Roman Mars [00:00:00] This episode is the final one in our four-part series that we’re calling The Future of… We’ve been exploring how changes to the way we live, learn, work, and play may shape our health and wellbeing in years to come. Thanks to the Robert Wood Johnson Foundation for supporting this episode. The Robert Wood Johnson Foundation is committed to improving health and health equity in the United States. Learn more about them at rwjf.org. This is 99% Invisible. I’m Roman Mars. Two hours west of Duluth, there is a wide, shallow lake called Big Rice Lake. Every summer, once the ice has thawed, the surface of the lake is slowly breached by tall, green stalks that grow up and out of the water. By early fall, Big Rice Lake is dotted with canoes full of people there to harvest the grains from those plants. This is where the lake gets its name. These tall, unassuming stems are full of a very special ingredient–wild rice.
Evelyn Bellanger [00:01:02] In my first time actually ricing, me and my sister took my grandma and my mother out on the lake. And we were going around in circles, and they were pointing, “I want to go over there! I want to go over there!”
Roman Mars [00:01:13] This is Evelyn Bellanger, an elder enrolled in the White Earth Band, which is the largest of the six bands that make up the Minnesota Chippewa tribe–also known as the Ojibwe People. Evelyn has always loved going out on Big Rice Lake to take part in the harvest.
Evelyn Bellanger [00:01:29] And it’s really quiet. You know, you’re not going fast, but you can hear when somebody pulls out rice. And they’ve got a rhythm. And it goes, “Whoosh. Swoosh.” You could just hear that rice falling in the boat. The rhythm of it. The sound of it.
Roman Mars [00:01:49] But for the Ojibwe people, this wild rice isn’t just a food source. It’s a lot more.
Evelyn Bellanger [00:01:55] And it was a gift to the Ojibwe people. It was a gift.
Roman Mars [00:02:02] The Ojibwe people didn’t always live in this part of the Midwest. They used to be based on the East Coast. Then about a thousand years ago, their elders were visited by the first of seven prophets who guided them.
Evelyn Bellanger [00:02:14] We were told to move from the East Coast because if we didn’t, we would be destroyed.
Rose Eveleth [00:02:19] When you get a prophecy like that, you don’t generally ignore it. So, they packed up and left, looking for a new home.
Roman Mars [00:02:25] That’s reporter Rose Eveleth, host of the podcast Flash Forward.
Rose Eveleth [00:02:29] The prophecy said they’d know where to settle when they found the place–
Evelyn Bellanger [00:02:33] Where the food grows on the water.
Rose Eveleth [00:02:35] Where the food grows on the water.
Roman Mars [00:02:37] After centuries of moving around, they wound up in the Great Lakes, where they found exactly what they were looking for in the form of wild rice.
Rose Eveleth [00:02:44] The Ojibwe name for this specific type of rice is “Manoomin,” which translates to “the good berry.” The scientific name is “Zizania palustris.” It’s the only grain indigenous to North America. And while it might look and taste a lot like the rice that you might buy at the store, it’s actually not closely related to brown or white rice at all. For the Ojibwe people, gathering this sacred, prophesized rice is a ritual that carries with it a lot of significance. Not only is Manoomin a food source, it’s also a way to connect with their ancestors and a crucial species in the ecosystem.
Roman Mars [00:03:19] But last year, Manoomin took on a new role–plaintiff in a court case. In August, the Minnesota Department of Natural Resources was sued by wild rice.
Rose Eveleth [00:03:30] The case of Manoomin v. Minnesota Department of Natural Resources alleges that the Minnesota DNR infringed on the wild rice’s right to live and thrive.
Roman Mars [00:03:41] But can wild rice sue a state agency? The short answer is “Yes.” This is the story about what might happen if the rice wins.
Rose Eveleth [00:03:53] Manoomin used to grow wild all over the Great Lakes region. But its populations have declined significantly in the last hundred years due to development, pollution, and climate change. In order to grow properly, the rice needs clean, unpolluted water. But that’s harder and harder to come by these days.
Frank Bibeau [00:04:11] A lot of people lost the ability to go out and get either their seasonal harvest for their personal use and/or to make some money off of that.
Rose Eveleth [00:04:19] That’s Frank Bibeau, a tribal attorney, and a member of the White Earth Band of Ojibwe. Like Evelyn, he has a lifelong connection to the rice and early memories of gathering it.
Frank Bibeau [00:04:29] I harvest wild rice. My dad harvested wild rice. My grandfather harvested wild rice. I’ve got the family canoe. I live on a reservation. And so, we have this other obligation, I guess, is what I would call it.
Roman Mars [00:04:44] And Frank takes that obligation to protect the rice very, very seriously.
Rose Eveleth [00:04:49] Well, there are a lot of things hurting Manoomin. There’s one big, obvious threat at the moment. In 2014, a company named Enbridge proposed updating and replacing sections of a crude oil pipeline called “Line 3” that goes through Minnesota. But local tribes and environmental activists had questions about just how safe this pipeline really was and whether pumping more oil through their land was really a good idea.
Newscaster #1 [00:05:16] A pipeline battle brewing in Minnesota–today with the largest show of resistance yet.
Roman Mars [00:05:25] Activists tried all kinds of tactics to stop Line 3. They protested, petitioned, and lobbied the various environmental agencies to step in.
Activist [00:05:33] We will no longer stand for water to be polluted–for our earth to be polluted! That’s why we’re here today!
Rose Eveleth [00:05:45] We reached out to the Minnesota DNR and Enbridge for this story. Both declined to do an interview on the record, but Enbridge did send a statement disputing that the pipeline had negative environmental impacts and saying that they worked with local tribes, including the White Earth Nation, to plan the route for the pipeline. They also say it would bypass certain critical areas in Rice Lake. But many tribal members are not convinced, including Frank. And as he watched things play out, he began developing his own idea for how to stop Line 3 from becoming operational. But it was an unusual one. He wanted to represent wild rice in a lawsuit against the state of Minnesota.
Frank Bibeau [00:06:25] So here I’m holding this card thinking it could work, but I’m the only one. And I’ve got a zillion attorneys who were like, “Frank, this doesn’t look like anything anybody will even understand.”
Rose Eveleth [00:06:35] His fellow attorneys, friends, and activists–they all told him to wait. Wait for the other strategies. Wait and see what might happen. It wasn’t until those other avenues felt like they were hitting dead ends that Frank was turned loose with his plan.
Frank Bibeau [00:06:48] And the funny part is–you know–in Indian Country, I’m like a Robin Hood doing this.
Roman Mars [00:06:54] Frank was developing a legal strategy. He thought instead of playing by the rules of the big national and state agencies, what if you use tribal ideas and tribal court to enforce a relatively new realm of law called the “rights of nature?”
Rose Eveleth [00:07:08] Rights of nature is pretty much what it sounds like–the idea that you could treat nature like a person, legally.
Roman Mars [00:07:15] Which might sound unusual, but we’ve used conceptual versions of what a person is in the eyes of the law for quite some time. Corporations, schools, and law firms, for example, are all technically allowed to enter into contracts as if they were singular human beings. And while this environmental version of the concept is relatively new to the American legal system, it has deep roots in indigenous ways of thinking.
Frank Bibeau [00:07:38] Well, the rights of nature really is more like ancient law. As Chippewa– And I say “Chippewa” because that’s what we’re called in our treaties as Anishinaabe or Ojibwe. We have a relationship with all of nature, and we refer to them as “our relations.”
Rose Eveleth [00:07:56] The idea of relations isn’t purely an Ojibwe concept. It actually shows up in Indigenous thinking all over the world.
Nico Albert [00:08:03] We have a relationship with these plants where, you know, we’re human people. There’s tree people, there’s beaver people, there’s deer people, there’s bear people, there’s salmon people. In the Pacific Northwest salmon are ancestors as well. And in some ways, they’re revered as much more important than humans.
Rose Eveleth [00:08:25] This is Nico Albert, a member of the Cherokee Nation and the executive chef of Burning Cedar Indigenous Foods. And she says that when it comes to these animal and plant relations, it’s not just about using ingredients or respecting certain species. It’s deeper than that.
Nico Albert [00:08:43] You can’t think of it from a colonized standpoint and think like, “Okay, it’s some grass. Grow the grass somewhere else.” This is their relative. This is the reason their people exist. It’s not just grass. It’s so much bigger than that.
Jacinta Ruru [00:09:02] So from a Māori perspective, we have always known and believed that we are of the land, that we are part of this place, that the lands, the mountains, the sky, the earth are our ancestors, and that through that we have our responsibilities to care and to nourish the lands and the waters around us.
Rose Eveleth [00:09:23] That’s Jacinta Ruru, a professor of law at the University of Otago in New Zealand.
Roman Mars [00:09:28] For Jacinta, giving nature legal rights isn’t just about trying to protect nature. It’s also about legally validating this indigenous way of thinking. By writing it into law, you’re saying that you think nature’s personhood is as valid as–say–tax law.
Rose Eveleth [00:09:44] In some places–like New Zealand–these rules have been more about making a gesture of recognition than about stopping an imminent environmental threat. In 2014, the country returned an already protected reserve to the Tūhoe people–for them to manage.
Jacinta Ruru [00:09:58] Those lands are incredibly important to the identity of Tūhoe. Who they are and who they will always be is entirely connected into those lands and those waters.
Rose Eveleth [00:10:11] These lands weren’t threatened. Nobody was trying to build a pipeline through them or cut down the trees. The decision was about showing that indigenous law and land management was worthy of the country’s respect and trust.
Jacinta Ruru [00:10:25] It is a wonderful way to be able to show to us, as New Zealanders, that the sky is not going to fall and that the world is not going to end if we recognize a modern way of caring for lands and waters.
Roman Mars [00:10:43] But in other parts of the world, environmental activists are hoping to move past the symbolism and to use the rights of nature argument as a legal weapon to stop deforestation or pollution.
Thomas Lindsey [00:10:54] Yeah, I don’t have much patience for the symbolic kind of stuff anymore.
Rose Eveleth [00:10:58] This is Thomas Lindsey, the senior legal counsel for the Center for Democratic and Environmental Rights.
Thomas Lindsey [00:11:04] It’s almost like passing a non-binding resolution or passing a resolution that says, “This is Earth Day.” We’re really past that now.
Roman Mars [00:11:11] Thomas spent the early part of his career trying to play by the book, working to protect the environment through all the usual regulations and laws. But he said time and time again he watched as powerful industry players got what they wanted, no matter what the rules said.
Rose Eveleth [00:11:26] And there was one case in particular, he said, that really made him reconsider the point of trying to go through the systems that exist.
Thomas Lindsey [00:11:34] It was a case in northern Pennsylvania dealing with a woodchip mill.
Rose Eveleth [00:11:38] The woodchip mill’s neighbors started to complain about the pollution from the mill. And Thomas and his colleagues found out that the mill wasn’t permitted to operate at all. This should have been easy. The mill was operating without a permit, polluting the environment, and harming the local residents. So, it should be shut down, right?
Thomas Lindsey [00:11:57] And I guess to our chagrin or wonder, the state agency retroactively permitted the woodchip operation by fax. So, they faxed a permit to the corporation running the woodchip operation that had a retroactive permit in it, which basically legalized all their past activities associated with the woodchip mill. So, there were a number of those kinds of experiences over the years, which showed us at least that the regulatory system was really more of a hamster wheel that was set up purposefully for people to run around and around.
Rose Eveleth [00:12:29] So instead of running on the hamster wheel, Thomas got involved in the wave of lawyers trying to use the idea of environmental personhood to protect specific spaces legally. His organization, the Center for Democratic and Environmental Rights, has been involved in implementing constitutional amendments and laws all over the world. Thanks to CDER and other rights of nature activists, there are now movements in Mexico, Spain, Brazil, India, Bolivia, and more.
Newscaster #2 [00:12:57] The Uttarakhand High Court has declared the Ganges and Yamuna as living entities, bestowing on them the same legal rights as a person–thus making the river the world’s second to get such a status.
Newscaster #3 [00:13:06] The New Zealand Parliament has passed a bill recognizing the Whanganui River as a living entity with the same legal rights as a person.
Roman Mars [00:13:14] Even in the United States, there have been attempts at using this legal framework to protect land from pollution and degradation.
Newscaster #4 [00:13:20] The Colorado River ecosystem versus the state of Colorado. That’s right. The entire river system–all 1,500 miles of it from Colorado to California–is the plaintiff.
Newscaster #5 [00:13:32] A Native American tribe has granted personhood to a river in Northern California, making it the first known river in North America to have the same legal rights as a human.
Newscaster #6 [00:13:42] A vote happening in Ohio right now is testing the waters of an idea to give a lake legal rights like people have.
Newscaster #7 [00:13:50] Yep. Those behind the Lake Erie Bill of Rights say it’ll protect it from pollution and potential algae blooms. But those against it say it could be costly for the whole region.
Rose Eveleth [00:13:58] But while the concept of rights of nature is catching on all over the world, there is a difference between the idea getting popular and the idea actually working.
Roman Mars [00:14:10] The one place that advocates can point to where these laws have made clear impact is Ecuador, where Thomas and his collaborators helped pass a rights of nature constitutional amendment back in 2008. A few months ago, an Ecuadorian court ruled that mining in the Los Cedros protected forests would violate the rights of nature and shouldn’t be permitted.
Rose Eveleth [00:14:30] But in the United States, this strategy has yet to really work. In the case of Lake Erie, a court quickly overturned the vote and rendered the charter amendment useless. There are lawsuits working their way through the systems in Florida and Seattle, but nothing has really come of them yet.
Roman Mars [00:14:47] Which brings us back to the wild rice. Frank Bibeau, the tribal attorney for the White Earth Band, met Thomas years ago, when Thomas came out to do a presentation on rights of nature in Indian Country.
Frank Bibeau [00:15:00] You know, we talked for two, three hours about what they were doing with rights in nature. And during break time, my professor kind of pulled Tom aside and he says, “You know, you’re talking about rights of nature the way you present it to white people in the other parts of the United States for their city or state laws and ordinances. These are Indians, and they already have a right to nature. You know, it’s a question of how you harness it and manage it.”
Thomas Lindsey [00:15:25] So in 2017, Frank Bibeau came to us, and we started having a conversation with him about what it might look like to apply these rights or nature concepts to wild rice.
Roman Mars [00:15:35] Working together, Frank and Thomas brought the Manoomin case, which is currently making its way through the legal system. It faces various hurdles, which we’ll get into. But Frank has faith that this case could be the thing that turns the tide on the rights of nature movement here in the U.S.
Frank Bibeau [00:15:51] And I think we’re going to be the tip of the spear on environmental protection in North America and, you know, particularly in the United States.
Rose Eveleth [00:16:00] Frank is confident for a couple of reasons. First, the tribe already has a rights of nature law in place. In 2018, with the help of Thomas and his organization, the White Earth Band of the Chippewa Nation adopted something called “the Rights of the Manoomin”–a tribal law that said that wild rice had legal rights.
Thomas Lindsey [00:16:19] And then the question was, well, how do we actually enforce this? And the opportunity to enforce came about because of the proposal to put in this Line 3 tar sands oil pipeline by Enbridge Corporation.
Rose Eveleth [00:16:33] Not only do they have this recent tribal law on their side, they also have something much older to point to.
Frank Bibeau [00:16:39] In our 1837 treaty, the words “wild rice” themselves appear.
Roman Mars [00:16:47] When America started its push for expanding and colonizing what’s now considered the United States, they did so in part by making agreements with the people who already lived on that land. Between 1778 and 1871, the U.S. government signed hundreds of treaties offering all kinds of arrangements with local tribes, exchanging promises of peace and protection for land, resources, access to waterways, and more.
Rose Eveleth [00:17:15] According to the U.S. Constitution, these treaties are the supreme ruler of all rules. That’s literally what the Constitution says. It says that, quote, “All treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land.”
Roman Mars [00:17:32] And in the treaty with the white Earth band, wild rice is specifically named as something the tribe gets to keep. The rice gets protected.
Frank Bibeau [00:17:42] We retain the rights to hunt, fish, and gather wild rice on the lands, lakes, and rivers in the territory being ceded. And so, in that technical sense, the words “wild rice” are the supreme law of the land.
Rose Eveleth [00:17:55] Now, the United States doesn’t have a great history of keeping the promises made in these treaties. But in the last few years, the U.S. Supreme Court has started respecting these agreements more and more–rather than ignoring them.
Roman Mars [00:18:08] So the tribe has a rights of nature law in place. It has a treaty to point to. And the final reason Frank is confident is because past cases happened in state or federal court. But here he’s specifically filing in tribal court.
Rose Eveleth [00:18:20] Tribes in the United States are complicated legal entities. They’re a little bit like states, but they’re not technically states. And tribal law is its own entire legal expertise. Many tribes have their own courts, but that development is relatively new.
Frank Bibeau [00:18:36] For the most part, most tribal courts have been around 20 or 25 years. And that means there isn’t a body of case law in federal courts that says what we can and can’t do in tribal court.
Rose Eveleth [00:18:47] Not only are these tribal courts fairly new, they’ve also never been used this way. Tribal courts generally hear cases about divorces, custody hearings, and criminal offenses. And so, this means that Frank’s strategy is an untested legal gambit. It’s not clear yet if it will work.
Roman Mars [00:19:06] Now, Frank is the first one to admit that this strategy might seem a little confusing or strange. In fact, he says it’s weird for both sides. Those who aren’t indigenous and don’t connect the idea of nature as a relative sometimes find the whole concept odd. And indigenous people often find it baffling that it takes all these legal shenanigans to officially declare something that they find so very obvious.
Frank Bibeau [00:19:29] It’s very clear. It’s very simple. It’s just ancient law. And that’s what makes it such a comedy in Indian Country because it’s like, “Wild rice is suing the DNR. How about that? That’s how stupid law can be.”
Rose Eveleth [00:19:43] Right now, everybody is waiting to hear what two different sets of judges are going to decide–one case in tribal court and one in federal court. Both of those cases right now hinge entirely on the question of jurisdiction.
Frank Bibeau [00:19:59] Jurisdiction is a little confusing at different times. And what I try to tell people most of the time is it just means who has the right to decide.
Roman Mars [00:20:06] The Minnesota Department of Natural Resources is arguing that the case should not be heard in White Earth tribal court at all–in part because doing so would apply tribal law to actions taken outside the reservation.
Rose Eveleth [00:20:19] And in March, in a move that surprised Frank and Thomas, the White Earth Court of Appeals agreed with that argument. Because Line 3 doesn’t technically pass through the reservation, they argued that the White Earth Band had no say in what went on–even if the impact of Line 3 can be seen on the reservation. Obviously, Frank disagrees. He has asked the appeals court to reconsider, and they’re now waiting on that decision.
Roman Mars [00:20:47] If the appeals courts side with Frank and Thomas and they get to keep going, it’s worth considering what would happen next because the implications would be big.
Rose Eveleth [00:20:57] Well, first, it’s possible that there could be even more appeals that drag on even longer. But if they get through those, then they get to try the case in court officially–with arguments and lots more documents filed back and forth. And if after all of that, they actually win, and the tribal court rules against the Minnesota Department of Natural Resources, then things get really interesting.
Frank Bibeau [00:21:21] And I think that’s going to be like gasoline and matches.
Rose Eveleth [00:21:24] If wild rice prevails in this case, it could mean a few things for both the region and the nation. The most obvious change would be to the local area. It would be a blow to the continued use of the Line 3 pipeline, which has been operational since October of last year. A court order could hypothetically force Enbridge to shut the whole thing down.
Roman Mars [00:21:44] But the reason that Frank and Thomas are both excited about this particular case is because it could change the ways that land is used and developed much more broadly.
Frank Bibeau [00:21:54] Well, the real question is: What are you trying to protect? Well, I’m trying to protect wild rice. And by protecting wild rice, wild rice will protect everything else.
Rose Eveleth [00:22:03] Like many tribes, the reservation that the White Earth Band currently occupies is a tiny fraction of the land that their treaty with the United States government actually covers. Over the years, the U.S. pushed tribal residents onto smaller and smaller plots, chipping away at their ancestral homes. But the original treaties often cover vast swaths of land.
Roman Mars [00:22:26] And one of the things that Frank and the White Earth Band is asking for in their case is for a code-permitting agreement for new construction. In other words, if anybody wants to build something like a pipeline, the tribe would have to sign off on it–not just on present day reservation land, but for all the land that the original Ojibwe treaties covered.
Rose Eveleth [00:22:46] And that is a lot of land. We’re talking about something like 11 million acres in total.
Thomas Lindsey [00:22:52] And so the reason why this case has so much potential is that if it’s successful, it not only validates this kind of tribal rights of nature concept about tribes passing rights of nature laws, but it also would allow tribes in the United States to reach into all of those treaty lands to have control over permits issued on those lands.
Rose Eveleth [00:23:13] And it doesn’t stop at those measly 11 million acres of land. What Thomas and Frank really hope is that if this case succeeds, they will be on their way to making the idea of environmental personhood a thing all over the United States.
Roman Mars [00:23:29] And that would change laws and save ecosystems. But it might also change something a lot more fundamental because in a lot of ways, this idea that nature has rights like a person might is the complete opposite of a lot of modern economic thinking about nature.
Thomas Lindsey [00:23:43] And I hearken back to Sir Francis Bacon in England, who said, you know, “The job of civilization is to torture nature to extract her secrets.”
Rose Eveleth [00:23:53] Okay. So technically, this was a quote from a different fancy pants European scholar. It was Gottfried Wilhelm Leibniz who said this–not Francis Bacon. But Leibniz was talking about Bacon when he said it, so…
Roman Mars [00:24:03] The point is, is that if the concept of the rights of nature really takes off in law, it means reconsidering more than just one pipeline or one construction project.
Thomas Lindsey [00:24:13] The whole story needs to change. The source code needs to change. The DNA needs to be altered. And the only way that happens is when massive numbers of people begin to move into these institutions to, in essence, change their DNA. That’s part of the idea behind rights of nature. It’s not quite there yet, but–as a movement–I think what it’s aiming towards is changing how everything works.
Rose Eveleth [00:24:34] And with a shift like that comes some big questions. For example, if nature gets the right to live and thrive–like a person might–then can you just never build anything again? Thomas gets this question a lot. He told me that once he was up in New Hampshire, trying to convince some skeptics that a couple of local rights of nature laws weren’t going to stop development altogether.
Thomas Lindsey [00:24:58] Some guy got up in the back, and he said, “Well, if we pass this, it means we can’t shoot squirrels anymore here in the municipality.” And so, I prepared to answer his question, but some old guy–his friend–got up in the back, and he said, “No, Mel. What it means is that we can’t shoot all the squirrels.”
Roman Mars [00:25:15] The idea here isn’t to actually protect each grain of rice, salmon, or squirrel as if it’s a human being. You can still hunt, fish, or build as long as overall it doesn’t infringe on the right of the natural system to thrive.
Thomas Lindsey [00:25:29] So if a forest is protected, it doesn’t mean you can’t cut down a tree. It just means you can’t cause damage to the ecosystem by taking out so many of the trees that the entire ecosystem folds.
Rose Eveleth [00:25:41] The actual specifics of these debates will always be tricky. Who is to say whether the ocean wants an offshore wind farm that might overall decrease global warming? Who gets to decide if the river would rather have a hydroelectric dam or not? In other words, who speaks for the trees?
Roman Mars [00:26:00] Other than the Lorax, the answer right now is frustratingly vague and that it depends on the situation. In cases of tribal treaties, the indigenous communities would take on that role. But that’s not always the case. A lawsuit currently awaiting hearing in Florida, for example, has a wetland suing a developer. There’s no treaty involved and no tribe driving the effort.
Thomas Lindsey [00:26:21] You want more people, not less, representing ecosystems because you want more of these cases brought–not less. But folks that have some kind of relationship to the ecosystem itself–it’s important for those folks to be recognized as guardians or plaintiffs in this case.
Roman Mars [00:26:38] Extending person-like rights to a non-person is always going to be fraught. There will always be opportunities for abuse here. The process could be hijacked by NIMBYs. We could end up with strange and complicated legal cases that make people scratch their heads and wonder what all these lawyers are doing exactly.
Thomas Lindsey [00:26:55] You know, law itself is a figment. It’s an artificial creation.
Rose Eveleth [00:27:01] And sure, the rights of nature argument is still a gamble. But for Thomas and Frank, it’s worth trying.
Frank Bibeau [00:27:07] It’s kind of like when you have a pair of glasses on your table and the arm’s a little loose. And you look over and you’ve got a pair of scissors on the table–and you try to tighten that little screw. You know, it’s not the right tool, but it can work.
Roman Mars [00:27:21] Right now, the Manoomin case is still up in the air, but Frank is already helping other tribes consider a similar strategy. In Seattle, the Sauk-Suiattle tribe has filed a case in tribal court, seeking to protect salmon.
Rose Eveleth [00:27:34] This summer, the rice will grow on the lakes again and the boats will head out the way they always have. Here’s Evelyn Bellanger again.
Evelyn Bellanger [00:27:41] I was looking back. I have a picture here of wild rice, when we were ricing when I was a kid.
Roman Mars [00:27:47] The photo shows a mass of boats and people. Some of the boats are empty, while others are full of bags of rice. Cars line the road as far as the eye can see.
Evelyn Bellanger [00:27:59] They had wooden boats. It was taken in 1963, so I was about ten years old. And it was just everybody was so involved with the harvesting, the rice. And I remember I could stand outside and I could hear the neighbors. You know, they were all getting ready to start ricing. Everybody was happy talking in Ojibwe. Those are some of my best memories. I guess to me, it was always kind of like connecting with our ancestors because they’ve always done this before us. I just kind of felt that connection is quiet–quiet out there. I just always used to get that urge–I want to go.
Rose Eveleth [00:28:43] And perhaps by the time Evelyn’s grandchildren go out on the lake, the rice will have officially presented its case in court. And when they go out to gather it, they might get to congratulate it on a job well done.
Roman Mars [00:28:59] Coming up after the break, we tease out some of the more complicated implications of environmental personhood–like could a river sue a person, and could that person sue a river? Stay with us. Support for this four-part series, Exploring the Future of Health and Wellbeing, comes from the Robert Wood Johnson Foundation, which is committed to improving health and health equity in the United States. Knowing that the healthy, equitable future we all deserve won’t simply arrive, RWJF is exploring how new technologies, scientific discoveries, cultural shifts, and unforeseen events–like those in today’s story–may shape our lives in years to come. Through these explorations, they’re learning what emerging trends or cutting-edge ideas can help us build a future that provides every individual with a fair and just opportunity to thrive–no matter who they are, where they live, or how much money they have. So, if you like thinking about the future of things, visit rwjf.org/pioneeringideas to learn more and apply for a grant from the Pioneering Ideas for an Equitable Future Team. Over the years, this team has funded projects that help nurses tap into their maker mentality to improve care at the bedside, supported gig economy workers to redefine what good work looks like, equipped architects to design buildings where human contact flourishes, encourage product designers to create humane technology, and even published a collection of short stories to help people imagine a healthier future. Designers, scientists, artists, toymakers, researchers, librarians. If you’re listening to this show, I have a sneaking suspicion you have a cutting-edge idea or two worth sharing. Get all the details at rwjf.org/pioneeringideas. So, Rose, you make a podcast called Flash Forward, which is all about the future, which means you spend a lot of time thinking about what might happen down the line. And we talked about this in the episode about the Manoomin case and, you know, how this might impact Line 3 and even environmental policy more generally. But I’m wondering if this goes any further. I mean, in this future, could I be sued by a river, for example?
Rose Eveleth [00:31:14] Yeah. So, the short answer to that question is yes, you Roman Mars could hypothetically be sued by a river if you were, say, dumping stuff into a river that you were not supposed to be, and the river’s legal representatives decided to bring a case against you. That is, in fact, a possible future. So Russian River v. Roman Mars is a hypothetically possible future case.
Roman Mars [00:31:37] Okay. I mean, I’m trying to think of, like, what this could possibly lead to. Do I have to get river insurance or, you know, some things like that beyond this? But let’s just assume that me, as an individual… A) I wouldn’t do that ever.
Rose Eveleth [00:31:51] Just to be clear.
Roman Mars [00:31:52] Rose, believe me. I would never pollute a river. But, you know, the damage one person could do to a river is pretty limited. Like, we’re really talking about industry and things like that.
Rose Eveleth [00:32:03] Yeah, right. I mean, even if you–and I would never besmirch you to suggest this–were to throw a wrapper into the river, right? That is not worth the time and resources that would be required to take this to court. So, I think the likelihood of this being used against singular individuals–you, Roman Mars, me, whatever it is–is very low. The point here is to go after big ticket items. You know, pipelines, mining, oil refining, fracking–all the stuff that you see in the news as, like, those big players.
Roman Mars [00:32:34] Right. But if this legal framework is set up, I could be sued by a river. I mean, who gets chosen to be sued is at the discretion of the people who are suing people.
Rose Eveleth [00:32:45] Yeah. Yeah. And I think it’s actually interesting that you picked rivers as the example here because they are sort of one of the trickier types of environmental cases at play when we talk about rights of nature. Rivers famously flow, right? They are often quite long. And they often cross state and even national borders. And this was Frank’s issue with the idea of rights of nature at the beginning as well.
Frank Bibeau [00:33:08] I was reluctant at first working with Tom on rights of a river because the Mississippi River has probably 30 different water controls associated with the upper Mississippi River reservoir system.
Roman Mars [00:33:22] Yeah, a river is a complicated entity, and it touches a lot of different places and jurisdictions. And it makes me wonder, like, okay, if I were to pollute a river up here in Oakland–to keep this hypothetical going… Please understand I would never pollute a river, Rose. You have to understand.
Rose Eveleth [00:33:35] I’m just filing this away for a future lawsuit that I’m going to file against you when you pollute a river.
Roman Mars [00:33:40] I would never pollute a river. But if I were to pollute a river in Oakland and the effects of that pollution were felt in, you know, L.A., San Diego, or even Mexico, if Mexico had an environmental personhood law, could I be sued by a river in another country?
Rose Eveleth [00:33:58] Yeah. It’s a really good question. The true answer is no one knows, right? This has not been a thing that anyone has tried. I think probably you wouldn’t be sued by a river from Mexico, at least right now, just because suing somebody from another country opens up a whole other can of worms. But if San Diego had an environmental personhood law and they could trace the damage that was done to the river back to you, up here in Oakland–then theoretically, yes. Because you are in the same state, it is possible that you could be sued by the river in San Diego. And I actually asked Thomas Lindsey about this, too, because I’m sort of obsessed with this river question.
Thomas Lindsey [00:34:35] And the answer is that these laws have what we refer to as an “extra jurisdictional component,” which is that if you’re recognizing the right of the river to exist, then anything happening upstream from the river that’s violating the rights as that river flows through that particular municipality is actionable, which means you can bring a lawsuit against whoever is interfering with the rights by operating upstream. This is a way of applying environmental law in a small place that can have exceptional application outside of that, especially when you’re dealing with rivers or other ecosystems that, of course, don’t respect municipal boundaries.
Rose Eveleth [00:35:12] So part of the reason I like the river example and I think about it all the time is because it does help show something that I got to thinking about a lot when working on this episode–which is that when you really start to play out some of these future scenarios and you really start to fully buy into this idea and the applications, you start to see that the strategy can get a little bit bananas.
Roman Mars [00:35:35] Okay, well, please explain more.
Rose Eveleth [00:35:37] Sure. So, there’s a case in India that I think kind of illustrates what I’m talking about. So, in 2017, a court in Uttarakhand granted personhood to the Ganges and Yamuna rivers. Now the state immediately appealed and ultimately the rivers were stripped of the rights they had just been given before it actually made any difference at all. But the thing that is interesting about this is that the issue in this case seemed to not only be about the geographical span of these rivers–they’re quite long–but also about what it means to actually say that these rivers are legal persons. So, having the rights of a person means being protected from harm, right? But it also means that you can be held accountable for the harm that you cause. So, you can’t punch me, and I also can’t punch you back–speaking of things that we would never do, like polluting a river. And in this case in India, there actually was a question about whether or not the river could be held accountable for its actions. So, in their appeal, the government asked whether people could sue for any damages that the river caused.
Roman Mars [00:36:41] Right. Okay. So, like, if the river flooded and destroyed my house, it could theoretically be responsible if it was a person.
Rose Eveleth [00:36:49] Yes. And this was a concern that was cited in the appeal by the government, saying “We can’t open this can of worms because, like, what happens if people sue the river back?”
Roman Mars [00:36:57] Right. Because, like, how do you hold a river accountable?
Rose Eveleth [00:37:00] Right. I genuinely don’t know. And I think it would probably involve the state just having to pay for it if the state is representing the river. But, like, again, no one knows what that would look like. So, I will say advocates for environmental personhood say that they’re not really actually arguing that rivers should be treated exactly like people. I think they all kind of recognize that that way madness lies. But sometimes they will use the term “legal naturehood” instead of “legal personhood.” You know, legal people love to coin new words for things. I don’t know what that means necessarily. It still opens up this question of, like, which rights nature does get and which ones it doesn’t get.
Roman Mars [00:37:42] Right. But giving it a new name at least sort of sidesteps the asymmetry of the term “personhood.” But it’s still sort of a confounding thought exercise. Again, when we talked about polluting the river in Oakland–again, something we would never do–and it reaching San Diego to cause harm… Historically, San Diego has always had the right to sue somebody upriver for causing harm. Why do we need a new law when you do have these other enforcement mechanisms already?
Rose Eveleth [00:38:11] You know, I am not a lawyer. But I think that what Frank and Thomas would argue is that–yeah–we have all of these ways of suing, but none of them work to protect the river. And so why not try this other way? And I will be honest that to me, philosophically, the idea of environmental personhood–of rights of nature–it does appeal to me, right?
Roman Mars [00:38:31] Oh. Totally.
Rose Eveleth [00:38:31] Like, this idea that we should respect these places, that they’re living entities, that we should think about them as truly alive. I also buy into the idea that the current environmental regulations are not working–that the system we have is not working. But at the same time when you start to look into these specific examples… Can the river sue you back? What does this really mean? I can’t help but feeling like we’re sort of trying to force a square peg into a round hole of sort of an indigenous thought system into the U.S. legal system. And those are just kind of not fundamentally the same things. And I did ask Thomas about this. We talked about it a lot, actually. And when I first asked him, he was basically like, “Yeah. Obviously.”
Thomas Lindsey [00:39:13] There’s two different worldviews there. One which has proven to be incredibly destructive, almost world destructive, globally destructive. And another one that sees nature in a much different light, in which humans need to live in some kind of harmony or compatibility with nature, rather than trying to climb on top of it, stretch it on a rack, and torture it in a medieval torture device.
Rose Eveleth [00:39:36] Thomas does love that quote about the torture device… Which I also love.
Roman Mars [00:39:40] He doesn’t mince words. I like him.
Rose Eveleth [00:39:42] No. Yeah, exactly. And, like, maybe that’s fine, right? Maybe it doesn’t matter if we are trying to force this square peg into a round hole if it gets results. It’s not as though we just have a ton of time to sit around and do this perfectly, given the state of the environment right now. But it is sort of a strategy that really pushes us to kind of be, I think, okay with the absurdity of the law in the name of an outcome.
Roman Mars [00:40:09] Yeah. I mean, this was kind of what Frank was getting out of the piece about how dumb law can be.
Evelyn Bellanger [00:40:16] Yes, exactly.
Roman Mars [00:40:17] Yeah, because you really can use it in all kinds of different ways. I mean, it really is conflicting logic arguments. And you can have logic arguments all day long and never be done.
Rose Eveleth [00:40:29] Yeah. And right now, the weird and silly way that nature laws work works in favor of people who are generally polluting–so, like, why not do it the opposite way? Why not make it work in favor of nature?
Roman Mars [00:40:42] Totally fair.
Rose Eveleth [00:40:43] And I think that, you know, Frank and Thomas see this gap. And they are really trying to make something work now while also thinking bigger picture. So, you can do both, right? You can do your weird little law fiddling and also be trying to imagine a system that is a little bit more holistic.
Thomas Lindsey [00:41:01] What we’re talking about as a complete overhaul here. This is just the beginning of seeing the world in a different way because if there’s no there’s no better, well-trod concept in the Western system of law than the one in which nature is property. It’s basically the building block for everything in a Western culture–a Western civilization.
Roman Mars [00:41:22] Yeah. And he’s talking about nature not being property. So, there’s just a complete overhaul of Western civilization as we know it.
Rose Eveleth [00:41:28] Yeah, I mean, I’ll just pencil it in. I feel like I’m probably free Wednesday. I don’t know what you’re doing. You know, we’ll just work on it.
Roman Mars [00:41:34] We’ll just knock it out on a Zoom.
Rose Eveleth [00:41:36] Yeah, yeah, yeah. A really, really epic Zoom. In all seriousness, I actually think that is why I got really interested in this idea in the first place, why I wanted to explore these cases, and, I think, why we keep talking about this, right? I spend a lot of time on Flash Forward–my podcast–thinking about what might move us to a better future. And when you look at history–as you do on this show all the time, and there’s lots of episodes that you can point to that talk about this kind of thing–you realize that often it’s these weird little strategies that no one is expecting that kind of make a huge difference because they come out of left field and do ask people to think about the world differently. So, a river being able to sue you, Roman, for your pollution that you will never do–if that’s what gets us to a better place in saving the environment, I’m for it, I think.
Roman Mars [00:42:26] Yeah, yeah. Well, it’s really fascinating stuff. I’ve loved watching this story come together. It’s so much fun to think about. So, thank you so much for bringing it to us and doing this with us. I appreciate it.
Rose Eveleth [00:42:37] Thanks! Thanks for having me. This has been very, very fun.
Roman Mars [00:42:41] 99% Invisible was produced this week by Rose Eveleth and Ozzy Llinas Goodman. It was edited by Delaney Hall. Fact-checking by Graham Hacia. Mix and tech production by Ameeta Ganatra. Music by director of sound Swan Real. Special thanks this week to Leah Lemm, Philomena Kebec, Teresa Vicente Gimenez, Dan Roberts, and Tashia Hart. Rose and Ozzy make a fantastic podcast called Flash Forward. Another version of this story will be airing on Flash Forward – it will explore a number of other ‘rights of nature’ cases and other related ideas. Please check it out. 99% Invisible’s executive producer is Delaney Hall. Kurt Kohlstedt is our digital director. The rest of the team includes Emmett FitzGerald, Vivian Le, Joe Rosenberg, Chris Berube, Christopher Johnson, Lasha Madan, Jayson De Leon, Sofia Klatzker, and me, Roman Mars. 99% Invisible is part of the Stitcher and SiriusXM podcast family, now headquartered six blocks north in the Pandora Building — in beautiful uptown Oakland, California. You can find the show and join discussions about the show on Facebook. You can tweet me @romanmars and the show @99piorg. We’re on Instagram and Reddit, too. You can find links to other Stitcher shows I love as well as every past episode of 99pi at 99pi.org. Thanks again to the Robert Wood Johnson Foundation for their underwriting support of this special episode. Be sure to check out each episode in this four-part series, The Future of… And if you have a hunch about what it will take to build an equitable future, share it at shareyourhunch.org.
Leave a Comment