• Lydia Peterson

Roadblocks to Rights of Nature: Capitalist Ideology and Limits to Indigenous Input in the US

2008 presented a unique opportunity for Ecuador to structurally address environmental degradation at a time when such recognition was vital. The introduction of progressive leadership to the task of drafting a new constitution — resulting in the transformation of Pachamama (Mother Earth) from an object which is acted upon to a subjective legal entity — was a unique opportunity to apply new dimensions of the law to complement traditional well-established legal tools. In action, the constitutional rights of Pachamama prevented (via constitutional injunction) the expansion of the Vilcabamba-Quinara road, which would impede the course of the Rio Vilcabamba, on the basis that the river had a “right to its own natural course”. Bolivia followed suit with their 2012 “Ley de Derechos de la Madre Tierra” (Law of Mother Earth). In this way, both Ecuador and Bolivia have demonstrated a subscription to the Rights of Nature movement; that is, the protection of natural entities by the classification of such entities as living bodies with anthropomorphic rights.

Conversely, the United States is facing a confrontation between a “mass degradation of ecosystems” and an inadequate regulatory response resulting from the structural treatment of natural bodies. The Keystone XL pipeline project, for example, threatens the underlying Ogallala Aquifer - a source which surrounding nations, Lakota and settlers alike, rely on both spiritually and physically. Similarly, despite dependence on the Colorado River as a water source for Los Angeles, Denver, and Salt Lake City, a case brought to the courts for its protection was dismissed.

This may be because the United States rights regime is unconducive to the Rights of Nature movement. Tom Linzey, co-founder of the Community Environmental Legal Defense Fund (CELDF), emphasises that this regime is difficult to change: “rights conferred upon previously unrecognised bodies always sound foreign at first because they are unfamiliar”.

Our imagination of who and what rights bearers are is heavily influenced by tradition and interests. I, therefore, argue that the general failures of the Rights of Nature movement within the United States may be attributed to Euro-American capitalist ideologies which favour corporate rights and dominate the American judicial system. Thus, the United States’ legal system will remain incapable of imagining environmental protections beyond an extension of human rights without the greater influence of non-capitalist ideologies.

Within the United States, the legal personhood of nature is often framed as a challenge to both state sovereignty and a “still-pervasive American ideology of commoditisation”, which views anything non-human as a good “which can be owned and used, destroyed or protected”. Should animals and plants be given legal rights, “it would be much more difficult to kill and destroy them”. Thus, what must be challenged in order to confer rights to nature is the idea of said nature as “property”. This link between capitalist commoditisation and rights is not to be ignored; in Ecuador, the protection of Pachamama was presented as an alternative to global capitalism, based on a buen vivir worldview of living in harmony with nature, a concept which dominates much of the indigenous Andean region.

Still, the transfer of anthropomorphic rights onto non-human entities is not unheard of in the US. Precedent defining corporations as “persons” under the US Constitution has existed for over 100 years in the Supreme Court (see, for example, Burwell v. Hobby Lobby). Whilst this could be imagined as paving the path for natural entities to be similarly recognised, in actuality corporate rights prove to be inhibiting. “Where new rights are granted, other rights are limited in some way”, and corporate actions better align with the pervasive utilitarian ideology of the US. American constitutionalism itself “excludes the possibility that a private actor may violate constitutional rights”, via the State Action Doctrine.

Reciprocally, Bolivia has been successful in implementing the goals of the Rights of Nature movement because their Ley de Derechos de la Madre Tierra is “consistent with the beliefs of many indigenous people that their lives are intertwined with Mother Nature”. One may point out that indigenous communities within the United States possess similar beliefs — yet, in comparison to Ecuador and Bolivia, American indigenous knowledge does not constitute the American judicial rights regime.

The impact of indigenous rights on the Rights of Nature movement was exemplified in Ecuador where the progressive new regime in 2006, led by President Correa, had both the support and representation of the local indigenous communities. The influence of systems that view water as sacred undoubtedly affected the inclusion of Pachamama as a subject in the revised constitution. Regulatory failures in Colorado and on Lakota lands were not a result of a non-existent belief in nature as living — the Cupuca people of Colorado view water as sacred and resistance to the Keystone Pipeline by great plain tribes such as Blackeet and Lakota was out of respect for water — but rather a lack of representation of these belief systems in the American judicial systems. In Colorado, for example, Native American tribes were excluded from the initial compact negotiation regarding possession of the river.

International law provides a potential solution to the issue of homogenous knowledge input via a comprehensive framework for the increase of indigenous rights and self-determination. Article 26 of the 2007 UN Declaration of the Rights of Indigenous Peoples (UNDRIP) specifically outlines the rights of development and control of traditionally owned lands and resources, while Article 27 requires states to recognise these land rights. However, the US maintains an aversion to international interference with domestic affairs. Although the UNDRIP was endorsed, it was only agreed upon as a non-binding agreement. It did not affect, for example, the Keystone XL pipeline project which violated the requirement of informed consent for indigenous peoples.

Further, domestic political structures limit indigenous and municipal influences alike. Dillon’s Rule, laid out by Judge John F. Dillon in 1965, states that municipal corporations possess just three forms of rights: those expressly stated, those implied, and those essential for the corporation. The Rule “clearly recognises the state legislature as the sovereign power and the local government as subordinate”. Although municipalities may possess more flexible ideologies, local governments have little input in federal rights structures. In sum, the inability of capitalist American belief systems to conceptualise nature as a legal entity culminates in a need for greater ideological input by knowledge systems that imagine nature as a living body, to allow the Rights of Nature movement to seek footing in the US.

Two possibilities may be identified for the greater incorporation of indigenous knowledge systems. First, stricter adherence to UNDRIP would prove to be a “potential solution to […] protecting both indigenous and environmental interests in the resources”. Although the superpower status of the US negates the necessary commitment to international law, the desire to showcase renewed international compliance in the wake of the Trump administration may change this.

Secondly, the Cooley Doctrine may be useful in foregrounding indigenous knowledge. Thomas Cooley, Supreme Court justice for the State of Michigan, contributed a structural defence of local governance in light of aforementioned Dillon’s Rule, claiming that “constitutional freedom can be secured only if diverse communities […] are encouraged to govern themselves in accordance with a set of common principles”. This would allow for local ideologies, especially those of indigenous nations, to greater influence rights regimes.

In sum, the Rights of Nature movement provides a path to effective environmental protection which confronts the pervasive utilitarian rights framework within the United States. The link between indigenous ideology as often contradictory to Euro-American individualism and economic hierarchies is both explanatory of current roadblocks to the movement and constitutive of the path forward, especially in light of the correlation between Ecuador’s representative rights regime and protection of Pachamama. Current judicial structures grounded in capitalist efficiency are incapable of imagining rights of nature — yet, such a re-imagining is vital for the protection and maintenance of land and resources which remain spiritually and resourcefully vital to the American people.