo; instead, many people will only wish they had fought harder to protect life on this planet. Nobody who takes a stand to stop extractive destruction should ever be charged with a felony, much less be labeled a terrorist.
Ruby told me that Jessica has never even held a weapon in her hands, and at one point she was considering entering a monastery. And Ruby is a Waldorf School teacher, who vividly remembers kids in her classes crying and losing sleep because Australia and the Amazon were on fire. Ruby’s resistance, like my own back in 2017 that earned me a felony charge, has been motivated only by a desire to give the next generations a destiny they can believe in.
Nothing any of us did comes close to a level of governmental coercion necessary to justify a terrorism enhancement. It’s fallacious to suggest we have that type of power. If the government is being coerced by anyone, it’s the fossil fuel barons who buy politicians to protect their profits. Ruby was invited by an Indigenous community to protect water and help safeguard sacred lands. She showed up. Now, we will have her back, just like she had ours. Please stay tuned as we continue to fight to prevent a grave miscarriage of justice.
Wopila tanka — thank you for standing for justice! Chase iron Eyes Co-Director and Lead Counsel via the Lakota People’s Law Project
It’s all about strategy and timing in Indian Country, especially in the legal system.
Shortly after a groundbreaking lawsuit was filed in the White Earth Nation’s tribal court defending the rights of wild rice to fight the construction of Enbridge’s Line 3 pipeline, the United Nations released its 6th Assessment on Climate Change.
The UN report includes an entire chapter dedicated to the powerful role that Indigenous knowledge can play in global development of adaptation and mitigation strategies aimed at addressing climate change.
According to the report, recognition of Indigenous rights, governance systems and laws are central to creating effective adaptation and sustainable development strategies that can save humanity from the impacts of climate change. In this first of three climate change reports, the working group focused primarily on physical science, providing evidence that a climate crisis caused mostly by human activities is upon us.
Boom. The report’s release created the perfect public moment to exert tribal sovereignty and advance the legal theory that nature itself, in this case wild rice, has the right to exist and flourish even in the face of the construction of a massive infrastructure transporting fossil fuel.
The so-called “rights of nature” argument recognizes that nature has rights just as human beings have rights; rather than treating nature as property under the law, rights of nature cases contend that nature, rivers, forests and ecosystems have the right to exist, flourish, maintain and regenerate their life cycles. Further, humans have a legal responsibility to enforce those rights.
According to the Global Alliance for the Rights of Nature, Indigenous cultures recognize the rights of nature as part of their traditions of living in harmony and recognition that all life is connected.
For Ojibwe, wild rice or manoomin, “good berry” in the Ojibwe language, is like a member of the family, a relative. Manoomin is more than food, it is a conveyor of culture, spirituality and tradition. Therefore, legally designating manoomin as a person in the White Earth Nation’s lawsuit against the Minnesota Department of Natural Resources aligns with the Ojibwe world view.
Manoomin is considered an indicator species; it is sensitive to changes in water levels and flow reflecting changes in the local climate. The Minnesota Department of Natural Resources reports that the 2021 wild rice harvest in the state’s waterways should be average this year but that low water levels caused by drought will make access difficult. Rice is harvested from a canoe.
Frank Bibeau, attorney for and citizen of the White Earth Nation, blames the Enbridge pipeline construction for exacerbating the lower water levels in neighboring rivers.
Frank Bibeau, citizen of and attorney for the White Earth Nation discusses his legal strategy at gathering at the Shell City campground in Wadena County, Minnesota, June 2021. (Photo by Mary Annette Pember)
“We are seeing rivers along Line 3 that are now essentially dry bottoms with rice growing out of the mud. We can’t get our canoes in to harvest,” he said.
On Aug. 6, manoomin was named as a plaintiff, along with several White Earth tribal citizens and Native and non-Native water protectors who have demonstrated against Line 3, in a complaint filed in White Earth Nation Tribal Court against the Minnesota Department of Natural Resources.
It is only the second “rights of nature” case to be filed in the U.S. and the first to be filed in tribal court. Several tribes, however, have incorporated rights of nature into their laws.
The lawsuit accuses the department of failing to protect the state’s fresh water by allowing Enbridge to pump up to 5 billion gallons of groundwater from construction trenches during a drought that itself is tied to climate change, which increases the pace of extreme weather swings and contributes to lags in the jet stream that keep heat waves, cold snaps and rain in an area for longer periods.
The suit also claims that the department has violated not only the rights of manoomin but also treaty rights for those who hunt, fish and gather wild rice off-reservations in ceded lands. The lawsuit seeks to establish the rights of manoomin, stop the extreme water pumping by Enbridge and stop arrests of water protectors opposing the pipeline at construction sites.
Juli Kellner, communications specialist for Enbridge, wrote an email responding to Indian Country Today’s request for the company’s reaction to the lawsuit.
“Line 3 construction permits include conditions that specifically protect wild rice waters. As a matter of fact, Enbridge pipelines have coexisted with Minnesota’s most sacred and productive wild rice stands for over seven decades,” she said.
“The current drought conditions in Minnesota are concerning to everyone. In response, the Minnesota Department of Natural Resources has suspended the use of some water sources due to low flow in specific watersheds. We are focused on protecting, conserving and reusing water on the Line 3 project. More than 50 percent of pipeline sections being tested on Line 3 by reusing water. We continue to work with agencies on next steps during these drought conditions.
“Enbridge has demonstrated ongoing respect for tribal sovereignty,” she wrote.
Department of Nature Resources spokesperson Gail Nosek said the agency is reviewing the lawsuit and had no comment.
‘Gaining traction’
Exerting tribal sovereignty by filing the lawsuit in tribal court rather than in state or federal court and advancing the legal theory of the rights of nature are unique, according to legal scholars.
“The rights of nature is quickly gaining traction in American legal law,” said Elizabeth Kronk Warner, dean of S.J. Quinney College of Law at the University of Utah. Warner is a citizen of the Sault Ste. Marie Tribe of Chippewa Indians.
“It’s already established in some other countries; the rights of nature is definitely a burgeoning area of law and I think we’ll continue to see it develop,” Warner said.
Courts in Bolivia, Columbia, Ecuador, India and New Zealand have litigated cases based on rights of nature.
The first “rights of nature” case filed in the U.S. came in April in Orange County, Florida, when the state’s waterways filed suit against a housing developer and the Florida Department of Environmental Protection. The suit says that a proposed residential development will destroy acres of wetlands.
But tribal courts have no authority to order the Minnesota Department of Natural Resources to rescind its water permit to Enbridge, according to Matthew Fletcher, a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and a law professor who is director of the Indigenous Law and Policy Center.
Fletcher agrees, however, that establishing the rights of manoomin as a legal entity in tribal court is a sound strategy.
“Those rights likely would not be recognized on their own in state or federal court; this suit may be a valuable exercise,” Fletcher said.
Attorneys chose to file the suit in White Earth’s tribal court as a means to quickly get the case heard in federal court. Tribal court civil cases involving non-Natives are permitted by consent of the defendant.
Legal scholars say that in this case, the state government would typically seek to have the case removed to the federal courts.
Bibeau said that the Minnesota Department of Natural Resources has already asked to file a motion to dismiss for lack of jurisdiction in the case. Although states and their agencies have their own sovereign immunity from lawsuits, Bibeau thinks that the department won’t be able to dodge the suit even if federal courts return the case to tribal court. The key is asking for a declaratory judgment and injunctive relief rather than monetary damages.
“I don’t think the state has immunity from declaratory judgment,” Bibeau said.
A declaratory judgment declares the rights of the plaintiff without any specific action or award for damages. Injunctive relief restrains a party from engaging in certain actions or requires them to do the actions in a certain way.
“I think that declaratory relief is within the boundaries of tribal court,” Bibeau said.
After the tribal court issues its order, regardless of the state’s participation, it will have created case law to which the federal court can refer when deciding to hear the case or return it to tribal court.
Manoomin or wild rice is more than food for Ojibwe; it conveys culture and tradition. 2020. (Photo by Mary Annette Pember)
“I don’t think anybody has tried to sue a state from a tribal court but I don’t think there’s any federal statute against it,” Bibeau said.
“They (the DNR) won’t be able to stop the tribal court order. When we go to federal court based on the simplicity of water and wild rice, we can go a long way because we already have those rights as a sovereign nation,” he said.
Either scenario, according to Bibeau, is a win for plaintiffs.
Looking ahead
Bibeau’s legal strategy, however, is not without pitfalls.
Treaties signed between the Ojibwe and the federal government in 1837 and 1854 guaranteed tribes the right to hunt, fish and gather on ceded lands. The 1855 treaty or Treaty of Washington, however, conspicuously lacks language spelling out this right. The bulk of the Line 3 pipeline runs through 1855 treaty lands.
In 2019, the Minnesota Court of Appeals ruled in favor of the state regarding 1855 treaty rights to hunt, fish and gather on ceded lands. Two Ojibwe men were cited by the state for illegally taking fish from Gull Lake located on off-reservation lands in the 1855 Treaty area. One judge, however, offered a dissenting opinion in the case saying that rights apply to treaties as the Indians at the time would have understood them.
Bibeau represented one of the defendants in this case. “There is nothing in the 1855 Treaty that relinquished rights to hunt, fish and gather on ceded lands,” Bibeau said.
This is known as the reserved rights doctrine; treaties describe the specific rights tribes gave up, not those they retain. In many cases, the federal court has interpreted treaties using the reserved rights doctrine.
The elements of White Earth’s lawsuit that depend on rights to hunt, fish and gather on ceded lands within the 1855 Treaty area are contingent on these rights being affirmed. For instance, plaintiffs claim that the state deprived them of their civil rights by charging them with trespass and other crimes as they protested Line 3 construction; they argue that they were lawfully engaged in exercising their treaty rights.
Minnesota treaty map. Courtesy Mitchell Hamline School of Law
Establishing that the 1855 treaty should be interpreted to include hunting, fishing and gathering rights on ceded lands could be a challenge, according to treaty scholars. At least one scholar, who preferred to be quoted anonymously, cautioned that each treaty is different.
Although Warner agreed that establishing treaty rights in this case might not be an easy argument, it would be consistent with existing Indian treaty law.
“Tribes have been having a lot of success in the current Supreme Court; all of the cases relying on treaty rights have been successful,” Warner said.
She pointed to the McGirt case in Oklahoma and the Boldt decision in Washington.
Most of these decisions have been led by Supreme Court Justice Neil Gorsuch. Although considered a conservative, Gorsuch has demonstrated a keen understanding and appreciation of tribal sovereignty and treaty rights expressing respect for the reserved rights doctrine. During his tenure, Gorsuch has ruled in favor of important treaty rights cases such as Herrera v. Wyoming, rejecting past theories of state sovereignty and Washington State Department of Licensing v. Cougar Den affirming the state’s obligations to tribes. Gorsuch served as federal judge on the 10th U.S. Circuit Court of Appeals where he gained extensive experience in Indian law.
“The interesting thing would be if White Earth’s right to nature claim could be incorporated into or run parallel to a treaty right,” Warner said.
The release of the UN’s climate report alongside White Earth’s lawsuit could be auspicious for both treaty rights claims and the rights of nature, according to Warner.
“The urgency of the UN findings make this litigation and advocacy work so much more important now because we literally have a window of time in which to make changes,” Warner said.
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Sending you best wishes from the Line 3 frontline in Minnesota. I’m encouraged to report that nearly 30 high-profile national lawmakers have responded to grassroots pressure and sent a joint letter to President Biden. It urges the White House to ensure a full environmental assessment of the Line 3 tar sands pipeline, which is damaging sensitive wetlands in the midst of the ever-worsening climate emergency. We on the frontlines are grateful we’re being heard. Our team is doing all we can to protect our sacred homelands — and your support is essential.
Please give to lift up our #StopLine3 resistance. We need food, fuel, equipment, and supplies to remain effective. We now have just a matter of weeks to convince the Biden administration to end the desecration of our lands and waterways. We won’t go away — but this pipeline must. Help us stay in its path every single day.
Lakota Law reached out to lawmakers it has relationships with to sign onto the Biden letter, and the progress in D.C. is partly a result of all the direct action occurring here in Minnesota. Just today, we at Camp Migizi led a march on the Army Corps of Engineers building in Duluth, Minnesota. Lakota Law co-director and lead counsel Chase Iron Eyes and more than 300 water protectors joined us in delivering a strong message of resistance.
Today’s direct action exemplifies the growing partnership between my Anishinaabe People and the Lakota who have come to stand with us. As expected, the police reacted aggressively, even detaining one Indigenous woman so forcefully that we felt it necessary to shut down a nearby bridge in response.
Next, on Saturday, we’re helping organize and publicize a direct action in D.C. In tandem with allied groups and influencers, Camp Migizi and Lakota Law will deliver more than 127,000 #StopLine3 petitions to Biden, hold a sacred ceremony, and engage with our fellow activists at the National Museum of the American Indian.
I want you to know that, even as we — and so many in the world — grapple with one existential crisis after another, there is much reason for hope. We must stay active and vigilant!
Miigwech — thank you for your solidarity with our Indigenous nations. Taysha Martineau Via the Lakota People’s Law Project
REGINA, Saskatchewan (AP) — A First Nation in southern Saskatchewan said Wednesday that it has discovered hundreds of unmarked graves at the site of another former residential school for Indigenous children.
A statement from the Cowessess First Nation and the Federation of Sovereign Indigenous First Nations, which represents Saskatchewan’s First Nations, said that “the number of unmarked graves will be the most significantly substantial to date in Canada.”
Last month the remains of 215 children, some as young as 3 years old, were found buried on the site of what was once Canada’s largest Indigenous residential school near Kamloops, British Columbia.
Cowessess Chief Cadmus Delorme and Chief Bobby Cameron of the federation planned to hold a news conference Thursday to provide more details about the new find at the Marieval Indian Residential School, which operated from 1899 to 1997 where Cowessess is now located, about 87 miles east of Regina, the capital of Saskatchewan.
From the 19th century until the 1970s, more than 150,000 First Nations children were required to attend state-funded Christian schools as part of a program to assimilate them into Canadian society. They were forced to convert to Christianity and not allowed to speak their native languages. Many were beaten and verbally abused, and up to 6,000 are said to have died.
The Canadian government apologized in Parliament in 2008 and admitted that physical and sexual abuse in the schools was rampant. Many students recall being beaten for speaking their native languages; they also lost touch with their parents and customs.
Indigenous leaders have cited that legacy of abuse and isolation as the root cause of epidemic rates of alcoholism and drug addiction on reservations.
As we enter the dog days of August, I think it’s fair to say that 2021 has become a year for recognition and reckoning. Of course, Native People grow up with a heightened understanding of the genocide on which the U.S. was founded. Today, I want to share a little more of that perspective with you.
As an ally integral to our movement for justice, your willingness to engage with hard truths is appreciated. You can help us spread the word and find a better way forward. Today, as part of this process, I ask you — if you can stomach it — to watch this special report about the Hiawatha Indian Insane Asylum from prominent South Dakota news organization KELO.
Hiawatha was a horrific place, located right here in South Dakota — something that should surprise nobody. Its reputation among Native People was so bad that the threat of being sent there was used as a deterrent for children who misbehaved at boarding schools. As some of the keepers of this story mention in their interviews with KELO, it housed people from many tribal nations, and once you went in, you were very unlikely to come out.
It’s hard to find an “insane asylum” with a good reputation. But of course, the conditions at the one that impounded Native folks were far worse than most. Most of those sent to Hiawatha were anything but “crazy.” As my colleague, Chase Iron Eyes, put it earlier today, many of these relatives were spiritually gifted. Others probably just had too much fighting spirit for their own good.
I know this is a heavy topic, and I thank you for reading. We are living in troubled times, and it’s only with your attention that we can avoid making the same mistakes again and leave a more equitable world to our future generations.
Wopila tanka — my gratitude for being on this difficult journey with us. You’re making things better! Madonna Thunder Hawk Cheyenne River Organizer The Lakota People’s Law Project
Water is Life 