Limiting Tribal Environmental Protections
By: Ken Fowler
On August 4th, 2021, wild rice sued the Minnesota Department of Natural Resources (DNR) in the White Earth Tribal Court. Wild Rice sued the Minnesota DNR for its issuance of a permit to the Canadian corporation Enbridge to construct a tar sands oil pipeline from Alberta, Canada to Lake Superior. The pipeline was proposed to cross lands ceded to the United States government by the Chippewa Tribe and lands that the Chippewa tribe still retained treaty rights on to gather wild rice and other aquatic plants. In a novel approach for treaty right recognition, the White Earth Band of Ojibwe, a band of the Minnesota Chippewa Tribe, used a tribal law that recognized wild rice’s legal right to exist, flourish, regenerate, and evolve, as well as the inherent rights to restoration, recovery, and preservation, to fight against the pipeline project.
Manoomin (the Ojibwe word for wild rice), sued the Minnesota DNR due to the threats and impacts of the pipeline on its survival. The permit issued to Enbridge allows for the construction of the tar sands pipeline over 389 acres of wild rice in 17 different waterbodies that support wild rice. The new pipeline permit allows Enbridge to use 5 billion gallons of groundwater to clear the route for pipeline construction. The Plaintiffs in the case blame Enbridge’s use of billions of gallons of water for low water levels in the White Earth Band’s manoomin harvesting areas that threaten the ability of members of the White Earth Band to access and harvest manoomin as manoomin harvest is done by canoe.
After the case was filed in the White Earth Band Tribal Court, the Minnesota DNR sued the White Earth Band in federal court in an attempt to enjoin the tribal court from hearing the case. The federal District Court denied the Minnesota DNR’s motion for a preliminary injunction against the White Earth Band and the tribal court. The Minnesota DNR appealed to the Eighth Circuit Court of Appeals which again denied the DNR’s motion to enjoin the tribal court from hearing the case. In an unfortunate turn, the White Earth Band Court of Appeals then dismissed the historic lawsuit for lack of jurisdiction. The result of this case calls into question the ability of tribes to protect the environments they have treaty rights to under their own tribal laws.
The White Earth Band Court of Appeals cited that they lacked jurisdiction to decide the Manoomin v. Minnesota DNR case because of the Montana Doctrine, a doctrine developed under the case Montana v. United States in 1981. The Montana Doctrine states that tribes lack jurisdiction over non-tribal-members, unless: 1) a non-tribal member has entered into a deliberate relationship with the tribe or its members through contracts, leases, or other commercial dealings; or 2) a non-member’s conduct endangers or has some direct impact on the tribes’ political integrity, economic security, or health and welfare. Plaintiffs in the Manoomin v. Minnesota DNR argued that the issuance of the permit to Enbridge subjected the issue to tribal jurisdiction under the second exception of the Montana Doctrine. They argued that the construction of the pipeline endangers the treaty rights of the White Earth Band, endangers the rights of manoomin, and has direct impacts on the tribes’ health and welfare as manoomin is more than food for the White Earth Band; it is a conveyor of culture, spirituality, and tradition. The White Earth Band Court of Appeals was unwilling to accept this argument though and in turn, affirmed the Montana Doctrine by holding that the White Earth Band had no jurisdiction over the actions of the Minnesota DNR, a non-member entity.
This decision reaffirms a determinantal precedent that severely limits tribal sovereignty. With such limited jurisdictional powers under the Montana Doctrine, tribes lack the ability to sue external entities in tribal court for the effects that their actions have on lands tribes have treaty rights to. This decision serves as a limit on the enforcement ability of tribal laws meant to preserve the environment and a limiting of another avenue of conservation efforts.