By: Jens Camp
The United States has repeatedly abandoned its duty to Tribes—not just as a trustee but also as a world power—to recognize and protect tribal sacred sites and their homelands from the unwarranted, devastating natural resource exploitation that harm tribal citizens.[1] Tribal communities across the United States have suffered some of the cruelest mistreatment known to the human race at the hands of U.S. officials.[2] The United States government’s facilitation of the genocide of tribal nations by way of disease, murder, and child abuse stain this nation’s history, and rightfully so.[3] In more recent years, the human rights violations that the United States committed against tribal communities has largely taken the form of acquiescence to the private sectors demand for natural resource development in Indian Country.[4] However, a movement across the globe to recognize the personhood of nature (“environmental persons”)—including specific natural objects, like mountains and rivers—might change this cycle of mistreatment.
For those unfamiliar with the concept of legal personhood and how it may be applied to natural objects, Christopher D. Stone provides a great summary of the subject in his piece, Should Trees Have Standing—Toward Legal Rights for Natural Objects.[5] Stone argues that in order for a natural body to hold legal rights as a person, the legal system must: (1) allow the natural object to initiate legal actions on its own behalf; (2) consider the injury to the natural object itself; and (3) allow remedies that necessarily benefit the natural object.[6] One of the main obstacles environmental groups and other experience when attempting to protect natural objects is standing.[7] Particularly, these groups and/or entities have trouble proving that they suffered “an injury in fact.”[8] The recognition of environmental persons, as defined by Stone and various other groups now incorporating the concept into their legal systems, effectively solves the standing problem by granting these objects legal rights as persons.[9]
It should be noted that the United States judicial system has never recognized the personhood of nature or any particular natural object.[10] However, in a dissenting opinion in Sierra Club v. Morton, Justice Douglas thought that the concept of recognizing the right of nature to have standing—i.e. personhood—should permit the Sierra Club to bring suit.[11]
Outside of the United States, the movement toward the recognition of the personhood of nature and natural objects—sometimes referred to as environmental personhood—is growing and has largely been spurred by indigenous peoples. New Zealand’s government, for instance, has recognized the personhood of two natural objects considered sacred by the Maori people: (1) the Whanganui River and (2) the forest of Te Urewera.[11] Similarly, the governments of Ecuador and Bolivia, have also recognized the rights of nature.[12] Now, Indian Tribes are starting to follow this path led by others indigenous peoples from across the globe to recognize the right of nature—or particular subsects of nature—to have its day in court.
On October 20th, 2017, the Ponca Tribe of Oklahoma (“Ponca Tribe”) was one of the first tribes to recognize the rights of nature in response to environmental justice issues on its reservation.[13] The Ponca Tribe have found that fracking nearby their reservation has caused not only an unprecedented number of earthquakes “in a state that was virtually earthquake.”[14] Further, the Ponca believe that fracking has also has led to greater rates of disease likely stemming from the discharge of fracking waste water into groundwater sources the Tribe relies on for its drinking water.[15] Casey Camp-Horinek, a councilwoman of the Ponca Tribe, in a statement regarding the tribe’s recognition of the rights of nature, announced,
Our Tribe has banned fracking and injection wells on our land, and in 2018, we took the historic step of writing a statute to recognize the Rights of Nature. This seeks to make cultural and legal change to the way humanity ‘sees’ nature—aligning human laws with the natural laws of Mother Earth, and alignment with indigenous cosmology that places humans as a part of the natural world, not as owners of it.[17]
Nearly two years later, the Yurok Tribe announced its decision to recognize the Klamath River Basin as an environmental person.[18] Much like the Ponca Tribe, the Yurok Tribe recognized the rights of the Klamath River Basin pursuant to the tribe’s traditional, kin relationship with nature.
One question that tribes should consider when granting natural objects personhood is whether tribal recognition of personhood will be recognized by non-tribal jurisdictions (i.e. state and federal courts) because tribes generally lack jurisdiction over non-Indian activities both inside and outside their reservation boundaries.[19] Additionally, tribes should consider alternative means of acquiring non-tribal recognition of the personhood of natural bodies. For instance, tribes could pursue state and federal statutory recognition of their environmental persons, which allow application of tribal law and grant tribes guardianship to represent those environmental persons interests in litigation.[20] Alternatively, tribes should also consider implementing other already available avenues of advancing the protection of their lands and waters, like taking primacy over Clean Water Act (“CWA”) jurisdiction.[21] However, even with the availability of other remedies, tribal interests in the protection of their sacred sites, and even the health of their people, has been subject to overriding federal interests in economic development so long federal agencies comply with federal law.[22] Thus, tribal efforts in recognizing environmental persons under their own law could very well be a valid solution to the protection of tribal lands and waters, especially when Congress and the Courts has repeatedly failed to adequately address those needs.
The United States will never erase the stain of its colonial legacy from the memory of tribal people, but it now has the unique opportunity to pave a brighter path and further tribal relations by recognizing the sovereign right of tribes to define and bring suit on behalf of environmental persons.
Works Cited
[1] The Navajo Nation, for instance, is still suffering, and in some instances yet to receive compensation, from the federal government’s practice of recruiting Navajo men to mine uranium within reservation boundaries without giving them any warning of the impacts of radiation poisoning on their health. Keith Schneider, A Valley of Death for the Navajo Nation Uranium Miners, N. Y. Times, May 3, 1993, at A1.
[2] See United States ex. rel. Standing Bear v. Crook, 25 F.Cas. 696, 698 (C.C.D.Neb. 1879) (explaining how, according to tribal testimony, federal efforts to remove the Ponca Tribe from its homeland resulted in the deaths of 158 tribal members).
[3] Call to Begin Education and Healing From Historical and Intergenerational Trauma, Nat’l Cong. of Am. Indians (2014), http://www.ncai.org/resources/resolutions/call-to-begin-education-and-healing-from-historical-and-intergenerational-trauma (explaining that between 1869 and the 1960s, over 100,000 American Indian children were forcibly removed from their homes to federally funded boarding schools and school faculty subjected many of these children were subject to physical, sexual, and psychological abuse).
[4] This trend has become especially apparent since the Trump Administration took office and has begun reversing policies that have served to protect pristine natural sites located near or within tribal lands from natural resource exploitation, like the Arctic National Wildlife Refuge. Matthew N. Neuman & Wesley J. Furlong, Arctic National Wildlife Refuge, Native Am. Rights Fund (last visited Feb. 16, 2020), https://www.narf.org/cases/arctic-national-wildlife-refuge/.
[5] See generally Christopher D. Stone, Should Trees Have Standing—Toward Legal Rights for Natural Objects, S. Cal. L. Rev. 450 (1972).
[6] Id. at 458.
[7] Matthew Miller, Environmental Personhood and Standing for Nature: Examining the Colorado River Case, 17 U. N.H. L. Rev. 355, 363-66.
[8] See id. at 365 (citing to Lujan v. Defenders of Wildlife, 504 U.S. 555, 566 (1990)).
[9] This does not necessarily mean that trees and rivers will have the same rights as human beings but rather, much like corporations, they will be able to allege injuries “in fact” that satisfy constitutional standing requirements. Stone, supra note 5, at 457.
[10] See, Sierra Club v. Morton, 405 U.S. 727, 741-42 (1972) (J. Douglas dissenting).
[11] Id.
[12] Gwendolyn Gordon, Environmental Personhood, 43 Colum. J. Env’l. L. 49, 56 (2018). It should be noted that the movement to recognize the rights of nature and the personhood of natural objects is not a purely indigenous phenomenon. In fact, American, non-indigenous environmental groups like the Community Environmental Legal Defense Fund (“CELDF”) have played a large role in both drafting laws for these indigenous groups and non-indigenous groups alike. Id. at 58. However, the longstanding beliefs and values of many indigenous groups recognizing the humans are not separated from nature but rather are kin—much like people—long outdates the CELDF and other non-indigenous efforts in this field. See From the Frontlines, Earth Justice (July 8, 2019) https://earthjustice.org/features/photos-indigenous-people-from-the-frontlines.
[13] Gordon, supra note 12, at 53.
[14] Ponca Nation of Oklahoma to Recognize the Rights of Nature to Stop Fracking, Int’l Outcry (Oct. 31, 2017), https://intercontinentalcry.org/ponca-nation-oklahoma-recognize-rights-nature-stop-fracking/.
[15] Id.
[16] Id.
[17] From the Frontlines, Earth Justice (July 8, 2019), https://earthjustice.org/features/photos-indigenous-people-from-the-frontlines.
[18] Tribal Council Passes Historic Resolution: Tribal Resolution Establishes Legal Rights for the Klamath River, Yurok Today, 3 (May 2019), http://www.yuroktribe.org/documents/Yurok_May_2019_newsletter_WEB.pdf (explaining that the “Klamath River and her tributaries” are considered “family” to the Yurok Tribe) (quoting Toby Vanlandingham, the Weitchpec District Representative on the Yurok Tribal Council).
[19] Montana v. United States, 450 U.S. 544, 565-66 (1981); see Nevada v. Hicks, 533 U.S. 353, 359-60.
[20] Tribes could use water settlements, for example, as a platform to gain federal recognition of their environmental persons by packaging recognition of that personhood status and—if provided by tribal law—tribal guardianship of that environmental person into the settlement agreement. Some tribal water rights settlements, like the Snake River Water Rights Settlement Act of 2004, have provided for wildlife habitat restoration. See Indian Water Rights Settlements, Congressional Research Service, 2 (Apr. 16, 2019).
[21] Tribes, like states, can assume primacy over CWA jurisdiction. 33 U.S.C.A. § 1377(e). By claiming primacy over CWA jurisdiction, tribes can set more stringent water quality standards on upstream users than federal, and even state, regulations mandate. City of Albuquerque v. Browner, 97 F.3d 415, 426 (10th Cir. 1996). Tribes also have had success using CWA primacy to protect their sacred sites. Id. at 428-29 (explaining that tribal ceremonial site designation did not violate establishment clause because the Environmental Protection Agency’s approval of the tribe’s water quality standards was tied to a secular purpose).
[22] See Standing Rock Sioux Tribe v. United States Army Corps of Engineers, 255 F. Supp.3d 101, 144 (D. D.C. 2017).
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