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Hello again friends, I'm Jason Edens, your host of Lakeland Currents.

Thanks for joining the conversation today and thanks for your ongoing support of Lakeland Public TV.

In American Jurisprudence, corporations have personhood, basically the same legal standing that you and I enjoy.

However, forests and trees, otters and rivers - do not have those same rights, yet.

In 2018, the White Earth Tribal Council enacted a law that guaranteed the right of manoomin, or wild rice, to exist and flourish, and in August of this year, manoomin, again, wild rice , sued the State of Minnesota to ensure that it had access to the clean water resources that it needs.

Here to help us better understand this groundbreaking "nature's rights legal action," is my guest, Frank Bibeau.

Frank is a lawyer and a band member of the white earth nation.

Frank, welcome to the program, and thank you so much for making time for our conversation.

Thank you, Miigwech.

So, first of all, can you help us all understand the cultural significance of manoomin?

Sure, manoomin (there's prophecies about manoomin,) and visions and dreams and there were, they basically talked about guiding us to where the food grows on the water and so as we worked our way from the east coast through the great lakes and then to here in Minnesota, and wild rice used to even grow all the way over, I think by Green Bay, but ultimately, that's what brought us here to this whole region of Lake Superior and wild rice is the most important significant cultural aspect for the Chippewa and I use the word Chippewa because we have 44 treaties with the United States and they refer to the Chippewa.

A lot of times you hear us called the Ojibwe and then, also, we call ourselves, in our language, Anishinabe, so you'll hear different words and then Congress just calls us all Indians.

Okay, so I'm curious how the rights of manoomin is related to treaty rights.

Since you brought up the treaties, can you help us better understand how this legal action which we'll explore today is related directly to treaty rights?

Sure, interestingly enough, because we have 44 treaties with the United States and it's in part because we're around the Great Lakes and that's where boats could come in, rather than trying to settle and occupy across the lands and so forth.

We had treaties that predated even the formation of the United States and so my favorite treaty starting point for what we're doing is 1825 - 1826, and what that did was it established a boundary from essentially Michigan all the way to North Dakota, saying that the Chippewa had the right to decide who north of the, kind of north of the boundary, and primarily the Lakota, the Sioux south of there, but there was about a dozen tribes that were part of that treaty, and because that treaty was conducted in a place that was so far south for us, we had a ratification session in what is now essentially Duluth at John .. or Jay Cooke State Park and so at that session the treaty resulting from there acknowledged that we still had title to the land, and that we still held jurisdiction and those things were important for a couple of reasons.

One is we hadn't decided to sell any land yet necessarily that the United States wanted to buy and so they were acknowledging that we were the ones who held title and they didn't want to have any struggles between the tribes on who occupied and held what lands, and so that was part of the reason for the boundaries, as well.

and then the, and then the word "jurisdiction", talk about jurisprudence, I mean, that's not an old Indian word, that's a word that non-indians use to tell other non-indians that they have the right to decide.

Well, in order to abrogate that word to remove it from our treaty, Congress would have had to have done that, but they never have, and so, really, our jurisdiction flies over a broad area for hunting, fishing, and gathering.

So in the 1837 treaty, ten years later, there was a lot of land that was acquired in Wisconsin and then in Minnesota and I believe it's Article 5, and it talks about the Chippewa retaining the right to hunt, fish, and gather wild rice (those words appear in the treaty-- wild rice across the lands, the lakes, and rivers of the territory being ceded.

So basically, that means we acknowledge that people are coming into the area - they're going to log it, do other things, but we are going to have to continue to live here - we didn't make reservations in 1837 and a lot of the treaty leaders who were the, in the treaty journals, primarily Flat Mouth and Hole In The Day, they were here, they're from our territory here in the 1855 Leech Lake reservation area, things like that, and so those were the primary people that were negotiating and the primary treaty foods that we were reserving for ourselves was wild rice in the treaty, also maple syrup and fish - because that's who we were - we are called the People of the Falls, that's how the French looked at us.

We would occupy areas where nature would prevent the fish from quickly swimming away from you, or where in the wintertime you would still have open water and where the other animals might have to come for open water.

So when you look at Jay Cooke State Park , you can see why we would have occupied that territory as originally Fond du lac - Fond du lac moved - but it's a beautiful territory, so technically the Chippewa under treaties, under the 1842 treaty, the United States realized that we were really one tribe in how we acted and things like that, and so it talks about all of our lands that had been ceded and all the lands yet to be ceded are held "in common" between the Chippewa of the Mississippi (who we are here in northern Minnesota in this area of Bemidji), and the Lake Superior bands.

So really , that means that we have the rights to hunt, fish, and gather all across Lake Superior, Wisconsin, here in Minnesota, and it goes part way into North Dakota - and so those rights are environmental rights, they're the rights to decide who hunts, and as it turns out, with one of our cases that we had here a few years ago called Square Hook, is the kind of the name for it - it had to do with tribal members who were netting fish and selling them to non-indians off reservation to make trophies and mounts and things or whatever was all going on - and what they discovered was our treaty rights were superior to The Lacey Act, and so, now, we understand that our environmental rights, if we and that's probably as high as it goes, is the environmental rights - and to protect our rights where we hunt, fish ,and gather - those are property rights, that we should be able to use that jurisdiction and so the rights of manoomin is part of the rights of nature movement, and so the rights of manoomin.

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 when you're at a starting point and manoomin, for us, because of the spirituality, it also connects really to that concept of first amendment Freedom of Religion - American Indian Religious Freedoms Act, and so there's other federal protections for that concept because of the spirituality for us, and so when we look at, as you were calling it, "personhood", that's a really a nice way to say it in some ways, except for the legal way sometimes, but we see ourselves as connected to wild rice, as connected to all the animals, and 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.

That's what that law is really about, 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.

We've gotten to a point to where the Pollution Control Agency in particular, you know they "permit" conduct the same as the DNR, they don't "protect" the way that we would like them to.

When you look at Minnesota and the Pollution Control Agency - I think there's over 2000 impacted waterways here in northern Minnesota or across Minnesota, so they have exhausted our resources already that they're supposed to be sharing with us.

We need to step in, and we need to step in "off reservation" as well as "on reservation" to make those protections by using manoomin as our lead plaintiff against the DNR.

It's really made a lot of news and it's gotten a lot of people's attention because if corporations can sue, then why can't wild rice?

One of my attorney friends asked me about that.. he says I get that with the corporations but what about wild rice?

I said, well, the difference is wild rice is alive, but then, ultimately, obviously we harvest it and cook it, so but yeah, right.

Well, I want to break down that very aspect of this effort.

Is this, essentially, the first of its kind legal action in either the state of Minnesota or within the boundaries of the United States?

I mean, has something of this nature ever been adjudicated within the United States?

Not the way we're doing it right now.

There's, there's a path and I've been watching the path develop for the last 20 years since the Mille Lac decision and things like that, and probably the last stepping stone, the thing that helps us the most right now, is a case called "Kodiak" out in, out in the dakotas, and it's an oil case, but what it has to do with is whether or not the scope of tribal sovereignty and tribal court sovereignty over other entities, especially non-indian entities and things like that.

It is the first to be done here in Minnesota that I'm aware of, it's the first to be done for a plant species, period, in the United States and probably North America, and maybe even other places.

A lot of times they're using rights of a river and things like that.

I tried to figure out how I could get the rights of the Mississippi River, where we live up here, because I believe all of it belongs to us already because we are the Chippewas of the Mississippi and our territories cover all of the upper watershed 250, or maybe 300 to the first miles - all the way down to Saint Cloud, and so those resources are supposed to be shared resources with us under the treaties.

Right now fishing is getting tougher, hunting's getting tougher, licenses are going up, things like that, and the DNR doesn't know exactly how to regulate, from what I can see, anymore.

They know how to collect permit fees, and they know how to enforce the laws, but I don't see good regulation going on with regard to the water, in particular, because one of the reasons we had rights of manoomin prepared is because we knew we were going to have to also work against Line 3 and the pipeline, and so really we're trying to protect the water, because water and wild rice are synonymous - they connect, and the aquifers connect, and so, even though the the pipeline fight is over in that sense, and the oil is flowing, we still see that there's a number of frackouts and aquifer breaches - and so we did a flyover, we hired an airplane crew through the White Earth Band, you have to be a government to access the route information and things like that, and they did thermal imaging.

We haven't got the information put together yet but at this point the DNR and the PCA - they're not doing any of this monitoring.

Enbridge has gone home, the no trespassing signs for water protectors are gone, but Ron Terney has been running his drone over there and you can see where a lot of this damage is still occurring, and so my understanding is, the PCA acknowledges at least 28 frackouts, but they don't say what happened to them.

The DNR discovered late in the game, in May, that there was an aquifer breach up at Clearbrook.

There was probably a hundred thousand gallons or more a day coming out.

They still haven't been able to stop that, we had a drought last year, so the DNR issued them a permit, a retroactive permit, in June, that said 5 billion gallons for dewatering because they didn't know what to do and how much water it was going to mean.

The DNR today says there's two other aquifer breeches but they won't tell anybody where those are either because obviously they're not being handled.

They gave a fix-it order to Enbridge, 30 days to fix it.

They couldn't fix it , so we're doing the flyover to target the places that need to be monitored more closely by drones and things like that.

The interesting thing about the flyover and the kind of sensitive equipment is, they informed us that because groundwater is usually 40-45 degrees, the ground is, probably at this point, could have snow on it, 25-30 degrees; that even when a river is open and there's a fracture underneath or a frackout underneath, you can tell by the water temperature being probably 10 or 15 degrees warmer underneath with that thermal imaging equipment.

We're going to be identifying all the places that have been happening like this.

What exactly is a frackout?

Can you define that term for us just to make sure?

Well, a frackout is where , when they're using the horizontal directional drilling, they would go underneath and they would pump in a slurry mix of a compound that makes it thicker than water, so when the drill goes you don't have all this back flow and everything through whatever mechanism they're using to drill.

Ideally, they're looking to drill in a lot more firm kind of a terrain - this isn't firm around here, it's sand , it's gravel, it's marsh, it's musk, you know, so they didn't really , I don't think, understand the concept of where they were and the things to be concerned about, and so, as it drills underneath, and because this is all soft soil, it creates like a hot dog bun or a corn dog, you know, around the pipe, and as it keeps putting pressure on so the drill can keep going - it keeps expanding.

Well, as it creates that void in there, you end up with these excess materials being down there as well.

Now, they've ultimately, they've got the pipes in the crossing but now you've got a void down there that's got whatever those materials are, so they don't disclose them and now with the temperature the way it is you're probably not going to see much happening, but come spring, when you have snow melt and rain, you're going to see these aquifers get recharged in the rivers, and they're going to start pumping these, these same fluids out.

I've been told that this is permanent irreparable damage that's been done to these crossings, and there were 22 river crossings and we're just talking about a few of them right now, so our concern is , you know, what does this mean for us, what has been left behind, so that's the fracout side where it's trying to push through with that liquid and keep things contained, it'll break through.

there's videos, there's videos online that shows where it breaks through in rivers, and you can see the difference in the coloration and what's going on, you can see that there's dead vegetation downstream from these frackouts, the piece of Clearbrook, that's what they refer to as an artesian aquifer, or fen.

That's where all this water is just gushing out.

Right at Bagley is the boundary, essentially, for the Laurentian Divide, and so I'm not sure if that aquifer itself, if there's at least two more breeches, then it could be the same aquifer that crosses underneath the divide.

Just because something's happening on land doesn't necessarily mean that there's two aquifers and they each go north and south.

Sure, right, that makes sense.

So, if it's that positively charged, and so in that sense, Enbridge has now gone, they're out conducting their business and things like that.

The rights of manoomin continues in tribal court, we have oral arguments set up for probably the 20th or 21st coming up in this month, we have oral arguments set up at the 8th Circuit Court of Appeals for December 16th.

When manoomin sued the DNR, the DNR didn't like it 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, and so that's why the federal court said , you know, we can't give you an injunction against having to be in tribal court.

Their laws look like they're put together the right way, you have to go and exhaust your administrative remedies is essentially what they were telling the DNR.

The DNR doesn't want to have to do that, so they've appealed it to the 8th 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, 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 and what I'm seeking, what manoomin is seeking, what the people are seeking, is our consent is required to do any more of this permitting activity.

They're reckless in our sense.

You know, if you've lived here long enough, you know that the largest inland oil spill happened in Grand Rapids, Minnesota in 1991.

They had a big burn off in 2002 at Cohasset, up here at Clearbrook they had people die with the explosions over there.

We just had the Husky Refinery on fire.

Now granted, that wasn't Enbridge, but is Enbridge delivering the oil?

"mm-hmm" you know, their partner?

That's where the oil of Line 3 goes to, is that what you're saying?

Yep.

Interesting.

There's six pipelines that go along the mainline corridor from here all the way to Duluth - it mostly parallels Highway 2.

So Frank, are you representing manoomin, are you actually in court representing manoomin - is that how this works?

Yes.

How did you decide to do that, was this among a number of lawyers or how exactly did this come about?

What was the origin story of you representing manoomin?

Well, there's a fair amount of origin story, it comes down to, I would say, primarily Tom Lindsey and Mari Magrill.

Originally I was working with the Center for, legal defense fund center, Center for Environmental Legal Defense Fund and now I'm working with the same people, they've just got a different name, and it's the Center for Democratic Environmental Rights and they were doing rights of nature, and rights of a river, and like I said, I couldn't figure out how to get the power over the river because the Corps of Engineers has got so many places jammed up and we have a hard enough time getting them to hold the water regular for the wild rice production period so that's a hard animal to still fight, and coincidentally that's still Army against the Indians so I leave that one alone at this point, but the way it works out with the struggle, I'm a little off of my question here.

Well, I'm, I'm interested in learning a little bit more about the blow by blow - you shared with us a little bit about what's, what's forthcoming, in terms of in court.

I'm curious, if you filed this initially in tribal court, how does that transfer, if you will , to U.S. District Court, and then I'm also interested to learn a little bit more about the DNR's appeal, or - I'm sorry, they filed an injunction?

Correct, which was dismissed.

So what is, if you were to summarize their trepidation about this law, or, I'm sorry, this legal action, how would you describe it ?

Okay, in a sense, we're doing to the DNR what they do to everybody else.

In a sense, as a federally recognized Indian tribe with an Indian law and using tribal court, it's like the PCA doing the 401 Water Quality Permits under the Clean Water Act.

We are like a federal agency and they have to exhaust their administrative remedies with us, and so, in that sense, when we filed in tribal court, they said - we don't even think you can use your jurisdiction against us.

They wanted to file an appeal right away but they didn't file an appeal in the tribal court, they filed it in federal court, because they already didn't even like the idea of what was going on.

Ultimately, they did file an appeal in tribal court but it was only when they found out that they weren't going to get a stay from the tribal court unless the appeal was filed in tribal court.

So, they did file that, but in the meantime, the federal court said "what authority do you have or that you can cite to" that this court has to tell the White Earth Band that they can't exercise their law and rights the way that they are?

There isn't any.

Sure.

Right, this is all new stuff.

Tribal courts have only really been around in our area here for 25 years.

Is that right?

Yeah.

So we've been oppressed, like everybody else, you know.

So for the DNR, they're in federal court, they've already been told once "you don't have any authority" "you can't tell me what the authorities are now at the eighth circuit", and so the 8th Circuit, they're looking at that "Kodiak" case, which isn't a right to nature case, but what it's about was oil and the flare-offs from the burning, and there were some tribal members who thought that that wasn't being compensated for, and so they tried to sue for that and the tribal court went with that claim.

Well, the problem is, is the Bureau of Land Management and other entities that regulate and make those leases and they have the rules and they occupy the whole legal territory.

You can't just come in and try to take this little piece out and try to act on it, so that's, that they said wasn't, it was outside the scope of the actual judicial authority.

So you mentioned Line 3 several times and I guess I didn't realize that there was a connection between this legal action and Line 3 per se, so let me ask you this - "In 2018, when the tribal council enacted this law guaranteeing the rights of manoomin, was this in anticipation of Line 3?

"Yes."

"Oh, interesting."

Yes, what had happened was I went out , you know, from an Indian country perspective - you know it's going to happen to us , I mean, even though it took us, you know, working with Winona and Honor The Earth and White Earth and everything we've been doing, took them 7-8 years to get through, you know, normally it was like a 9 month process, is the way they kind of had it set up in the beginning with Sandpiper, so when when DAPL started happening, let me just kind of sequence this back.

"DAPL being the Dakota Access Pipeline, right?"

"Correct."

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

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 and then within a month they were running bulldozers.

There were 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 and we could see what was going on with KXL at Rosebud, and so I was trying to understand how to prevent and protect the environment and the people from the standpoint of what was going on, especially tribal people, using tribal law, because it's all Indian country out there.

The problem, in a sense, is it would have been nice to do what I'm doing a while ago, maybe, and prevented what was going on, but I also was working within a legal system with a whole bunch of other attorneys who have never seen this before either and so what I'm doing is hard for them to even imagine that I'm able to do what I'm doing, but hardly anybody studies Indian law, hardly anybody has the treaty rights that we have, the words "wild rice" are very very important in that treaty, they will probably make the difference.

So Frank, you're the Executive Director of the 1855 treaty authority, correct?

"Yes."

In that capacity, are you, are you acting in that capacity or are you acting as a member of the White Earth Band of Ojibwe?

I'm acting in many capacities.

"Okay."

Everybody has the right to defend manoomin.

Under the rights of manoomin, under our culture, the spirituality, we all are connected to wild rice, we all have a right to defend.

Well, sure.

The question is how many people can be doing it at the same time, how many places can you do it, and so by being the Executive Director of the 1855, everybody who I work with understands that we are doing what we've been doing with our rights.

We also understand with the White Earth Band of Ojibwe, you need to have a federally recognized tribe participating because that's who the federal government, the federal courts, and everybody looks to, to respect those rights - and that's why our tribal sovereignty has been prevailing over the DNR and I believe it's going to happen again, so you have that going on, and then you have water protectors themselves and in that, in that litigation, we are also looking for declaratory judgment that says that those water protectors, those tribal people, they have a right to defend manoomin.

They're not breaking the law.

Just because Minnesota has criminalized trespass in territory where we have a right to be whether it's water or land, doesn't mean that they can actually exercise that criminal jurisdiction and prosecute us, and that's going to be an interesting aspect of what I'm doing as well.

"Oh, interesting."

Well, sadly, we only have a couple minutes left and obviously we could talk about this for quite some time, so I'm interested in learning about your feeling about the prospects of this action, but before we do that, these "nature's rights laws" are being enacted around the world, in fact it's my understanding that some 17 countries have actually amended their constitution to include nature's rights, and much of that work has been led by indigenous populations, Bolivia and Ecuador have both amended their constitutions, the Maori have influenced the New Zealand government.

What do you see for the future of nature's rights, and how will this continue to unfold in the geography of Minnesota going forward?

Well, our treaty protected foods, Our primary foods, through the treaty journals, is wild rice, maple, and fish.

Those are very highly dependent water aquatic resources and that's not even counting all the other things that feed off of them.

So you have that going on, as a, I think, a standard, or a minimum, baseline for required water quality, and then you have our consent required, because our treaty rights are separate from the United States, as well as separate from Minnesota, and when I look at what's happening with the pollution control agency, and I've had people asking me about that because appalling that decision and the other mining that's going on, we may need to look at broadening our litigation because those are the people who were also involved with permitting that same water contamination, and I think from what I can see, the reason we haven't received the proper environmental impact statement from the Corps of Engineers and from Minnesota and things like that, and things being ignored, is because we're being sold out for the new green wave energy where you've got to have these precious metals; copper, nickel, and things like that, right, to make the chips and other things to make the solar panels or to keep the cell phones going.

So that's why you see both the state and the federal administration kind of kicking back and it's like, we don't want to get into this fight because you're talking about our political campaign donations.

"Iinteresting."

"Right, if you've watched the news - GM and Tesla both have openly said "anybody who's got some mining going on, please contact us, we want to work with you now."

So what are your chances, will manoomin win, very briefly, with this action?"

I think so.

I think so, and we're taking the show on the road , if you want to call it that, right into Wisconsin in Line 5, because all of those Chippewa bands have the same rights as I discussed, and in the 8th Circuit Court of Appeals, they came in with a brief; seven Chippewa bands, we all have the same rights, we're all concerned about water, we're all concerned about wild rice.

Well, Frank, I want to thank you so much for the work that you're doing and I want to thank you for taking time to visit with us today and share this with our viewers, I really appreciate it.

I appreciate it too, Jason.

Thank you very much, Miigwech and thank all of you for joining us once again.

I'm Jason Edens, your host of Lakeland Currents.

Be kind and be well.

We'll see you next week.