Appeals court to decide if Minnesota DNR can be sued in tribal court

A stalk of developing wild rice stands in Big Rice Lake, a 3,000 acre lake south of Remer, Minn.
John Enger | MPR News 2014

In August, a lawsuit filed in White Earth Tribal Court attempted to stop the Minnesota Department of Natural Resources from issuing a permit to Enbridge Energy to pump water from trenches dug to lay the pipe for the Line 3 oil pipeline.

White Earth said the permit violated a tribal code approved in 2018 that protects wild rice.

Wild rice, or Manoomin, was named a plaintiff in the suit, making this case part of an international movement to grant legal rights to nature.

In response, the DNR sued in federal court, challenging the tribal court jurisdiction.

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In September, a federal district judge dismissed that suit, and the agency appealed to the 8th Circuit Court of Appeals.

Appearing before the appeals panel in St. Paul on Dec. 16, Assistant Attorney General Oliver Larson argued on behalf of the DNR that the tribal court lacks jurisdiction over the agency. He cited three reasons: The water permit was issued off the reservation, the tribal court does not have jurisdiction over nontribal members and the state of Minnesota has sovereign immunity against such a suit.

Larson told the appeals court that White Earth wanted a legal determination that they could extend their tribal code off the reservation to treaty lands.

A pipe is lowered into a ditch.
Protesters interrupt construction on the Enbridge Line 3 pipeline North of Aitkin, Minn., on Saturday, Jan. 9, 2021.
Ben Hovland for MPR News

“What they're purporting to do is to take a tribal legal code and apply it off-reservation on the theory that their usufructuary rights allow them to do that,” he said.

Usufructuary rights are tribal rights preserved in treaties to allow tribal members to hunt and gather on treaty lands located outside reservation boundaries.

Larson said legal precedents on the jurisdiction of tribal courts support the state position.

Attorney Joe Plumer, presenting the argument for the White Earth Band, countered that while the DNR water use permit was issued outside of the reservation boundaries, it negatively impacted wild rice growing on Lower Rice Lake, a preeminent wild rice producing lake.

"Lower Rice Lake is in very close proximity to the boundary that was impacted by this de-watering permit. We call it the crown jewel. It's the largest continuously producing wild rice bed in the world,” said Plumer. “And it was negatively impacted by this. That nonmember activity, regardless if it’s the state Department of Natural Resources, caused damages.”

Plumer said those damages violate the tribal law protecting wild rice. He cited some of the same legal precedents as the state, but highlighted portions of those cases, which he said prove the White Earth Tribal Court has jurisdiction in this case.

The 8th Circuit Court of Appeals will issue a ruling in the case at a later date.