- Should Trees Have Legal Standing in Indian Country?
Many American Indian tribes now operate their own departments of natural resources. Wildlife, fisheries, and forests are now managed under tribal law. Unfortunately, tribal resource management tends to differ very little from that of any state or federal agency. Although some tribes have worked hard to incorporate elements of cultural recognition and sensitivity into their management plans and operations, most tribal programs in this area continue to be built on a Western model that views the natural world as an object and its components as property that exists only for human use (and often exploitation).
In this essay, I discuss an idea that was first advanced nearly four decades ago by legal scholar Christopher D. Stone, namely that the natural world should be acknowledged as possessing “legal standing” in the eyes of the law. A number of Native American intellectuals—most notably Vine Deloria Jr.—heralded Stone’s essay as a much welcome if somewhat belated show of support by Western thinkers for a concept that had long been accepted by tribal societies. I reexamine Stone’s thesis and relate it to Native American philosophical views on the status of the natural world. I argue that the time has come for modern tribal governments to formally and constitutionally acknowledge legal standing of all aspects of the natural world. [End Page 7]
REVISITING AN ENVIRONMENTAL CLASSIC
In 1972, Stone, a young University of Southern California legal philosophy professor, published one of the most provocative and important essays in the history of environmental law—“Should Trees Have Standing? Toward Legal Rights for Natural Objects.” He argued that society should “give legal rights to forests, oceans, rivers, and other so-called ‘natural objects’ in the environment—indeed, to the natural environment as a whole.”1 Stone wrote the essay in response to a recent decision against the Sierra Club rendered by the U.S. Court of Appeals in California. The court found that the Sierra Club itself had not been injured and consequently possessed no “standing” to bring suit opposing Walt Disney Enterprises’ plans for a massive ski resort in a high valley called Mineral King in the Sierra Mountains. Stone hoped that his essay would influence the U.S. Supreme Court review of the case Sierra Club v. Morton (405 U.S. 727). Stone’s essay indeed influenced a famous dissenting opinion by Justice William O. Douglas.
Stone republished his essay in a number of other venues—most notably as a 1974 book entitled Should Trees Have Standing? Toward Legal Rights for Natural Objects, which was accompanied by various other essays and republished in numerous editions.2 In 1996, his Should Trees Have Standing? And Other Essays on Law, Morals, and the Environment became the intellectual centerpiece for the environmental movement at its height of popularity, especially for environmentalists who believed that the nonhuman elements of the natural world should be granted legal standing under the law in the same manner as corporations in the United States.3 Trees, which took on something of a cult status, also became one of the foundational readings and inspirations for so-called Deep Ecology proponents. The merits of Stone’s essay were widely debated at environmental and legal forums everywhere. More than thirty-five years later, it remains the most developed and respected statement on the rights of the natural world. Among the intellectuals who were deeply impressed by Trees was the Sioux scholar Vine Deloria Jr., who wrote and spoke about it often, most notably in his own groundbreaking book The Metaphysics of Modern Existence.4
THE BASIC PREMISE AND IMPACT OF TREES
As Stone observes in Trees, “throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.”5 Stone continues, “The fact is, that each time there is a movement to confer rights onto some new ‘entity,’ the proposal is bound to sound odd or frightening, or laughable.” Many groups that [End Page 8] hold rights today were denied those rights at one time in U.S. history, Stone notes. Women and children, as well as blacks, Chinese, and other racial minorities, are among...