From Trees’ Rights to Treaty Rights: A Brief Analysis of Rights of Nature Enforcement
Elise Longley
In 1972, legal scholar Christopher Stone published his essay “Should Trees Have Standing?” introducing the concept of rights of nature to the Western legal system.[1] Shortly after Stone’s essay was published, the Supreme Court in Sierra Club v. Morton answered his question with a definitive “no.” However, the Sierra Club dissents of Justices Douglas and Blackmun made it clear that the discussion on rights of nature was far from over.[2] Justice Douglas pointed out that Stone’s rights of nature proposal was not as radical as it seemed.[3] After all, he reasoned, a river could appear in court just as non-living entities like ships or corporations do.[4] Similarly, Justice Blackmun stressed the need to be open minded on environmental standing because “environmental cases are simply different. They are more urgent and more extreme than other cases.”[5]
Today, more than fifty years after the publication of “Should Trees Have Standing?” and Sierra Club v. Morton, the urgency and extremity of environmental cases is more pressing than ever. Perhaps, in light of this urgency, the concept of rights of nature is now poised to enter mainstream legal theory.[6] Ecuador and Bolivia have recognized rights of nature in their constitutions, and a number of countries, including the U.S., have acknowledged these rights to some degree through court cases and local legislation.[7] So far, very few cases have been filed to enforce these rights.[8] However, the limited case law provides valuable insight into the future of rights of nature litigation and suggests that the rights of nature laws best positioned for enforcement are those passed by tribal governments.
One of the first U.S. rights of nature enforcement case took place in Orange County, Florida.[9] In 2020, Orange County voters granted a collection of waterways the legal right “to exist, flow, be protected from pollution, and maintain a healthy ecosystem.”[10] Shortly after passing the law, Wilde Cypress Branch v. Hamilton was filed to enforce those rights, which were allegedly violated by a residential developer’s permit to build on over 100 acres of wetlands. The primary plaintiffs in the case were the waterways themselves.[11] Unfortunately, the court found that Orange County’s rights of nature law was preempted by Florida’s Clean Waterways Act Statute, which explicitly prohibits a “local government regulation” from “recogniz[ing] or grant[ing] any legal rights to a plant, an animal, a body of water, or any other party of the natural environment that is not a person or political subdivision.”[12] The case was therefore dismissed on appeal in 2024.[13]
A subsequent U.S. rights of nature enforcement case took place in tribal court.[14] In December of 2018, the White Earth Nation enacted a resolution codifying the Rights of Manoomin.[15] Manoomin is a sacred wild rice that has deep cultural and historical significance to White Earth and other Anishinaabeg people.[16]The Rights of Manoomin resolution was the first ever grant of legal rights to a plant species.[17] The law acknowledged manoomin’s inherent right to “exist, flourish, regenerate, and evolve, as well as inherent rights to restoration, recovery, [and] preservation.”[18]
In 2021, White Earth filed a claim against the Minnesota Department of Natural Resources (DNR) to enforce the Rights of Manoomin resolution.[19] The complaint came after the DNR granted Enbridge a permit that increased their permitted Line 3 pipeline water usage to 5 billion gallons of public ground and surface water.[20] White Earth worried that this massive withdrawal of water would threaten the survival of manoomin, and they sought injunctive relief to nullify the permit.[21] Federally recognized tribes in the United States govern themselves under a different legal framework than that of state or municipal governments[22] and have two primary advantages when it comes to rights of nature enforcement – both which strengthened the cause of action in Manoomin.[23]
The first advantage is tribal treaty rights. White Earth is one of six bands that make up the Minnesota Chippewa Tribe.[24] In the 1800s, White Earth and the rest of the Minnesota Chippewa Tribe ceded land to the federal government through a number of treaties in exchange for usufructuary rights, which included “the privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lake included in the territory ceded.”[25] The Manoomin complaint relied specifically on the 1837 and 1855 treaties granting them the right to harvest manoomin on all ceded territories, not just on the reservation.[26] This argument had the potential to expand the application of the Rights of Manoomin resolution.
The second advantage federally recognized tribes have in enforcing rights of nature is tribal sovereign authority.[27] Indian nations are not bound by most state or local laws, so rights of nature laws passed by tribal legislatures are immune to state law preemption.[28] This protects tribal rights of nature laws from suffering the fate of the law at issue in Wilde Cypress Branch.
Tribes’ sovereign authority generally does not extend to non-members, but in Montana v. United States, the Supreme Court set out two important exceptions.[29] One of these Montana exceptions is that Tribal authority may extend to non-members whose conduct threatens or directly affects “the political integrity, the economic security, or the health or welfare of the tribe.”[30] White Earth relied on this second exception to establish jurisdiction for the Manoomin case.[31] They argued that the tribal court had jurisdiction over the DNR’s off-reservation activities because those activities directly affected the “welfare of the tribe.” Unfortunately, the White Earth appellate court decided that the Montana exception only applied to non-members’ activities on the reservation itself.[32] The court therefore dismissed the case for lack of jurisdiction.[33]
Despite the disappointing result in Manoomin, the lead attorney, Frank Bibeau, remains confident in the ability of tribes to protect natural resources through enforcing rights of nature laws.[34] Bibeau predicted that tribes might have more success by turning away from the rights of Manoomin and towards the rights of fish.[35] Bibeau’s logic is that fish and manoomin are both common “treaty foods,” but that fish are more well-known to the general public.[36] In 2022, Bibeau’s prediction proved to be true: the Sauk-Suiattle Indian Tribe pursued a rights of nature claim on behalf of “Tsuladx” (salmon in the Lushootseed language), that resulted in the City of Seattle agreeing to a fish passage program.[37] Although the City of Seattle settled before the court reached the merits of the rights of nature claim, this case highlights the ability of tribes to pursue claims grounded in rights of nature – and the fact that these claims can lead to successful outcomes.[38]
Neither Wilde Cypress, Manoomin, nor Sauk-Suiattle were definitive “wins” for rights of nature enforcement. However, each of these cases brought courts a little closer to reaching the merits of rights of nature claims. The implications of tribal sovereign authority and treaty rights must be considered in seeking successful legal pathways to enforce rights of nature legislation. Ultimately, if our legal system fails either to start enforcing these rights, or to evolve some alternative avenue for environmental claims, then “the environment upon which human-kind depends for existence may be so deleteriously affected that there will be no need for a legal system at all.” [39]
[1] Christopher D. Stone, Should Trees Have Standing–Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450, 450 (1972)
[2] Tom. R. Moore, Book Review, Should Trees Have Standing? Toward Legal Rights for Natural Objects, 2 Fla. St. U. L. Rev. 672, 672 (1974).
[3] Scott W. Stern, Standing for Everyone: Sierra Club v. Morton, Supreme Court Deliberations, and a Solution to the Problem of Environmental Standing, 30 Fordham Env’t. L. Rev. 21, 25 (2019).
[4] Id.
[5] Id. at 28.
[6] Jonathan Watts, Could 2024 be the year nature rights enter the political mainstream? The Guardian (Feb. 17, 2024), http://www.theguardian.com/environment/2024/jan/01/could-2924-be-the-year-nature -rights -enter-the-political-mainstream.
[7] Rights of Nature Timeline, Center for Democratic and Environmental Rights, https://www.centerforenvironmentalrights.org/timeline (last visited Mar. 27, 2024).
[8] Guillaume Chapron et al., A Rights Revolution for Nature, 363 The Science Magazine 1392, 1393 (2019).
[9] Rights of Nature Timeline, supra note 7.
[10] Wilde Cypress Branch v. Hamilton, No. 6D23-1412, 2024, WL 203428, at *1 (Fla. App. 6 Dist. Jan. 19, 2024).
[11] Id.
[12] Id.
[13] Id.
[14] Vanessa Racehorse, Indigenous Influence on the Rights of Nature Movement, 38 Nat. Resources & Env’t 4, 5 (2023).
[15] Kekek Jason Stark, Bezhigwan Ji-Izhi-Ganawaabandiyang: The Rights of Nature and Its Jurisdictional Application for Anishinaabe Territories, 83 Mont. L. Rev. 79, 89 (2022).
[16] Racehorse, supra note 14, at 6.
[17] Rights of Nature Timeline, supra note 7
[18] Stark, supra note 15 at 89.
[19] Racehorse, supra note 14, at 6-7.
[20] Id.
[21] Minn. Dep’t of Nat. Res. v. Manoomin, No. AP21-0516 (White Earth Band of Ojibwe Ct. App. Mar. 10, 2022)
[22] Racehorse, supra note 14, at 6.
[23] Id. at 7.
[24] Id.
[25] Treaty with the Chippewa, Chippewa Nation-U.S., July 29, 1837, 7 Stat. 536.
[26] Racehorse, supra note 14, at 7.
[27] Id. at 7.
[28] Matthew L.M. Fletcher, American Indian Tribal Law 1 (2d ed. 2020).
[29] Stark, supra note 15 at 97-98.
[30] Id.
[31] Racehorse, supra note 14, at 7.
[32] Minn. Dep’t of Nat. Res. v. Manoomin, No. AP21-0516 (White Earth Band of Ojibwe Ct. App. Mar. 10, 2022).
[33] Id.
[34] Aric Sleeper, How a Tribal Rights Lawyer is Winning Back the Rights of Nature, Resilience (May 11, 2023) https://www.resilience.org/stories/2023-05-11/how-a-tribal-rights-lawyer-is-winning-back-the-rights-of-nature/.
[35] Id.
[36] Id.
[37] Racehorse, supra note 14, at 8.
[38] Id.
[39] Moore, supra note 2 at 675.