The Rights of Nature Movement
The rapidly growing rights of nature movement recognizes that elements of nature, including whole ecosystems, plants, animals, and natural landscapes such as mountains, possess legal rights. Many trace the idea of the rights of nature within the U.S. legal framework to legal scholar Christopher Stone, who first analyzed the concept in his 1972 article Should Trees Have Standing? Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972). Stone originally argued that courts should grant nonhuman ecosystems standing as plaintiffs in court, laying the foundation for the burgeoning movement to grant legal rights and legal personhood to elements of nature. Nevertheless, the same year Stone published Trees, the Supreme Court in Sierra Club v. Morton, 405 U.S. 727 (1972), held that nature does not have standing under the Administrative Procedure Act, signaling a reluctance of federal courts to support this form of legal rights and personhood for nature, despite Trees’ notable citation in the dissent.
Although litigation to assert the rights of nature in federal forums has not yet proven particularly fruitful, rights of nature approaches still exist in the United States. In particular, both tribes and municipalities have enacted—with varying long-term success—rights of nature laws.
For centuries prior to the modern rights of nature movement, many traditional Indigenous conceptions of nature were rooted in a respect for the agency of nature as a living being. Although it is impossible to enumerate a uniform environmental ethic of Indigenous peoples, Indigenous peoples’ recognition of the rights of nature were often part of customary practices. In 2002, the Navajo Nation’s codification of Diné Natural Law was the first instance of a written codification of rights of nature principles, which were adopted as guidance for statutory interpretation without creating substantive rights or legal personhood for nature. Diné Natural Law, in relevant part, declares that “All creation, from Mother Earth and Father Sky to the animals, those who live in water, those who fly and plant life have their own laws and have rights and freedoms to exist.” Navajo Nation Code, tit. I, § 205 (2010); Navajo Nation Council Res., No. CN-69-02 (2002).
At least five other tribes in the United States have since enacted substantive rights of nature laws, including: the White Earth Band of Ojibwe, Resolution No. 001-19-009 (Dec. 31, 2018); the Ponca Tribe of Indians of Oklahoma, A Resolution Recognizing the Preexisting Ponca Tribal Law of Nature (2018); the Nez Perce Tribe, Resolution SPGC20-02 (June 20, 2020); the Yurok Tribe of California, Resolution No. 19-40, Resolution Establishing the Rights of the Klamath River (May 9, 2019); and the Menominee Indian Tribe of Wisconsin, Resolution No. 19-52, Recognition of the Rights of the Menominee River (Jan. 16, 2020). The Ho-Chunk Nation’s General Council has also approved an amendment to their tribal constitution that would establish that “[e]cosystems, natural communities, and species within the Ho-Chunk Nation territory possess inherent, fundamental, and inalienable rights to naturally exist, flourish, regenerate, and evolve,” Ho-Chunk Nation Res. 09-15-18C, Proposed Resolution to Amend the Constitution of the Ho-Chunk Nation (2018), but further legal action is required for formal adoption into the Nation’s Constitution.
Since 2006, local municipalities have also enacted rights of nature laws that bestow legal personhood on a number of landscapes, rivers, and animals. The first U.S. municipality to implement a rights of nature law was Tamaqua Borough, Pennsylvania, when the town banned land application of sewage sludge and acknowledged natural communities and ecosystems as “persons” for enforcement purposes. Borough of Tamaqua, Pa., Code, art. VI, § 260–61 (adopted by Ordinance No. 612 of 2006). This ordinance has not been challenged and remains part of the town’s Code, but similar municipal ordinances seeking to grant legal personhood and rights to nature have been successfully challenged in court. These include the Lake Erie Bill of Rights, which the residents of Toledo, Ohio, adopted in 2019 to give legal standing to the lake. Toledo, Ohio, Mun. Code ch. XVII, §§ 253–260 (2020). Soon after its adoption, a federal court found the Bill of Rights to be unconstitutionally vague and outside the scope of the municipal government’s powers. Drewes Farms P’ship v. City of Toledo, 441 F. Supp. 3d 551, 558 (N.D. Ohio 2020), appeal dismissed, 2020 WL 3619934 (6th Cir. Apr. 14, 2020) & 2020 WL 3620205 (6th Cir. May 5, 2020).
This outcome is comparable to the first ever rights of nature enforcement case in the United States, where waterways and residents in Orange County, Florida, filed Wilde Cypress Branch v. Beachline S. Residential, LLC, No. 2021-CA-004420-O (Fla. Cir. Ct. Apr. 26, 2021). Specifically, environmental advocates sued on behalf of local waterways, including Wilde Cypress Branch, arguing that a residential developer’s permit to build on over 100 acres of wetlands violated the rights of the waters to “exist, flow, be protected against pollution and maintain a healthy ecosystem” under an Orange County ordinance titled the Right to Clean Water Initiative. Amended Complaint at 18–20, Wilde Cypress Branch v. Beachline S. Residential, LLC, No. 2021-CA-004420-O (Fla. Cir. Ct. Apr. 26, 2021). Similar to City of Toledo, the court found that the municipal government did not have the power to enact its rights of nature law because Florida’s Clean Waterways Act explicitly preempted local rights of nature laws. Order Granting Defendant’s Motion to Dismiss, Wilde Cypress Branch v. Beachline S. Residential, LLC, No. 2021-CA-004420-O (Fla. Cir. Ct. July 6, 2022).
While laws acknowledging environmental personhood have faced numerous court challenges in the United States, often focusing on the interplay of the powers of federal, tribal, state, and local governments, rights of nature laws have continued to blossom globally in the past 15 years with the advocacy and influence of Indigenous communities. The next part examines these developments.
Indigenous Involvement in the Global Rights of Nature Movement
Rights of nature laws have been successfully implemented in other countries with large Indigenous populations, such as Ecuador, Bolivia, Colombia, Uganda, Bangladesh, India, and New Zealand. In Ecuador, the 2008 Constitution contains a chapter on the Rights of Mother Earth (Pacha Mama), which provides that Nature, or Pacha Mama, “has the right to integral respect for its existence” and “the right to be restored.” Constitución De La República Del Ecuador [Constitution of Ecuador], Oct. 20, 2008, tit. II, ch. 7, arts. 71, 72. Scholars have noted how the political presence and advocacy of Indigenous communities were influential in the adoption of this “momentous” rights of nature language and “can be evinced in the equation of Nature with the more complex Andean concept of Pacha Mama.” See Erin O’Donnell et al., Stop Burying the Lede: The Essential Role of Indigenous Law(s) in Creating Rights of Nature, 9 Transnat’l Env’t L. 11–12 (2020). Under the leadership of an Indigenous president, Evo Morales, Bolivia similarly enacted the Law of the Rights of Mother Earth, which provides that Mother Earth has the right to life, to the diversity of life, to water, to clean air, to equilibrium, to restoration, and to pollution-free living. Ley de Derechos de la Madre Tierra [Law of the Rights of Mother Earth], Law 071, art. 7 (Dec. 2010) (Bol.). Bolivia’s constitutional amendments build on the Andean concept of sumaq kawsay (“living well”) and the Andean worldview that deems Pacha Mama as central to all life.
In New Zealand, the Māori have also made significant strides in advocating for the recognition of the rights of natural entities. The New Zealand legislature first granted legal personhood to the Te Urewera Forest in 2014. Te Urewera Act 2014, subpt. 3 (N.Z.) (declaring Te Urewera a legal entity with “all the rights, powers, duties, and liabilities of a legal person”). In 2017, the New Zealand legislature also created a legal personality for both Mount Taranaki and the Whanganui River (“Te Awa Tupua”), making it the first river in the world to be recognized as possessing legal personhood. See Te Anga Pūtakerongo (Record of Understanding for Mount Taranaki, Pouākai and the Kaitake Ranges) (Dec. 20, 2017); Te Awa Tupua (Whanganui River Claims Settlement), Bill 2016 (No. 129-2) (N.Z.). The legal personification of these natural features was the result of negotiations between Māori and the New Zealand government and reflect the Māori’s traditional understanding of the natural world as a living entity. Not only do these natural landscapes now own themselves and have legal standing in court, but the legislation also provides for the local Indigenous Māori to serve as statutory guardians, signaling the important role Indigenous stewardship plays in safeguarding the rights of nature.
In recent years, the U.S. government has also grown increasingly receptive to Indigenous stewardship. See, e.g., U.S. Dep’t of the Interior & U.S. Dep’t of Agric., Order No. 3403, Joint Secretarial Order on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Waters (2021). However, the ability of Tribal Nations in the United States to promote and protect the rights of nature differ markedly from Indigenous groups in other countries, operating under the American legal system’s conception of tribes’ sovereign authority.
Enforcement of the Rights of Nature Under Tribal Law
In the United States, federally recognized tribes govern themselves under a unique legal framework that is separate from state and municipal governments. Tribal Nations are sovereign governments with inherent authority to exercise civil and criminal regulatory and adjudicatory authority over their territory, making them theoretically well-positioned to enact and enforce their own rights of nature laws. However, aspects of tribes’ sovereign powers have been restricted by certain Acts of Congress, treaties, and decisions of the U.S. Supreme Court. Under the Supreme Court case Montana v. United States, tribes’ inherent sovereign powers do not generally extend to the activities of nonmembers, with two exceptions: (1) nonmembers who enter “consensual relationships” with the tribe or its members “through commercial dealing, contracts, leases, or other arrangements” and (2) non-Indians whose conduct threatens or directly affects “the political integrity, the economic security, or the health or welfare of the tribe.” 450 U.S. 544, 565–66 (1981). The second Montana exception is most relevant for the potential enforcement of Tribes’ rights of nature laws against nonmembers.
Despite the potential regulatory and adjudicatory limitations over nonmembers, the sovereign authority of tribes may lead to more successful efforts to enact and enforce rights of nature laws. This jurisdictional framework serves as the backdrop for the growing number of tribes that are actively developing and enacting tribal law that recognizes rights of nature. As noted above, a growing number of tribes have enacted substantive rights of nature laws, and some have crafted laws that are awaiting formal enactment.
In December 2018, the White Earth Band of Ojibwe (White Earth) and 1855 Treaty Authority, an entity that represents the beneficiaries of the 1855 Treaty with the Chippewa, Feb. 22, 1855, 10 Stat. 1165 (1855 Treaty), adopted Rights of Manoomin laws that establish the legal rights of manoomin. Manoomin is a sacred wild rice described as both a “central element of the culture, heritage, and history of the Anishinaabeg people” and “an integral part of the ecosystems and natural communities of [the Tribe’s] traditional lands.” White Earth Band of Chippewa Indians, Resolution No. 001-19-010 (Dec. 31, 2018); see also 1855 Treaty Authority, Resolution No. 2018-05, Resolution Establishing Rights of Manoomin (Dec. 5, 2018). White Earth’s law not only provided manoomin with an inherent right to “exist, flourish, regenerate, and evolve, as well as inherent rights to restoration, recovery, [and] preservation,” but it also provided the manoomin with the authority to enforce those rights.
In June 2021, the Minnesota Department of Natural Resources (DNR) issued a permit to Enbridge for an increased use of up to five billion gallons of public ground and surface water for the Line 3 pipeline project. The Tribe was concerned this withdrawal would impact water levels necessary to the growth and survival of manoomin, which is already threatened by drought conditions. In opposition to DNR’s decision, White Earth filed a complaint against DNR in White Earth Tribal Court, seeking to enforce the rights of manoomin under tribal law and raising other claims rooted in federal laws and treaty rights. Complaint at 1–2, Manoomin v. Minn. Dep’t of Nat. Res., No. GC21-0428 (White Earth Band of Ojibwe Tribal Ct. Aug. 4, 2021). This marked the first claim filed in tribal court to enforce a Tribe’s rights of nature law, and it was also the second-ever rights of nature enforcement case in the United States, after Wilde Cypress Branch.
The Manoomin litigation is, in part, grounded in the treaty rights of White Earth, one of the six current bands that comprise the Minnesota Chippewa Tribe. In exchange for land that the Chippewa Tribe ceded to the federal government in the 1800s, treaties between the Chippewa Tribe and the federal government guaranteed to the Tribe usufructuary rights, specifically the “privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded.” Treaty with the Chippewa, 1837, art. 5, July 29, 1837, 7 Stat. 536. The original Manoomin complaint asserted that under the 1855 Treaty, and the 1837 Treaty, the White Earth Band retained usufructuary rights beyond the reservation boundaries to harvest manoomin on ceded land, and that when the Minnesota DNR granted a water permit for the Enbridge Line 3 pipeline project, that permit impaired or threatened the growth of manoomin. Complaint at 2–6, 10–11, Manoomin, supra. Significantly, the Manoomin complaint sought a declaration that Manoomin possesses the inherent rights established in White Earth’s Rights of Manoomin law. Id. at 11.
Minnesota first contested the Tribe’s jurisdiction in tribal court, then sought an injunction in federal court. Minn. Dep’t of Nat. Res. v. White Earth Band of Ojibwe, No. 0:21-cv-01869-WMW (D. Minn. Aug. 19, 2021). The federal court denied the Minnesota DNR’s motion for a preliminary injunction against the White Earth Band and its tribal court, finding the Tribe and tribal court possess sovereign immunity from suit, and leaving the matter to be adjudicated by the tribal court. Minn. Dep’t of Nat. Res. v. White Earth Band of Ojibwe, No. 21-cv-1869, 2021 WL 4034582, at *2 (Sept. 3, 2021).
On March 10, 2022, the White Earth Band of Ojibwe Court of Appeals found that federal case law constrained the Tribe’s jurisdiction over the matter, specifically relying on Montana’s requirement that a nonmember defendant engage in activities on the reservation to invoke subject matter jurisdiction. Minn. Dep’t of Nat. Res. v. Manoomin, No. AP21-0516, 16-17 (White Earth Band of Ojibwe Ct. App. Mar. 10, 2022). While the tribal court acknowledged that “[t]here is no case that expressly rejects an application of Montana to off-reservation activities that have significant effects within the reservation,” id. at 13–14 (quoting Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001)), the court was more persuaded by precedent that “suggested an underlying assumption that Montana applies to activities on the reservation.” Id. at 14 (citing Philip Morris United States v. King Mt. Tobacco Co., 569 F.3d 932, 938 (9th Cir. 2009)).
Although this decision may be construed to limit the applicability of rights of nature laws to only the activities of members and nonmembers engaged in activities on the reservation, it should be noted that the decision of one tribal court is not binding on another. Other tribal courts may be more receptive to the argument that tribal courts can consider how off-reservation activities impact natural resources within the reservation. A finding in support of this argument could make a tribe’s jurisdiction over nonmembers proper under the second Montana exception when those activities have an on-reservation impact that threatens the health or welfare of the tribe. Additionally, this decision does not foreclose the possibility of tribes exercising jurisdiction over the activities of members and nonmembers on the reservation that violate rights of nature laws and threaten the health or welfare of the tribe. Ultimately, the dispute was not about the ability of the tribe to enact the rights of nature law; rather, it was centered on the scope of the tribe’s jurisdiction to enforce the law off-reservation.
The Manoomin decision is not likely to temper tribes’ strategic efforts to implement and enforce rights of nature laws to safeguard natural resources. Indeed, even in the wake of this decision, other tribes have continued to pursue enforcement of rights of nature laws. On January 6, 2022, the Sauk-Suiattle Indian Tribe filed a complaint in Sauk-Suiattle Tribal Court against the City of Seattle on its own behalf and on behalf of Tsuladxw (“salmon” in the Lushootseed language), alleging that three hydroelectric dams that Seattle City Light constructed on the Skagit River block upstream and downstream passage of several species of migratory fish, threatening the Tribe’s livelihood and well-being. In part, the Complaint recognized that Tsuladxw is a core component of the culture and traditions of the Tribe, as well as “an integral part of the wetland ecosystems.” The Tribe also sought a recognition of the legal rights of Tsuladxw, such as “inherent rights to exist, flourish, regenerate, and evolve,” that necessarily include “the right to pure water and freshwater habitat; the right to a healthy climate system and a natural environment free from human caused global warming impacts and emissions.” Civil Complaint for Declaratory Judgment at 5–6, Sauk-Suiattle Indian Tribe v. City of Seattle, No. SAU-CIV-01/22-001 (Sauk-Suiattle Tribal Ct. Jan. 6, 2022).
After the City of Seattle challenged the Tribe’s jurisdiction in federal court, the U.S. District Court for the Western District of Washington stayed the case “until after the Tribal Court has had a full opportunity to determine its own jurisdiction.” City of Seattle v. Sauk-Suiattle Tribal Court, No. 2:22-cv-142, 2022 WL 2440076, at *4 (W.D. Wash. July 5, 2022) (quoting Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 857 (1985)). Of note, the federal court acknowledged different courts’ analyses of whether the second Montana exception is only applicable to on-reservation activity, concluding the tribal court is best-suited to initially evaluate whether the facts bring a lawsuit within the scope of a Montana exception. Id. at *3. While the case remained pending in the Sauk-Suiattle Tribal Court of Appeals, the City of Seattle ultimately settled the case on April 19, 2023, agreeing to a fish passage program. Press Release, Ctr. for Democratic & Env’t Rts., City of Seattle Settles “Rights of Nature” Case Filed by the Sauk-Suiattle Tribe—Agrees to Create Fish Passage Through Skagit River Dams (May 2, 2023). Although the litigation did not reach the merits, it exemplifies both how tribes remain willing to pursue legal strategies grounded in the rights of nature and how they can reach a successful outcome in doing so.
The Future of Tribal Rights of Nature Laws
To date, Indigenous communities have played a crucial role in ushering forward rights of nature laws both globally and in the United States. Tribal nations possess inherent sovereign powers to enact rights of nature laws, but the full scope of tribal jurisdiction over rights of nature enforcement claims remains yet to be fully explored. The primary challenge for the enforcement of these laws is the jurisdictional limitations that arise from federal common law, particularly Montana. In the Manoomin litigation, the tribal court remained reluctant to exercise jurisdiction over off-reservation activities of nonmembers, despite the potential implications for on-reservation natural resources and the exercise of the Tribe’s treaty rights. As the first case of its kind, its influence on other tribal enforcement actions remains yet to be seen. Regardless, tribes retain sovereign authority to enact rights of nature laws, and a growing number are willing to strategically leverage their sovereign powers to protect the rights of the natural elements.
