The Rappahannock Tribe has become the first tribal nation in the United States to successfully adopt a tribal constitution that recognizes the rights of nature, giving legal protection to the river it has lived alongside for thousands of years.
The new constitution recognizes nine specific rights for the Rappahannock River, including rights to “naturally exist, flourish, regenerate, and evolve,” and to have “abundant, pure, clean, unpolluted water,” according to the text. The provisions protect both the river and its entire watershed.
“As the Mother of our Nation, who has provided sustenance to our Tribe for thousands of years and continues to nurture us in many ways, both physically, and culturally, as well as spiritually, it is our inherent responsibility to protect her,” Rappahannock Chief Anne Richardson wrote in an email to Mongabay. “We know that our health and the health of others depends on her health therefore we will do all we can to ensure that extractive industries who threaten that, we will fight.”
The constitutional provisions allow both the tribe and individual tribal citizens to bring legal action to enforce these rights, with cases able to be brought in the name of the Rappahannock River itself. The tribal council must adopt necessary laws and codes to guarantee and enforce these rights.
A tribal court system will be established by the tribe in 2025 to enforce these rights. This is important, Thomas Linzey, senior legal counsel at the Center for Democratic and Environmental Rights, which assisted in developing the constitutional provisions, told Mongabay. That’s because “Tribal court systems are driven by different value systems than Western European court systems. The Indigenous cultural system treats these things as cultural imperatives.”
The tribe’s action adds to a growing movement among tribal nations to protect natural resources through law. For example, in 2018, the White Earth Ojibwe band of the Chippewa Nation passed a resolution giving traditional rice the right to “exist, flourish, regenerate, and evolve.” In 2020, the Nez Perce recognized the rights of the Snake River in the U.S. Pacific Northwest to exist and regenerate. However, this is the first successful attempt to enshrine these rights in a tribal constitution.
Rights-of-nature laws often arise in response to immediate threats like mining, drilling, development and pollution to ecosystems critical to Indigenous cultural practices. While resolutions can address urgent threats quickly, constitutional amendments provide the strongest protection.
“While tribal resolutions and laws stand on a certain layer legally, tribal constitutions are at a higher level,” Linzey said. “It’s kind of like the difference between Congress passing a regular law and actually embedding something into the U.S. Constitution.”
The constitutional protection holds special significance given the tribe’s history. According to the tribe’s official website, the Rappahannock first encountered European settlers along the river in 1607. The tribe sold their first piece of land to the English in 1651, a sale for which they were never fully paid. The tribe endured multiple forced relocations, including removal from 3,474 acres (1,406 hectares) set aside for them in 1682.
“Reflecting on the Mission of the Rappahannock Tribe to preserve our culture, social and political structures, the logical next step for us is to do all we can to protect our River,” Chief Richardson said.
The new constitutional framework can work alongside the tribe’s existing treaty rights from 1677, which guarantee fishing, oystering and gathering rights. “The rights of nature is basically a way to protect the resource under which those use rights are anchored,” Linzey told Mongabay.
The Rappahannock River faces multiple threats from development and environmental pressures. The southward expansion of Washington, D.C.’s suburbs has increased development in the watershed, while the river has also faced challenges from fracking proposals, which led to it being named one of America’s most endangered rivers in 2017. Historical threats included intensive agricultural and industrial development, extensive logging and mining that caused erosion and pollution, and the century-long impact of the Embrey Dam, which blocked fish migration until it was removed in 2004.
“The ratification of the Rappahannock Tribal Constitution is a major milestone that demonstrates how sovereignty and self-determination can be harnessed to protect ecosystems and species upon which their traditional cultures depend,” Melissa Ehrenreich, executive director of the Indigenous Conservation Council for the Chesapeake Bay, said in a statement. “This is just the beginning of using these new tools to protect the rights of nature.”
The Rappahannock’s constitutional protection follows similar developments worldwide. According to a 2020 report, Ecuador became the first country to recognize the rights of nature in its constitution in 2008. In Aotearoa New Zealand, the Whanganui River gained legal personhood in 2017 through an agreement with Māori tribes, while in Bangladesh, all rivers within the country were granted legal rights in 2019.
According to the Guide to Rights of Nature in Indian Country, published by the Native-led Bioneers Indigeneity Program, passing rights-of-nature laws demonstrates tribal sovereignty. However, “the ability of Rights of Nature policy to support and forward Tribal sovereignty is subject to case law and has not yet been tested in [U.S.] court.”
“In spite of this warning, we believe that now is the time to stretch sovereignty to protect ancestral homelands for generations to come,” the guide says. “Rights of Nature laws are a way to ensure that our values are passed down … They tell the world what matters to us.”
This article by Liz Kimbrough was first published by Mongabay.com on 22 November 2024. Lead Image: Great blue heron (Ardea herodias), a native species along the river by Rhododendrites, CC BY-SA 4.0, via Wikimedia Commons.
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