Nature as Persons: The Legal Battle for Indigenous Interpretations of Rights of Nature

By Nathan Liu
​
Nathan Liu is a freshman studying political science in the College of Arts and Sciences.

“In Mojave thinking, body and land are the same. The words are separated only by the letters ‘ii and ‘a: ‘iimat for body, ‘amat for land. In conversation, we often use a shortened form for each: mat-. Unless you know the context of a conversation, you might not know if we are speaking about our body or our land. You might not know which has been injured, which is remembering, which is alive, which was dreamed, which needs care. You might not know we mean both” - Natalie Diaz.[1]

​Indigenous beliefs about the intertwined and connected relationship humans have to nature have existed for centuries and inform Native engagement with nature.[2] Of course, beliefs vary between Indigenous nations, and it is impossible to characterize Indigenous tribes monolithically, but they generally differ from Western notions of nature. For many indigenous people, the environment is not a separate entity but rather an intrinsic part of themselves – an interconnected system that humans are not above.[3] The anthropocentrism that characterizes Western thinking creates a human/environment distinction and regards nature as a resource to be used by humans, casting land as property.[4] It has justified the continued exploitation of the environment at an existential rate, resulting in existential consequences.

These consequences have spurred a legal battle to protect the environment. Common law regarding the injured in environmental suits set by Sierra Club v Morton established that a human person must be the injured to be granted standing.[5] Prior to 2007, injuries suffered in environmental suits were required to be economic losses. However, the Court’s ruling in Massachusetts v. EPA held that plaintiffs could suffer injury-in-fact, where noneconomic interests (such as recreational or conservational) can represent a loss.[6] Despite the broadened definition of “injuries” that aided environmental safety efforts, the Court did not overrule Sierra Club v Morton. Thus, the environment itself is never a relevant agent that can sue, have interests, nor collect damages.

Here, Indigenous understandings of nature have found a place in legal scholarship regarding the environment.[7] A radical theory of environmental personhood in law invokes Indigenous understandings of nature as an entity in legal principle. Environmental personhood has been utilized in tribal law, with the Navajo Nation banning uranium mining based on Navajo Natural Law that establishes “The animals, plants, insects, subsurface biota, and living in the water have their own laws and have the right to live.”[8] Founding scholarly works regarding environmental personhood cite Indigenous worldviews, which recognize that humans are not the only value-bearing agents in the world and challenge the assumption that people are limited to their bodies, instead accepting that nature is a part of humanity and vice versa.[9]

Environmental personhood is fundamentally different from current common law, as the category of personhood would vest a set of rights to nature, entailing three core tenants: first, the environment itself could bring suit instead of requiring injury to a human for legal action to occur; second, courts could account for the inherent interests of the environment; third, the environment could collect damages in the form of restorative initiatives from the defendant. [10]

This doctrine is much stronger internationally than in the US. In 2008, Ecuador ratified articles 71-74 as constitutional amendments that granted the environment “the inalienable right to exist, persist, and be respected.”[11] A 2016 decision by the Colombian Constitutional Court held that the Rio Atrato possessed rights to “protection, conservation, maintenance, and restoration.”[12] A year later, New Zealand granted the Whanganui River legal personhood.[13]

Within the United States, local municipalities have been making progress. The first Rights of Nature law passed when Tamaqua, Pennsylvania, banned the dumping of toxic sewage.[14] Other communities in the US have also recognized the rights of the environment and specific natural areas, including Mora County (New Mexico), Lincoln County (Oregon), Broadview Heights (Ohio), and others. However, there has been little to no state and federal adoption.[15] Notably, in Sierra Club v. Morton, the case that established that environmental suits must prove injury to a person, Justice William O. Douglas filed a dissent arguing that the environment as an entity should have standing and can suffer injury.[16]

Fundamentally, US common law regarding environmental personhood has not changed. Despite these domestic laws declaring the rights of nature, none have been upheld in court.[17] Due to a dearth of common law precedent and a severe lack of public support, the fight for the rights of nature has been arduous.

Despite this, an area that has shown promise is invoking environmental personhood through historic American treaty obligations to Native nations.[18] Unlike general rights of nature laws, there exists a strong precedent in respecting treaties as agreements between sovereign nations. From 1778 to 1868, the United States entered into about 374 treaties with various Native Nations that ceded land to the US and, in exchange, granted Indigenous Nations certain protections.[19] Many treaties included usufructuary clauses, which gave Native Nations the right to use and benefit from the land they ceded to the government.[20] The Court established four cannons for interpreting these treaties in Worcester v. Georgia to repair for these agreements, which were often convoluted and one-sided: first, courts must construe treaties to liberally favor the tribes; second, ambiguities in treaties must be interpreted in favor of tribes; third, judges must interpret the treaties as Indigenous people would have understood them at the time of signing; fourth, treaty rights persist unless explicitly nullified by Congress.[21] 

The third cannon is particularly useful in attempting to establish environmental personhood. United States v. Washington reaffirmed its strength by forcing Washington state to remove off-reservation culverts that were killing hundreds of thousands of salmon by invoking treaties that provided tribes with usufructuary rights to fishing on ceded land. The Court interpreted the state’s obligation by returning to how the tribe would have understood the treaty at the time, finding that the tribe’s goal in signing was for fishing to feed the tribe. Simply giving the tribe land access to fish fulfilled the treaty in text. However, the significant destruction of salmon populations, despite being outside of tribal jurisdiction, violated the tribe’s goal of feeding their people. The Court reasoned that this obligated the state to protect fish writ large and forced the state to cease operation of the off-reservation culverts.[22]

This third cannon can be used to invoke environmental personhood. Using indigenous concepts of the inherent value of nature as a part of themselves, tribes can use the third canon and their interpretation of treaties at the time of signing to cite the environmental personhood of nature delineated in the treaties.[23]

The first case to test this is Manoomin et al. v. Minnesota in 2019, in which the White Earth Band of Ojibwe sued the state of Minnesota on behalf of Manoomin, a wild rice. In 1855, the tribe signed a treaty with the state of Minnesota guaranteeing the usufructuary rights both to harvest Manoomin and to Manoomin itself. The tribe filed suit when the state approved Line 3, an off-reservation oil pipeline that would have diverted significant amounts of water away from Manoomin lands.[24] They argued that the water belonged to Manoomin and that current and previous Ojibwe understood Manoomin as more than a mere resource, but rather as an entity with rights that existed as part of their community.[25]

This case established rights for Manoomin in tribal courts but has yet to make its way to federal courts. Still, Manoomin serves as a blueprint for a robust, precedent-based argument for environmental personhood through treaty rights. With ever more litigation coming, including pending cases like Cypress Wilde Branch, where Florida is suing on the grounds of rights of nature, we may see a shift towards nature as legal persons, inspired and fore-fronted by Indigenous worldviews.[26]

[1] Diaz, Natalie. Postcolonial Love Poem. Minneapolis, Minnesota: Graywolf Press, 2020.

[2] NMAI Magazine. “Defending the Indigenous Rights of Nature.” Accessed October 21, 2023. https://www.americanindianmagazine.org/story/indigenous-rights-of-nature.

[3] Booth, Annie L. “We Are the Land: Native American Views of Nature.” In Nature Across Cultures: Views of Nature and the Environment in Non-Western Cultures, edited by Helaine Selin, 329–49. Science Across Cultures: The History of Non-Western Science. Dordrecht: Springer Netherlands, 2003. https://doi.org/10.1007/978-94-017-0149-5_17.

[4] Yang, K. Wayne. A Third University Is Possible. Forerunners: Ideas First from the University of Minnesota Press. Minneapolis: University of Minnesota Press, 2017.

[5] Scott Stern, object. “Standing for Everyone: Sierra Club v. Morton, Supreme Court Deliberations, and a Solution to the Problem of Environmental Standing.” Fordham Environmental Law Review 30, no. 2 (2018). https://core.ac.uk/reader/216959200.

[6] Marisa Martin and James Landman. “Standing: Who Can Sue to Protect the Environment?” American Bar Association, October 9, 2020. https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-19/insights-vol--19---issue-1/standing--who-can-sue-to-protect-the-environment-/.

[7] Christopher Stone. “Should Trees Have Standing - Toward Legal Rights for Natural Objects.” Southern California Law Review 45 (1972): 450–501.

[8] Rock, Tommy, and Jani C. Ingram. “Traditional Ecological Knowledge Policy Considerations for Abandoned Uranium Mines on Navajo Nation.” Human Biology 92, no. 1 (November 17, 2020): 19–26. https://doi.org/10.13110/humanbiology.92.1.01.

[9] Cullinan, Cormac. Wild Law: A Manifesto for Earth Justice. Totnes, Devon: Green Books in assoc. with the Gaia Foundation, 2003.

[10] Christopher Stone, “Should Trees Have Standing - Toward Legal Rights for Natural Objects.”

[11] Whittenmore, Mary. “The Problem of Enforcing Nature’s Rights under Ecuador’s Constitution: Why the 2008 Environmental Amendments Have No Bite.” Washington International Law Journal 20, no. 3 (June 1, 2011): 659.

[12] CELDF. “Rights of Nature: Timeline - CELDF - Protecting Nature and Communities.” Accessed October 22, 2023. https://celdf.org/rights-of-nature/timeline/.

[13] Tanasescu, Mihnea. “When a River Is a Person: From Ecuador to New Zealand, Nature Gets Its Day in Court.” Open Rivers Journal (blog), October 26, 2017. https://openrivers.lib.umn.edu/article/when-a-river-is-a-person-from-ecuador-to-new-zealand-nature-gets-its-day-in-court/.

[14] “Rights of Nature.”

[15] “Rights of Nature.”

[16] Scott Stern, “Standing for Everyone.”

[17] “Defending the Indigenous Rights of Nature.”

[18] “Defending the Indigenous Rights of Nature.”

[19] “Nation to Nation | Treaties Between the United States and American Indian Nations.” Accessed October 30, 2023. https://americanindian.si.edu/nationtonation/.

[20] “Indian Treaty Rights | Milwaukee Public Museum.” Accessed October 22, 2023. https://www.mpm.edu/content/wirp/ICW-09.

[21] hlr. “Indigenous Interpretations: Invoking the Third Indian Canon to Combat Climate Change.” Harvard Law Review, April 11, 2022. https://harvardlawreview.org/print/vol-135/indigenous-interpretations/.

[22] hlr. “Indigenous Interpretations.”

[23] “Indian Treaty Rights | Milwaukee Public Museum.”

[24] “Defending the Indigenous Rights of Nature.”

[25] hlr, “Indigenous Interpretations.”

[26] Elizabeth Warner. “Laboratories of the Future: Tribes and Rights of Nature.” California Law Review, April 2023. https://www.californialawreview.org/print/laboratories-of-the-future-tribes-and-rights-of-nature.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.