KYSO Flash
Knock-Your-Socks-Off Art and Literature
Issue 10: Fall 2018
Commentary: 706 words

A Just Transition For Earth:
What if U.S. rivers and mountains
had the legal rights of people?

by Kayla DeVault

In mid-March of this year [2017], New Zealand officially recognized the Whanganui River as a living entity with rights. The river, which the Maori consider their ancestor, is now offered protection through the New Zealand legal system against any human or human-led project that threatens its well-being. It is a critical precedent for acknowledging the Rights of Nature in legal systems around the world.

The communities seeking protection for their natural entities through this approach are operating from a non-Western, often indigenous paradigm that holds a spiritual reverence to homelands and natural systems and an urgency to protect their natural resources. These values are not held in the laws of colonial governments like New Zealand, Australia, Canada, or the United States. But that does not mean they cease to exist, and, in fact, we are seeing a revival.

In response to the Standing Rock Sioux battle against the Dakota Access pipeline, the Ho-Chunk Nation of Wisconsin amended its constitution to include the Rights of Nature. This is the first time a North American tribe has used a Western legal framework to adopt such laws. Some American municipalities have protected their watersheds against fracking by invoking Rights of Nature.

Operating from a Lakota paradigm, the oil pipeline damage to Standing Rock sacred sites and threats to the Missouri River are an infringement on spiritual connection. Consider the irony of a Western paradigm that gives corporations the rights of people while government agencies give insufficient protection to the actual people affected. What if these waters—connected to the Creation Stories of the Lakota communities—were given legal personhood?

Here’s how New Zealand did it. After more than a century of legal battle, the Maori Iwi secured protection by forcing the New Zealand Crown to honor their practices, beliefs, and connection to the Whanganui River. As a result of the Te Awa Tupua Bill (Whanganui River Claims Settlement), the river has the legal rights of a person and is represented by two individuals. In passing this legislation, the New Zealand Crown also committed to protecting the customary practices of the Iwi regarding the river, and offered apologies and financial redress for historical wrongdoing.

If the Te Awa Tupua was able to correct the gap in Western and indigenous paradigms in New Zealand, surely a similar effort to protect the Missouri River could be produced for the Standing Rock and Cheyenne River nations by the American government.

How would that work? After defining the Missouri’s personhood, the collection of nations that hold cultural connection to and physical reliance on the river would next agree on the values that would govern its treatment. Under a joint agreement with the federal government, legal representatives for the river’s personhood would be appointed.

If the Missouri River had this kind of status, the Dakota Access pipeline would become a much different battle. Construction of the pipeline would first have to be approved by the river. Physical injury to the river could result in a lawsuit. Altering or confining the free-flowing nature of the river could be considered trauma. In combination with the risk of future chemical spills, these harms to the river should be enough to halt any Army Corps of Engineers permitting. Any negotiation would require legitimate consultation and consent from the river’s representatives. Consent might require royalties paid by Energy Transfer corporations to the river’s account. This account could be used to compensate those harmed by the river’s floodwaters and other natural disasters.

The Navajo still defend assaults on surrounding waters. The Winnemem Wintu work to recover the salmon that the Shasta Dam destroyed. And what about the mountains? The Gila River Indian Community and other O’otham groups continue decades of opposition against the Arizona state Route 202 extension that would cut through South Mountain, a sacred place to the people who have inhabited the Phoenix area since the beginning of their times. As construction begins this summer, many are scrambling to prevent irreversible destruction to the mountain and, by extension, the culture.

Should more tribes follow the path of the Ho-Chunk Nation, we may finally see an end to unconsented infrastructure projects in Indian Country.

—“This article was originally published by YES! Media and is reprinted here with permission.”

—This additional credit note is included as per requirements described at Yes! magazine online: “A Just Transition For Earth: What if U.S. rivers and mountains had the legal rights of people?” is copyrighted © 2017 by its author, Kayla DeVault, and was previously published in Yes! print magazine (Issue 83, Fall 2017) and in Yes! online (September 2017), where it is referred to as Commentary. This commentary also appears here with author’s permission and with permission from Yes! online magazine under Creative Commons license Attribution-NonCommercial-NoDerivs 3.0 Unported (CC BY-NC-ND 3.0).

Karen DeVault
Issue 10, Fall 2018

is an Anishinaabe and enrolled Shawnee who currently lives on the Navajo reservation. She is also an environmental activist and a Civil Engineering research assistant who specializes in Geotechnical and Environmental Engineering. And she is pursuing an A.A. degree in Diné studies and a Master’s degree in American Indian studies before starting a Ph.D. program in tribal energy policy.

More on the Web: By, About, and Beyond

Kayla DeVault | Appalachia, an interview conducted by Aletta Brady on 30 October 2017 and published in OCV: Our Climate Voices (9 June 2018)

Women Saving the Planet: Kayla DeVault, Advocating for Navajo Nation (the scholar and indigenous activist explains how tribal communities can help solve the energy crisis) by Kate Wheeling, in Pacific Standard magazine (21 March 2017)

Site contains text, proprietary computer code,
and graphic images that are protected by:

⚡   Many thanks for taking time to report broken links to: KYSOWebmaster [at] gmail [dot] com   ⚡