Biden’s promise to tribes faces test in Great Lakes

By Hannah Northey | 10/11/2022 01:44 PM EDT

As many tribal lands face mounting pollution threats and the blunt force of climate change, the Biden administration has promised to incorporate Indigenous knowledge in rules and permitting. But observers question whether the “federal mindset” can shift.

Reporters boat down the Kakagon River in northern Wisconsin, a pristine area that’s protected under federal law and by tribal practices yet continues to face threats from runoff, development and climate change.

Reporters boat down the Kakagon River in northern Wisconsin, a pristine area that’s protected under federal law and by tribal practices yet continues to face threats from runoff, development and climate change. Hannah Northey/E&E News

BAD RIVER RESERVATION, Wis. — Rows of neon green shoots of native rice jut out of the Kakagon River, evidence of a local tribe’s protection despite facing climate change and increased pollution, flooding, pipelines and mining.

The Bad River Band of the Lake Superior Tribe of Chippewa has for millennia used its own knowledge and practices to protect the Kakagon River and the internationally recognized wetland it feeds — the largest remaining natural bed of wild rice or “manoomin” in the Great Lakes. The Biden administration has promised to protect and incorporate those methods in its overhaul of the nation’s regulatory and permitting regime.

The unprecedented White House effort, experts say, would address hundreds of years of federal resource management practices that have essentially shut out tribal input, sometimes with disastrous consequences — from cratering caribou populations in Alaska that fueled famine to deadly wildfires in California.


But the government’s work also faces challenges: There are more than 574 federally recognized tribes across the nation with different perceptions of traditional ecological knowledge (TEK) and economic conditions, not to mention conflicting internal opinions about resource management (Energywire, Dec. 6, 2021).

President Joe Biden last year issued a memo vowing to elevatetribal consultation, incorporate Indigenous knowledge and develop governmentwide guidance. Some agencies like EPA and the Interior and Agriculture departments have already issued agency-specific guidance, and traditional ecological knowledge is recognized under several statutes, including the National Historic Preservation Act and scientific assessments such as the National Climate Assessment.

But not every agency has fallen in line, and no formal, cross-agency policy yet exists. What’s more, tribes say the government fails to recognize the “intangible” or spiritual nature of their practices. And while some are still waiting for a cohesive whole-of-government policy, others question the likelihood of a change to the “federal mindset.”

“You still don’t have a real approach and a set of policies that truly respects Indigenous people’s knowledge,” said Kyle Whyte, a member of the White House Environmental Justice Advisory Council, an expert on equity issues in the Great Lakes and a member of the Citizen Potawatomi Nation.

There are no requirements, Whyte said, for agencies to put TEK on “absolutely equal footing” with other types of science within the permitting process, local or regional decisions, or the overall regulatory regime.

That, in turn, means Indigenous people cannot use their traditional knowledge to protect their land and water from state- or government-sponsored planning, pipelines or the threat of climate change, he said, adding that such policies “just don’t have teeth.”

Former EPA Office of Water attorney Mark Ryan, who’s currently working with the Nez Perce Tribe on the West Coast, said tribes have long faced an extreme uphill battle in getting federal agencies to listen to or act on their concerns, and will likely continue to face obstacles and delays even if Democrats keep the White House in 2024.

“You’re moving a very big ship,” said Ryan. “It’s going to take awhile to change the federal mindset.”

The Kakagon and Bad River sloughs show how traditional knowledge is protecting one critical wetland, even as other massive wild rice beds across the Midwest have been drained and developed or degraded by runoff.

Gliding down the Kakagon in a metal research vessel, Edith Leoso, a member of the Bad River Band and a tribal historical preservation officer, explained to reporters on a tour arranged by the Institute for Journalism and Natural Resources that the tribe has harvested wild rice, a perennial plant, by hand for hundreds of years.

Wild rice is central to the migration story of the Anishinaabe people of modern-day Wisconsin, Minnesota, Michigan, North Dakota and Montana, who adhered to a spiritual prophecy to live “where food grows on the water.” That food is wild rice or “manoomin,” which in the Anishinaabe language of the Ojibwe means “good seed” (Climatewire, May 29, 2020).

“When I was a kid, they would say, ‘Don’t ever develop on the lakeshore, don’t ever develop down at the sloughs, don’t ever let anybody build a house out there because they’ll wreck it … and we won’t have any more wild rice,’” said Leoso. “It was as simple as that.”

Today, buildings that once cropped up along the shores of the 10,700-acre wetland have been torn down to preserve the coastline, and development is banned within a mile-and-a-half buffer zone. Boats must comply with tribal and local ordinances and move slowly to avoid creating a wake when the rice is growing and delicate. And any runoff flowing into the watershed from surrounding farms and homes must meet the tribe’s strict, federally recognized water quality standards that account for cultural uses of water.

Leoso said she hopes the Biden administration’s guidance on traditional knowledge will one day be legally binding.

“It’s policy, it’s not law,” said Leoso. “In the future we hope that it changes into law.”

A ‘first-ever effort’

Easing the government’s long-strained relationship with Native American tribes is central to the Biden administration’s environmental justice push (Greenwire, May 5, 2021).

Last year, the White House assembled a multi-agency task force to craft and release guidance by the end of the year for agencies to incorporate traditional ecological knowledge. The effort has involved taking input from hundreds of individuals, organizations and tribal nations.

“This is the first-ever effort to provide Government-wide guidance on Indigenous Knowledge,” Justin Pidot, general counsel at the White House Council on Environmental Quality, and Gretchen Goldman, assistant director for environmental science, engineering, policy and justice at the Office of Science and Technology Policy, said in a joint statement. “Never before has Indigenous Knowledge been elevated to this extent at the White House.”

Monte Mills, director of the Native American Law Center and a professor at the University of Washington School of Law in Seattle, said tribes have historically been left out of decisionmaking around managing public lands and natural resources.

Overcoming the government’s own legal structure and history could prove challenging for the Biden administration, he said, noting that federal laws that govern agencies like the National Park Service, U.S. Forest Service and Bureau of Land Management make very little mention of tribes as partners.

The Biden administration’s effort is “made more difficult by this … long-standing legacy of exclusion or … even acknowledgment of the tribal connection to these lands," said Mills.

There’s also the matter of needing to train thousands of federal officials — biologists and environmental scientists — who now need to listen to and incorporate traditional knowledge that’s only recently been recognized as scientifically valuable, said Mills.

And they must do so in a way that’s not exploitative for tribes, he said, noting that TEK may include spiritual or religious components tribal members may not want to share with the government as a simple “management strategy,” said Mills.

“The interest in TEK can be exploitative for tribes, especially when it’s not recognized for what it is, which is sort of tribal existence,” he said.

Karen Bradshaw, an environmental law professor at Arizona State University, said there are clear examples of deadly outcomes when tribal input is ignored.

Bradshaw in 2020 authored a legal analysis that included a case study about the Alaska Department of Game and Fish’s mismanagement of caribou herds in the 1970s over the objections of Alaska Natives that resulted in two herds experiencing total population collapse, which fueled starvation that led to several deaths.

Bradshaw also penned an article pointing to the U.S. Forest Service barring the Karuk Tribe from conducting traditional prescribed burns in Northern California, which fueled an explosive fire that decimated tribal members.

“When traditional ecological knowledge is ignored, people who rely on the land can die,” said Bradshaw.

Mounting threats

Edith Leoso, a member of the Bad River Band of the Lake Superior Tribe of Chippewa Indians, sits in a boat on the Kakagon River in northern Wisconsin, which flows into environmentally and spiritually significant wetlands called the "sloughs."
Edith Leoso, a member of the Bad River Band of the Lake Superior Tribe of Chippewa Indians, sits in a boat on the Kakagon River in northern Wisconsin, which flows into environmentally and spiritually significant wetlands called the "sloughs." | Hannah Northey/E&E News

The Kakagon and Bad River sloughs — a cornerstone of the Bad River Band’s culture and an oasis of life and food, including wild rice, lake sturgeon and walleye — face no shortage of threats.

The wetland complex is fed by rain that falls along the Penokee Hills in northern Wisconsin, a low mountain ridge containing large deposits of iron-rich rocks. From there, the water drains into the Bad and Kakagon rivers and flows a little over 70 miles through the reservation and the sloughs.

It’s also a critical spawning habitat for lake sturgeon; plays a critical role in ensuring the biodiversity of Lake Superior fisheries; and provides habitat for numerous migratory birds, the endangered gray wolf and piping plover, and the threatened Canada lynx.

In 2012, the sloughs were designated as a wetland of international importance under the Ramsar Convention, an intergovernmental environmental treaty created in the 1970s by the United Nations. The site has federal protection under its designation as a National Natural Landmark in 1973 and under a treaty signed in 1954 that recognizes the boundaries of the reservation under tribal law, said Leoso.

But the tribe fears proposals to build massive iron ore mines in the Penokees — the Bad River headwaters — could return.

Climate change has brought more intense downpours to the sloughs and surrounding rivers, while climbing temperatures threaten development and germination of wild rice. The Bad River in recent years has seen record-setting storms, including a 200-year flood that submerged the reservation, according to legal filings.

And then there’s the Line 5 pipeline.

The tribe has repeatedly warned that more flooding could damage portions of the 67-year-old pipeline already running through the reservation.

Last month, a federal judge in Wisconsin found Canadian energy giant Enbridge Inc. had trespassed and profited from the Line 5 pipeline at the tribe’s expense but stopped short of shutting the line down, saying it would have “significant public and foreign policy implications” (Energywire, Sept. 9).

The pipeline ships more than 20 million gallons of crude oil and propane daily from Canada to eastern Michigan. Canada has invoked a 1977 treaty with the U.S. to argue for continued operation of the pipeline in the Great Lakes as part of a separate legal challenge in Michigan.

While the judge ruled Enbridge can continue operating the pipeline through the reservation until a 41-mile reroute is completed, EPA has expressed concern about the reroute.

In March, Tera Fong, director of EPA’s Region 5 water division, told the Army Corps of Engineers in a letter that “the proposed project may have 'substantial and unacceptable adverse impacts' on the Kakagon Bad River Sloughs wetland complex and the Bad River.”

Enbridge spokesperson Michael Barnes said the reroute needs to move forward in a timely fashion and maintained that less than one-tenth of an acre of wetlands will be permanently impacted by the reroute.

'Maybe we should listen’

For Leoso, the job of communicating the value of Indigenous knowledge and the “intangible” or spiritual connection with nature is part of her calling within the Bad River Band and integral to her role as a tribal historical preservation officer.

It’s also taking on more significance as the tribe’s 125,000-acre reservation faces mounting pollution threats and the blunt force of climate change.

Erosion has already eaten away at more than 30 miles along the Lake Superior shoreline within the tribe’s land, degrading nearby waterways, fisheries and shallow marshes where wild rice grows. In 2016, massive floods in northern Wisconsin submerged the Kakagon River, damaging buildings and homes.

Without climate action, Leoso said it’s not clear how the government can uphold its treaty obligations as land washes away, ruining fisheries and the tribe's ability to live off the land.

“If things are happening that are going to diminish the resources, that’s going to diminish us as a people,” she said.

Leoso is pushing for full and early tribal consultation.

When the Army Corps recently moved to gather public comment and tribal input for its “Great Lakes Region National Shoreline Management Study,” a guidance document for legislative purposes, Leoso pushed for more consultation.

“I just kept hitting them with ‘you didn’t have tribal consultation on this; you should have had tribal consultation; we could have helped you with this,’” she said.

An Army Corps spokesperson said the agency extended its review based on input from several tribes, as well as engagement meetings and outreach.

The final version of the study concludes that “a more robust consultation strategy should have been developed with input from consulting tribes.”

Ultimately, a new section of the report was added that references cultural impacts and the importance of tribal nations’ stewardship roles, including shoreline and lakefront planning, monitoring and restoration.

One main finding of the added text: “Manoomin” or wild rice is the most vulnerable species in the Great Lakes as the climate changes, threatened by shifts in water level, stronger and more frequent storm events, and pollution.

“The Army Corps of Engineers, they’re the Army,” said Leoso. “They are reluctant to work with tribes because we’ve been at war with them forever. They always know better than us. It’s getting over that ego they have to say, ‘Maybe we should listen.'”