Rights of Indigenous Peoples and the Nonhuman Environment
Cover Image: Mouth of the Klamath River on the Pacific Ocean, Del Norte County, California / Wikimedia.
This article is part of our “Natural Law, Human Rights, and ‘Unalienable Rights” series.
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The Trump Administration’s new Commission on Unalienable Rights, recently convened by Secretary of State Mike Pompeo, has gotten me thinking about human rights and how useful the rights discourse is to us in America today. Somewhat ironically, it was the Commission’s chair, Harvard Law professor Mary Ann Glendon, who first helped me to articulate my unease with this discourse. In her book Rights Talk: The Impoverishment of Political Discourse, Glendon offers a productive, insightful critique of Americans’ obsession with individual human rights, asking us, instead, to think about collective responsibilities. It is in this light that I want to challenge the Commission’s focus on religious freedom as a paradigmatic or paramount right in a narrow sense, especially in light of the diverse ways in which religious freedom is understood and experienced by Indigenous groups.
Some scholars of Indigenous law and religion have attempted to recover a conception of religious freedom as a collective right. My purpose here is different, however. While I do not seek to abandon the idea of rights altogether, I am interested in broadening it beyond the human world to see what might happen to human rights if we grant rights to nonhumans – specifically, to nature. Indigenous peoples and their relationship to the nonhuman environment of the land and its resources are at the forefront of this struggle. Thus, I would like to look at one example here: the Yurok nation of Northwest California and its ongoing struggle to protect the sacred Klamath River.
My point of departure is water rights, and it is through these rights that I want to complicate the idea of rights more generally. The first thing we think about when we think of water rights is the human right to water. But this is only the beginning of the story. At the end of the story, “water rights” will mean the rights of water. This may seem to be only semantics, wordplay, or a provocation or strategy—isn’t it clear that what we should care about, ultimately, is the rights of human beings to clean water, to fishing, and other environmental goods and life-sustaining pursuits? However, cases about water rights, specifically the case of the Klamath River and the Yuroks, present the underlying issue of Indigenous sovereignty as tightly related to the wellbeing of nature. The Yurok cannot live a sovereign life as long as the river’s wellbeing is not protected. When I read Indigenous scholars or talk with Indigenous activists, what they contend is that sovereignty is tightly related to environmental justice.
In the book A Basic Call to Consciousness, noted journalist and scholar of Native American Studies José Barreiro ties together “The meaning of sovereignty. The respect for Mother Earth. The search for integrity, the circle of life. Oppression, conquest, colonialism, exploitation. Genocide.” Sovereignty is tightly related to land. If we think of sovereignty without reducing it to jurisdiction, then we can say that sovereignty doesn’t mean the right to decide the fate of a territory; rather, sovereignty is partnership with the land itself and calling to respect the land as mother. And rivers are especially helpful in challenging the binary notion of sovereignty—only nation states can be sovereign—because they do not obey state borders.
In the early 1900s, the Yurok nation of Northwest California became one of the most studied Native American nations through the ethnographic work of one of Franz Boas’ most famous students, Berkeley anthropologist Alfred Kroeber. Nevertheless, today, many of them feel invisible to the United States government and to non-Native Americans, even though they form the largest Indigenous nation in California, with more than sixty-two hundred enrolled members living in or around the Yurok reservation. The reservation mimics the shape of the Klamath River: a thin snake, stretching along 44-miles of the river, from the fork where the Trinity River joins it, all the way to the Pacific Ocean.
The Yurok struggle for sovereignty has been entangled with the fate of the Klamath River since their contact with white settlers in the 1830s. For example, the struggle for Yurok sovereignty took the form of one U.S. Supreme Court case on fishing rights in the 1970s. The Court finally acknowledged Yurok fishing rights on the Klamath River, but decades of mismanagement, damming, and over-allocation of water had decimated the fish stocks. The struggle for Yurok sovereignty then took the form of a lawsuit (followed by the Klamath Agreements) to remove dams from the river in the early 2000s. But while the status of salmon as an essential and sacred resource to Yurok life was acknowledged in the agreement, it was only a marginal reason for the decision to remove the dams.
The struggle for sovereignty and for healing of the Klamath River has been fought on another front since the establishment of the Yurok Tribal Court in 1993. In its early days, the court was only open once a month, mostly to adjudicate fishing violations, but it has since grown to hear over 600 cases a year. The Klamath River and its fish play an important role in the Yurok court. In order to restore the fish to the river, the Yurok declared a voluntary ban on commercial fishing, and they tightly regulate personal fishing on the river. The Yurok Tribal Court hears cases that are related to this regulation, but it also often orders that salmon would replace monetary fines or child-support payments, in cases that are not directly related to fishing or to the river.
Against this background of litigation and adjudication, I would like to rethink the notion of Indigenous sovereignty through the story of the Yurok’s efforts to heal the Klamath river understood in a religious cosmological or cosmogonic sense as their “bloodline,” in ways that intersect with religious freedom rights, as well. In Federal Indian Law, sovereignty requires the recognition of the Yurok treaty rights by U.S. courts. But perhaps more meaningfully to the Yurok themselves, sovereignty means the ability of the Yurok court to make decisions on Yurok everyday life based on traditional values, and with close attention to the river and its fish, that play a vital role in their economic, cultural, and spiritual identities.
In May 2019, the Yurok Tribal Council passed a “Resolution to Extend the Rights of the Klamath River, stating that: “the Yurok Tribal Council now establishes the Rights of the Klamath River to exist, flourish, and naturally evolve; to have a clean and healthy environment free from pollutants; to have a stable climate free from human-caused climate change impacts; and to be free from contamination by genetically engineered organisms.” Tribal Council attorney, Amy Cordalis, has explained this as a way to express Yurok sovereignty and increase protection of the river through tribal law. Acknowledging the rights of nature means granting personhood rights for nature, so that the natural entity is treated as a person would be in a court of law, including standing and remedies.
Cordalis further explains the centrality of the river to Yurok life: the Yuroks have always lived along the river – they have never been relocated – and their relationship with the river is established in their creation stories, according to which the creator has allowed them to live on the river and benefit from its immense bounty, and in exchange for which they have the responsibility to protect it. Yurok law, then, is closely tied to what we may think of as religious values. In a way, obeying Yurok law and freely exercising Yurok religion are one and the same. However, the U.S. version of religious freedom has failed the Yuroks in the past, as it did in the Supreme Court’s decision in Lyng v. Northwest Indian Cemetery Protective Association (1988), a noted religious freedom case involving the Yurok that followed the earlier fishing rights cases. And so, extending rights to the Klamath River and simultaneously extending the jurisdiction of the Yurok Tribal Court to adjudicate related cases helps to protect Yurok religious freedom while thinking about the matter in terms of collective responsibility, rather than individual rights. This seems to be exactly what Glendon has called us to do in Rights Talk.
Granting the river rights means that the Yurok Tribal Court will have jurisdiction over anyone who harms the river. This resolution will authorize a cause of action in tribal court to protect the river and to recover a remedy to then address the harm inflicted by the offending entity. But apart from asserting Yurok sovereignty through this resolution, there is also a real declaration here about the Yurok’s responsibility to protect the river as their kin. Cordalis compares this declaration to the recognition of corporate personhood in U.S. law, asserting that while corporate personhood reflects capitalist values, granting the river personhood reflects its importance in Yurok law.
The “Resolution to Extend the Rights of the Klamath River” calls for creating a tribal ordinance, so the Yurok are now going through a legislative process to create an infrastructure for these causes of action to proceed. This will take time, of course. And how the federal government, the State of California, and private corporations react to this resolution and to potential legal action remains to be seen. In the meantime, we can theorize that the Klamath River resolution has the opposite effect on human rights discourse than some have argued the Commission of Unalienable Rights intends to do—instead of narrowing our notion of rights, it broadens our understanding of personhood.
Dana Lloyd is a postdoctoral research fellow at the Danforth Center on Religion and Politics at Washington University in St. Louis. She holds an LL.M. and an M.A. in Philosophy from Tel Aviv University. Lloyd is currently completing a book manuscript entitled Arguing for this Land: Rethinking Indigenous Sacred Sites.
Lloyd, Dana. “Rights of Indigenous Peoples and the Nonhuman Environment.” Canopy Forum, January 13, 2020. https://canopyforum.org/2020/01/13/rights-of-indigenous-peoples-and-the-nonhuman-environment-by-dana-lloyd/