THE FIGHT FOR ANCESTRAL RIVERS: A STUDY

OF THE MĀORI AND THE LEGAL PERSONHOOD

STATUS OF THE WHANGANUI RIVER AND
WHETHER MĀORI STRATEGIES CAN BE USED TO
PRESERVE THE MENOMINEE RIVER
Tia Rowe

In early 2017, the New Zealand government and the Māori passed a
law that formally recognized the Whanganui River as a living entity that
was inseparable from the Māori themselves, a concept known as Te Awa
Tupua. Te Awa Tupua was given legal personhood status and the
government ceded its rights to the Whanganui River to Te Awa Tupua.
Comparatively, the Menominee River in the United States of America is
involved in a legal battle between the Menominee Tribe, who want to
protect it, and a mining company that is trying to build a mine on it. This
note briefly looks at the history of the Māori and the history of the
Menominee and their ties to their ancestral Rivers. Finally, this note will
examine the feasibility of applying the strategies the Māori used to the
struggle for protecting the Menominee River. This note concludes that
the large-scale social movements and political lobbying that the Māori
utilized would likely not be as successful in a U.S. framework because of
political differences and the limited timeframe the Menominee are
working within.

 J.D. Candidate, May 2019 at Michigan State University College of Law. I

would like to thank Professor Kate Fort and Dr. Kyle Whyte for their guidance and
support while writing this note. I would also like to thank my family and friends for
supporting me through this process, as well as Ashley Martin with the Michigan State
International Law Review for her careful editing and helpful suggestions. Any remaining
errors are completely my own.
594 Michigan State International Law Review [Vol. 27.3

I. INTRODUCTION .................................................................................. 595

II. THE MĀORI OF NEW ZEALAND: A BRIEF HISTORY .................. 596
A. The Treaty Of Waitangi .............................................................. 596
B. The Whanganui Settlement And The Recognition Of Te Awa
Tupua ........................................................................................... 604
III. THE MENOMINEE TRIBE OF WISCONSIN: A BRIEF HISTORY 609
A. The Menominee and the United States Federal Government ..... 609
B. The Back Forty Mine .................................................................. 613
C. The Legal Battle Between the Aquila and the Menominee ........ 617
IV. COMPARING THE MĀORI AND THE MENOMINEE: AN
ANALYSIS OF SOCIAL AND POLITICAL STRATEGIES ............... 620
V. CONCLUSION..................................................................................... 626
2019] The Fight for Ancestral Rivers 595

I. INTRODUCTION

Recently, governments across the world have been granting legal

personhood, or some variation of it, to environmental entities that have
cultural or historical significance to primarily Indigenous groups of
people.1 In early 2017, the parliament government in New Zealand
worked with a group of Indigenous people, the Māori, to establish a
framework within which the Whanganui River is considered a legal
person.2 Through the passage of legislation, national protests, and
political lobbying, the Māori were able to protect one of their sacred
rivers, the Whanganui River.3 Similarly, the Menominee Tribe of
Wisconsin in the United States of America is fighting to protect the river
that is sacred to them, the Menominee River.4 The Māori and the
Menominee are similar in several ways, and those similarities can be
analyzed to determine if some of the same strategies the Māori have used
would be useful in the Menominee fight to protect their River.5 First,
both Indigenous groups hold their respective Rivers in high cultural
regard and have actively sought to protect their Rivers.6 Second, both
Indigenous groups have suffered from settler-colonial policies and
treaties that caused them to lose exclusive control over their sacred land
and rivers.7 The Māori used large-scale social movements and political
lobbying to bring awareness to the cultural importance of the Whanganui
River,8 and, given the aforementioned similarities between the Māori and

1. See generally Erin O’Donnell & Julia Talbot-Jones, Three rivers are now
legally people – but that’s just the start of looking after them, CONVERSATION, (Mar. 23,
2017, 3:13 PM), http://theconversation.com/three-rivers-are-now-legally-people-
but-thats-just-the-start-of-looking-after-them-74983; See New Zealand, EARTH LAW
CTR. (Aug. 16, 2016), https://www.earthlawcenter.org/international-
law/2016/8/new-zealand; See Devon O’Neil, Parks are People Too, OUTSIDE (Aug. 3,
2016), https://www.outsideonline.com/2102536/parks-are-people-too.
2. See infra Part II.
3. See infra Part II.
4. See infra Part III.
5. See infra Part IV.
6. See infra Parts II, III.
7. See infra Parts II, III.
8. See infra Part IV.
596 Michigan State International Law Review [Vol. 27.3

the Menominee, the Menominee ought to be able to utilize some of those

same strategies to obtain protection for the Menominee River.

II. THE MĀORI OF NEW ZEALAND: A BRIEF HISTORY

A. The Treaty Of Waitangi

The history of the Whanganui River began long before Europeans

came to colonize New Zealand. The tribes who lived around the river
were the “Hinengākau of the upper river, Tama Ūpoko of the middle
[river] and Tūpoho of the lower Whanganui.”9 After Europeans began to
arrive in New Zealand, these tribes became known collectively as the
“Māori,” which initially meant “ordinary or local” in the Maori
language.10 Māori is the official government designation for the
Indigenous people of New Zealand.11 While the Whanganui River has
significant history prior to European colonization, the Treaty of Waitangi
in 1840 (“Treaty”) marked a significant shift in the history and use of the
Whanganui River.12 In essence, this Treaty gave Britain the right to rule
over New Zealand and made British immigrants in New Zealand full
citizens with legal rights.13 The Treaty was an agreement between 500
Māori Chiefs and the British government to officially make New Zealand
a British colony.14 The Treaty was prepared in English and then
translated into Māori by two missionaries in New Zealand.15 The
translation proved to be problematic in primarily two of the three

9. Diana Beaglehole, Whanganui places – Whanganui River, TE ARA – THE

ENCYCLOPEDIA OF N.Z. (June 15, 2015), http://www.TeAra.govt.nz/en/whanganui-
places/page-5.
10. Rawiri Taonui, Ngā tuakiri hōu – new Māori identities - Early Māori
identities, TE ARA - THE ENCYCLOPEDIA OF N.Z. (June 1, 2017),
http://www.TeAra.govt.nz/en/nga-tuakiri-hou-new-Māori-identities/page-1.
11. Id.
12. Jock Phillips, History of immigration - British immigration and the New
Zealand Company, TE ARA - THE ENCYCLOPEDIA OF N.Z. (Aug. 1, 2015),
http://www.TeAra.govt.nz/en/history-of-immigration/page-3.
13. Id.
14. Claudia Orange, Treaty of Waitangi, TE ARA - THE ENCYCLOPEDIA OF N.Z.
(June 20, 2012), http://www.TeAra.govt.nz/en/treaty-of-waitangi.
15. Id.
2019] The Fight for Ancestral Rivers 597

articles.16 In the first article of the Treaty, the English version gave
England “sovereignty over the land,” while the Māori version only gave
England “governance over the land.”17 Sovereignty has a stronger
connotation than mere governance, and the discrepancy between these
terms was a central component in the forthcoming interactions between
the Māori and the British government.18 In the second article of the
Treaty, the English version gave the British government the exclusive
right to negotiate with the Māori when buying land.19 In contrast, the
Māori version only gave the British the right to deal with the Māori
when buying land, and this right was not exclusive to the British.20
Additionally, the Treaty of Waitangi had protections for the Māori, but
the Treaty was often ignored or circumvented at the expense and to the
detriment of the Māori.21
An additional problem with the Treaty of Waitangi was that it was not
unanimously agreed to by all the Māori Chiefs.22 While 500 Māori
Chiefs did sign the treaty, there were some Chiefs who refused to sign
because of concerns with having New Zealand colonized, and some who
never had the chance to look at or sign the Treaty.23 Despite this lack of
unanimous agreement, the British government applied the Treaty to all
the Māori in New Zealand.24
Initially, the Treaty agreed to protect the Māori Chiefs’ claim to
power, but four years after the Treaty was signed, the British government
admitted to limiting the Māori Chiefs’ power because it clashed with the

16. Id.
17. Id.
18. Id.
19. Id.
20. Id.
21. Id.
22. Id.
23. Id.
24. Id.; Orange also argues that the Treaty of Waitangi was seen by
humanitarians as a way for Britain to redeem itself for the impacts its colonization
usually had on Indigenous people. CLAUDIA ORANGE, THE TREATY OF WAITANGI viii
(Bridget Williams Books 2015) (1987) [hereinafter TREATY OF WAITANGI BOOK].
However, the overarching intention of the Treaty was to destroy Māori society and
combine the Māori with the settler community. Id. This was motivated by self-
preservation; the settlers were a minority and not well armed, whereas the Māori were
populous and well-armed. Id. at ix.
598 Michigan State International Law Review [Vol. 27.3

power of the British government to rule over New Zealand.25 Tensions

reached an apex when, in 1858, the Māori selected a Māori King to
represent their interests and coexist in New Zealand alongside Queen
Victoria and the British government.26 The British government viewed
the election of a Māori King as a treasonous act and invaded Waikato, an
action which then escalated into warfare and additional battles.27 This
warfare resulted in the British taking a substantial amount of land from
the Māori, which directly violated the protections in the Treaty of
Waitangi for the Māori and their land.28 To address these concerns, the
Māori had many meetings with one another and sent hundreds of
petitions to the British government to try and reclaim the original
protections afforded to the Māori under the Treaty of Waitangi.29 Four
times from 1880 – 1924:

[D]eputations of Māori traveled to England to take petitions based on

the [T]reaty to the British monarch and the government. Each of these
petitions asked for [T]reaty rights to be observed. They were all
referred back by the Crown to the New Zealand Parliament
(“Parliament”), which denied breaching the treaty. 30

At this point in the converging history of the Māori and the British
government, it was clear to the Māori that the British government was
not honoring the Treaty of Waitangi as it had agreed to do.31
The Public Works Acts of 1864 and 1876 illustrate the lack of Treaty
enforcement regarding Māori land ownership. The Public Works Lands
Act of 1864 (“Act of 1864”) authorized the taking of “Native” land for

25. Orange, supra note 14, at Page 3.

26. Id.
27. Claudia Orange, Treaty of Waitangi - Dishonouring the treaty – 1860 to
1880, TE ARA - THE ENCYCLOPEDIA OF N.Z. (June 20, 2012),
http://www.TeAra.govt.nz/en/treaty-of-waitangi/page-4 [hereinafter Orange,
Dishonouring the treaty].
28. Id.
29. Claudia Orange, Treaty of Waitangi - Māori responses to the treaty – 1880 to
1900, TE ARA - THE ENCYCLOPEDIA OF N.Z. (June 20, 2012),
http://www.TeAra.govt.nz/en/treaty-of-waitangi/page-5 [hereinafter Orange, Responses
to the treaty].
30. Id.
31. Id.
2019] The Fight for Ancestral Rivers 599

any public purposes “necessary for the civilization of certain parts of the
Colony.”32 The Act of 1864 gave the British government, working
through the Governor, the ability to claim any lands that the government
had determined could be used for development, regardless of who owned
the lands.33 Once lands were seized, they belonged to the British
government and the Queen indefinitely; and to further throw salt in the
proverbial wound, compensation for the lands was only required in
“certain cases.”34 The Public Works Act of 1876 (“Act of 1876”) gave
the British government the ability to claim land for the government. 35 In
contrast to the Act of 1864, the Act of 1876 required surveyors to receive
special permission to survey Maori land.36 This ability of the British
government to create Acts that dealt with Māori land without first
consulting the Māori illustrates the power differential between the Māori
and the British government. The power to claim and designate land usage
overstepped the British government’s right of governance as outlined in
the Māori language version of the Treaty of Waitangi.37 The British
government had more power than the Māori Chiefs; thus, the British
government was acting much more like a “sovereign,” as outlined in the
English version of the Treaty of Waitangi but not the Māori language
version.38 Further, the Act of 1876 gave the British government power to
claim any natural or artificial river that was in a gold field or could
possibly supply a gold field.39 There was no exception made for rivers
that were either culturally or economically significant to the Māori, nor

32. The Public Works Lands Act 1864, s 2 (N.Z.),

http://www.nzlii.org/nz/legis/hist_act/pwla186428v1864n5324/.
33. Id. ss 3–4.
34. See id. s 5.
35. See The Public Works Act 1876, pt. 2 (N.Z.), http://www.nzlii.org/cgi-
bin/download.cgi/cgi-
bin/download.cgi/download/nz/legis/hist_act/pwa187640v1876n50279.pdf .
36. Id. at pt 3, para 78.
37. Id; Orange, supra note 14.
38. See Claudia Orange, Treaty of Waitangi - Interpretations of the Treaty of
Waitangi, TE ARA - THE ENCYCLOPEDIA OF N.Z. (June 20, 2012),
http://www.TeAra.govt.nz/en/treaty-of-waitangi/page-2 [hereinafter Orange,
Interpretations].
39. The Public Works Acts 1876, pt VIII, paras 199–200 (N.Z.).
600 Michigan State International Law Review [Vol. 27.3

was there any mention of the Māori in the Act of 1876, other than to
specify that special permission must be granted to survey their land.40
The Treaty of Waitangi again rose to the forefront of public discourse
in the 20th century, particularly in the 1970s.41 The Māori Affairs
Amendment Act of 1967 (“MAA Act of 1967”) gave the Parliament
government42 the ability to determine if Māori land was being put to its
most “efficient” use and, if not, to take action to “promote the effective
and profitable use and the efficient administration of Māori land in the
interest of the owners.”43 The Parliament government assessed Māori
land, and any land that was determined to be noneconomic was then
assigned to the Māori Trustee, which was a government office created in
1953.44 The Parliament government evaluated and graded the Māori’s
land based on how efficiently and profitably the Māori were using the
land.45 Based on that evaluation, the Parliament determined whether the
land should remain with the Māori owner or be given to a government
entity.46 The MAA Act of 1967 also “introduced compulsory conversion
of Māori freehold land with four or fewer owners into general land. It

40. Id. at para 78.

41. See generally Claudia Orange, Treaty of Waitangi - Honouring the treaty –
1940 to 2000s, TE ARA - THE ENCYCLOPEDIA OF N.Z. (June 20, 2012),
http://www.TeAra.govt.nz/en/treaty-of-waitangi/page-7 [hereinafter Orange, honouring
the treaty].
42. New Zealand officially became a fully sovereign nation in 1987 after it
passed the Constitution Act 1986. John Wilson, New Zealand Sovereignty: 1857, 1907,
1947, or 1987?, N.Z. PARLIAMENT (Aug. 28, 2007),
https://www.parliament.nz/resource/en-
NZ/00PLLawRP07041/6d87951341c92fc989bd5ef50648383cf1fd9598. It is arguable
whether the New Zealand Parliament was functioning as completely sovereign as early as
1947, but for purposes of this paper, the colonization of New Zealand and the impact that
had on the Māori was equally damaging whether the Parliament was acting as a sovereign
or not. Id.
43. Māori Affairs Amendment Act 1967, pt II, s 15 (N.Z.),
http://www.nzlii.org/cgi-bin/download.cgi/cgi-
bin/download.cgi/download/nz/legis/hist_act/maaa19671967n124232.pdf.
44. Id. at pt II, ss 17–18; see generally The Māori Trustee Act 1953 (N.Z.),
http://www.nzlii.org/nz/legis/hist_act/mta19531953n95200/.
45. The Māori Affairs Amendment Act 1967, pt II, s 15 (N.Z.),
http://www.nzlii.org/cgi-bin/download.cgi/cgi-
bin/download.cgi/download/nz/legis/hist_act/maaa19671967n124232.pdf.
46. Id. at pt II, s 17.
2019] The Fight for Ancestral Rivers 601

increased the powers of the Māori Trustee to compulsorily acquire and

sell so-called uneconomic interests in Māori land.”47 The Māori viewed
this Act as an excuse for the Parliament government to take more Māori
land.48 The MAA Act of 1967 added tension to the already problematic
relationship between the Māori and both the British and Parliament
government, particularly as it pertained to Māori land.49
In 1975, after the passage of the Māori Affairs Amendment Act of
1967, the Māori staged a large-scale march to protest the continued
taking of Māori land.50 The group of Māori protestors marched from the
far north area of Te Hāpua and walked approximately 622 miles to
deliver a petition with 60,000 signatures to the Parliament in
Wellington.51 The march started with fifty protesters and swelled to about
5,000 protesters by the time the group reached the Parliament.52 In
addition to this protest, there were several other protests on Waitangi
Day, which was a national holiday to celebrate the signing of the
Treaty.53 While New Zealand citizens protested the taking of Māori land,
Māori Members of Parliament (MPs) worked in the government to
improve relations between the Māori and the government.54 In response
to the growing tension with the Māori, the British government (through
the New Zealand Parliament) passed the Treaty of Waitangi Act of 1975,
which finally addressed the contention that the Treaty of Waitangi was
not being honored by the British or Parliament government.55 The
purpose of the Treaty of Waitangi Act of 1975 was:

47. Treaty Timeline: Treaty events since 1950, N.Z. HISTORY,

https://nzhistory.govt.nz/politics/treaty/treaty-timeline/treaty-events-1950 (last updated
May 17, 2017).
48. Id.
49. See Orange, honouring the treaty, supra note 41.
50. Id.
51. Whina Cooper leads land march to Parliament, N.Z. HISTORY,
https://nzhistory.govt.nz/whina-cooper-led-land-march-te-ropu-o-te-matakite-reaches-
parliament (last updated Mar. 13, 2018).
52. Id.
53. Orange, honouring the treaty, supra note 41.
54. Id.
55. Treaty Timeline: Treaty events since 1950, supra note 47; Treaty of Waitangi
Act 1975, Preamble (N.Z.), Preamble,
http://www.nzlii.org/nz/legis/hist_act/towa19751975n114226/.
602 Michigan State International Law Review [Vol. 27.3

[T]o provide for the observance, and confirmation, of the principles of

the Treaty of Waitangi by establishing a Tribunal to make
recommendations on claims relating to the practical application of the
Treaty and to determine whether certain matters are inconsistent with
the principles of the Treaty.

WHEREAS on the 6th day of February 1840 a Treaty was entered into
at Waitangi between Her late Majesty Queen Victoria and the Maori
people of New Zealand: And whereas the text of the Treaty in the
English language differs from the text of the Treaty in the Maori
language: And whereas it is desirable that a Tribunal be established to
make recommendations on claims relating to the practical application
of the principles of the Treaty and, for that purpose, to determine its
meaning and effect and whether certain matters are inconsistent with
those principles.56

This two-fold purpose—to establish the Waitangi Tribunal to enforce the

provisions of the Treaty of Waitangi and to respond to and remedy any
claims the Māori have—was the first significant step toward
acknowledging the discrepancies between the two different translations
of the Treaty and recognizing the disregard of the Treaty in land
acquisitions.57
However, there were still problems with the Treaty of Waitangi Act of
1975. First, the only complaints the Waitangi Tribunal could hear were
regarding issues that arose after the Act was signed in 1975.58 This
effectively ignored the unfair land acquisition practices and any other
complaints the Māori might have regarding their treatment by the British
government since New Zealand became a British colony.59 Second, the
Waitangi Tribunal could only act as fact finders and make
recommendations based on those findings.60 They were not able to make
any binding decisions to remedy any complaints they received.61

56. Treaty of Waitangi Act 1975, Preamble (N.Z.),

http://www.nzlii.org/nz/legis/hist_act/towa19751975n114226/.
57. Id.
58. Treaty Timeline: Treaty events since 1950, supra note 47; Treaty of Waitangi
Act 1975, s 6, subs c (N.Z.).
59. Treaty Timeline: Treaty events since 1950, supra note 47.
60. Id.
61. Id.
2019] The Fight for Ancestral Rivers 603

In 1980, the Māori formed into an official political party, the Mana
Motuhake party.62 The creation of the Mana Motuhake political party and
the creation of other Māori-specific political institutions aided in the
passage of an amendment to the Treaty of Waitangi Act of 1975.63 It was
due in part to this political lobbying that the problems in the Treaty of
Waitangi Act of 1975 were remedied.64 First, the Treaty of Waitangi
Amended Act of 1985 extended the Waitangi Tribunal’s authority to hear
complaints dating back to the formation of the Waitangi Treaty in 1840.65
Second, the Treaty of Waitangi Amended Act of 1985 also extended the
membership of the Waitangi Tribunal from just three government
appointed officials66 to a seven-person panel that must consist of at least
four Māori.67 Additionally, the members of the seven-person panel must
have knowledge and experience that would be relevant to matters that
might come before the Tribunal.68 Third, after the Treaty of Waitangi
Amended Act of 1985, the Treaty of Waitangi has been considered in
political decisions, and principles from it have been applied in numerous
legislative acts.69

62. Id.
63. See generally RICHARD S. HILL, MĀORI AND THE STATE: CROWN-MĀORI
RELATIONS IN NEW ZEALAND/AOTEAROA, 1950-2000 205–09 (2009). It is also significant
to note that in 1980, the Waitangi Tribunal published the Motunui Outfall Report of
1983, which asserted that traditional fishing grounds had been contaminated with
pollution and made recommendations of solutions that clashed with government policies.
Id. at 187. After this report was published, the Tribunal continued to break with
government policies and instead connected current issues with past happenings. Id.
64. See Orange, honouring the treaty, supra note 41.
65. Treaty of Waitangi Amendment Act 1985, pt 3, s 1, sub a (N.Z.),
http://www.nzlii.org/nz/legis/hist_act/towaa19851985n148306/.
66. Treaty of Waitangi Act 1975, pt 4 (N.Z.).
67. Treaty of Waitangi Amendment Act 1985, pt 2, s 2, sub b (N.Z.).
68. Id. sub 2a.
69. See Orange, honouring the treaty, supra note 41; see discussion of the New
Zealand government supra note 42.
604 Michigan State International Law Review [Vol. 27.3

B. The Whanganui Settlement And The Recognition Of Te Awa

Tupua

The Whanganui Tribes, who were later incorporated into the Māori,
have two main ancestors: Paerangi and Ruatipua.70 “Ruatipua draws
lifeforce from the headwaters of the Whanganui River on Mount
Tongariro and its tributaries which stretch down to the sea.”71 The Māori
call the Whanganui River “Te Awa Tupua” and view it as a living being
that is inseparable from themselves, thus they need to protect, manage,
and care for the Whanganui River.72 Te Awa Tupua is both what the
Māori call the Whanganui River and the concept of inseparability
between the people and the River.73
The British government interference with the Māori and their use of
the Whanganui River began after the British government purchased
86,200 acres of land that surrounded the Whanganui River.74 In the late
1800s, the British government established a steamer service that
destroyed the Māori’s eel weirs and fisheries, thus ruining a major food
source for the Māori.75 In addition to the steamer service, from 1893
through the 1920s, the British government extracted and sold gravel from
the Whanganui River, which further degraded the Māori’s ability to use
and preserve the Whanganui River.76 Further, in 1903, the Coal-Mines
Act Amendment gave the beds of all navigable rivers to the government,
stating that these beds had and always will belong to the government.77

70. Record of Understanding in relation to Whanganui River Settlement 2011

Between Whanganui Iwi and The Crown, para 1.1 (Oct. 13, 2011) (N.Z.),
https://www.govt.nz/dmsdocument/3700.pdf [hereinafter Record of Understanding in
relation to Whanganui River Settlement 2011].
71. Id.
72. Id. at paras 1.2–1.4.
73. Id.
74. Whanganui Iwi (Whanganui River) Deed of Settlement Summary 5 Aug 2014:
Summary of the historical background to the Whanganui River claims of Whanganui Iwi,
N.Z. GOV’T, https://www.govt.nz/treaty-settlement-documents/whanganui-
iwi/whanganui-iwi-whanganui-river-deed-of-settlement-summary-5-aug-
2014/background/ (last updated Oct. 31, 2016) [hereinafter Summary of the historical
background to the Whanganui River claims of Whanganui Iwi].
75. Id.
76. Id.
77. The Coal-mines Act Amendment Act 1903, para 14 (N.Z.).
2019] The Fight for Ancestral Rivers 605

The Supreme Court, and later the Court of Appeals, upheld the vestment
of the Whanganui River rights to the government because of the Coal-
Mines Act Amendment and the government’s purchase of the land that
surrounded the Whanganui River.78 While the government was using the
Whanganui River for its own benefit, the Māori asserted their ownership
and petitioned the government for compensation and recognition of their
rights to the River.79 In 1990, after decades of petitioning and filing
complaints, the members of the Whanganui River Māori Trust Board
filed the Whanganui River claim with the Waitangi Tribunal, which
helped facilitate the Whanganui River Settlement.80 The Māori have
continually fought to regain their rights to the Whanganui River and the
Whanganui River Settlement is the outcome of 144 years of petitioning
and lobbying.81
In 2011, the British government (referred to as the “Crown”) and the
Māori entered into a Record of Understanding, which laid the
groundwork for the Whanganui River Deed of Settlement.82 The Record
of Understanding essentially detailed the importance of the Whanganui
River to the Māori, the legal history of the Māori’s claims to the
Whanganui River, and the goals of future negotiations to settle any
claims regarding the Whanganui River that are based on the Treaty of
Waitangi.83 The Record also acknowledged that the Crown and the Māori
would be negotiating issues related to “[a] historical account, apologies
and acknowledgments and other relevant cultural redress; and financial
redress.”84 About one year after the Record of Understanding was signed,
an Agreement regarding Whanganui River claims, Tūtohu Whakatupua,

78. Summary of the historical background to the Whanganui River claims of

Whanganui Iwi, supra note 74. After the Supreme Court made its ruling, a Royal
Commission determined that the Māori should receive compensation for the gravel
extraction. Id. However, the Commission decision was overturned by the Court of
Appeals, who ultimately held that the Māori did not have ownership rights. Id.
79. Id.
80. Ruruku Whakatupua – Te Mana Te Iwi O Whanganui 2014, para 2.97 (N.Z.).
81. Summary of the historical background to the Whanganui River claims of
Whanganui Iwi, supra note 74.
82. See Record of Understanding in relation to Whanganui River Settlement
2011, supra note 70, ss 1.25–1.26.
83. See generally id. at para 1.1–1.19.4.
84. Id. at para 4.5.1–4.5.2.
606 Michigan State International Law Review [Vol. 27.3

was signed by the Māori and the Crown.85 This agreement dealt with
only the arrangements for legally acknowledging Te Awa Tupua.86 In
this agreement, the Crown and the Māori statutorily recognized the
Whanganui River as Te Awa Tupua, which provided the River with
standing as a legal entity.87 Importantly, the Tūtohu Whakatupua
explained the parties’ intention in vesting Te Awa Tupua with legal
personhood.88

2.7 The creation of a legal personality for the River is intended to:

2.7.1 reflect the Whanganui Iwi view that the River is a living entity in
its own right and is incapable of being “owned” in an absolute sense;
and

2.7.2 enable the River to have legal standing in its own right. 89

This agreement acknowledged that no one can own Te Awa Tupua as it

is its own being; thus, the Crown’s claims to the Whanganui River can
no longer exist.90 The agreement also included the appointment of two
guardian-type people, each known as the Te Pou Tupua, who will act in
the interest of Te Awa Tupua and carry out any necessary functions on
behalf of Te Awa Tupua.91
The Whanganui River Deed of Settlement (“Deed of Settlement”) was
the next step in gaining legal personhood status for the Whanganui River.
The Deed of Settlement was signed in 2014 and represents a formal
agreement between the Crown and the Māori to establish Te Awa Tupua
and settle any claims about the Whanganui River and the Treaty of

85. See Tūtohu Whakatupua 2012, (N.Z.),

https://www.govt.nz/dmsdocument/3706.pdf.
86. Id. s 2.1.
87. Id. ss 2.1.1–2.1.2. The legal language recognizing the Whanganui River as Te
Awa Tupua is: “Te Awa Tupua comprises the Whanganui River as an indivisible and
living whole, from the mountains to the sea, incorporating its tributaries and all its
physical and metaphysical elements.” Id. s 2.4.
88. Id. s 2.6–2.9.
89. Id. s 2.7–2.7.2.
90. Id. s 2.9–2.10.
91. Id. s 2.18–2.22.
2019] The Fight for Ancestral Rivers 607

Waitangi.92 The claims only apply to those actions that occurred before
September 1992.93 The Deed of Settlement acknowledges the Māori have
been fighting to have control over the Whanganui River since 1840,
when the Treaty of Waitangi was signed.94 The British government
consistently used the Whanganui River and passed Acts governing its use
without ever consulting with the Māori.95 This was problematic for the
Māori because the Māori hold the Whanganui River in high regard and
consider it to be “central to the existence of the Whanganui [Tribes] and
their health and wellbeing. The Whanganui River has provided both
physical and spiritual sustenance . . . from time immemorial.”96 The
Whanganui River is culturally significant to the Māori people, hence
their interest in protecting and preserving it goes beyond normal
environmental concerns.97
The Settlement is broken into two parts:

[1] Ruruku Whakatupua – Te Mana o Te Awa Tupua is primarily

directed towards the establishment of a new legal framework (Te Pā
Auroa nā Te Awa Tupua) for the Whanganui River that is centered on
the legal recognition of the Whanganui River from the mountains to the
sea, incorporating its tributaries and all its physical and metaphysical
elements, as an indivisible and living whole – Te Awa Tupua.

92. See Ruruku Whakatupua – Te Tānekaha Supplementary Deed 2016 (N.Z.).

As at least one legal scholar has noted, the Deed of Settlement is also notable for its use
of Māori language and reference to traditional Māori sayings in each section. Linda Te
Aho, Ruruku Whakatupua Te Mana o te Awa Tupua – Upholding the Mana of the
Whanganui River, MĀORI L. REV. (2014), http://Māorilawreview.co.nz/2014/05/ruruku-
whakatupua-te-mana-o-te-awa-tupua-upholding-the-mana-of-the-whanganui-river/#note-
4549-1. The use of specific Māori phrases reinforces the interconnected nature of the
relationship between the Māori and the Whanganui River, which is one of the most
important acknowledgments in the Deed of Settlement. Id. This acknowledgment helps to
set the tone and intention for the entire document. Id.
93. Whanganui Iwi (Whanganui River) Deed of Settlement Summary 5 Aug 2014,
N.Z. GOV’T, https://www.govt.nz/treaty-settlement-documents/whanganui-
iwi/whanganui-iwi-whanganui-river-deed-of-settlement-summary-5-aug-2014/ (last
updated Oct. 31, 2016).
94. See Summary of the historical background to the Whanganui River claims of
Whanganui Iwi, supra note 74.
95. Id.
96. Id. at General Background.
97. Id.
608 Michigan State International Law Review [Vol. 27.3

[2] Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui is primarily

directed towards Whanganui Iwi and the recognition and further
development of the relationship between Whanganui Iwi and the
Whanganui River through both cultural and financial redress.98

The Whanganui River Māori Trust Board represented the Māori in the
negotiations, while the Office of Treaty Settlements represented the
government in the day-to-day proceedings.99
The first part of the Settlement, Ruruku Whakatupua – Te Mana o Te
Awa Tupua, explains the framework under which the Whanganui River
can operate as a legal person, which was established in the Tūtohu
Whakatupua.100 The second part of the Settlement, Ruruku Whakatupua
– Te Mana o Te Iwi o Whanganui, details the history of the Whanganui
River and the confrontations between the Crown and the Māori regarding
its use,101 as well as addresses issues of redress and contains an apology
from the Crown.102
Finally, in March 2017, the Te Awa Tupua (Whanganui River Claims
Settlement) Act of 2017 (“Settlement Act”) was passed.103 The purpose
of this legislation was to formally give legal effect to the agreement
reached in the Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui.104
Unlike the Deed of Settlement, the Settlement Act legally binds the
Crown to the agreement.105 In the Settlement Act, the Crown vested a fee
simple estate in Te Awa Tupua for the parts of the Whanganui River bed

98. Whanganui Iwi (Whanganui River) Deed of Settlement Summary, supra note
93.
99. Summary of the historical background to the Whanganui River claims of
Whanganui Iwi, supra note 74.
100. Whanganui Iwi (Whanganui River) Deed of Settlement Summary 5 Aug 2014:
Redress, N.Z. GOV’T, https://www.govt.nz/treaty-settlement-documents/whanganui-
iwi/whanganui-iwi-whanganui-river-deed-of-settlement-summary-5-aug-2014/ (last
updated Oct. 31, 2016); Tūtohu Whakatupua 2012, para 1.2 (N.Z.)
https://www.govt.nz/dmsdocument/3706.pdf.
101. See generally Ruruku Whakatupua – Te Mana Te Iwi O Whanganui 2014,
paras 2.27 – 2.98 (N.Z.).
102. Whanganui Iwi (Whanganui River) Deed of Settlement Summary 5 Aug 2014:
Redress, supra note 100 at Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui;
Ruruku Whakatupua – Te Mana Te Iwi O Whanganui 2014, paras 3.20 – 3.25.
103. See Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (N.Z.).
104. Id. ss 3(a)–(c).
105. Id. s 5.
2019] The Fight for Ancestral Rivers 609

it owned, except for any legal road, railway infrastructure, any part of the
bed that was owned under the authority of the Public Works Act of 1981
or “located in the marine and coastal area.”106 As compensation for the
use of the Whanganui River and to support the health and well-being of
Te Awa Tupua, the Crown agreed to first pay $30,000,000 New Zealand
dollars and then make annual payments of $200,000 New Zealand
Dollars for 20 years 107 to Te Awa Tupua for its management.108
The Māori, specifically the Whanganui Tribes, fought a long, but
ultimately successful battle to regain rights to the Whanganui River,
which is considered to be inseparable from themselves and part of their
ancestral history.109 After over 100 years of social awareness campaigns,
petitioning, and filing complaints, the Whanganui River was finally
given the respect the Māori had fought so hard to obtain.110 The
Whanganui River is officially recognized as Te Awa Tupua, is being
cared for by Te Pou Tupua, and has $30,000,000, plus continuing
payments, in a fund for its care.111

III. THE MENOMINEE TRIBE OF WISCONSIN: A BRIEF HISTORY

A. The Menominee and the United States Federal Government

The Menominee Tribe of Wisconsin (“Menominee” or “Tribe”) is

located in northern Wisconsin, near the Upper Peninsula of Michigan in
the United States of America.112 The Menominee are the oldest
continuous residents of this area and are known for cultivating wild rice

106. Id. ss 40 – 41.

107. Kelly Buchanan, New Zealand: Bill Establishing River as Having Own Legal
Personality Passed, LIBRARY OF CONGRESS (Mar. 22, 2017),
http://www.loc.gov/law/foreign-news/article/new-zealand-bill-establishing-river-as-
having-own-legal-personality-passed/.
108. Ruruku Whakatupua – Te Mana O Te Awa Tupua 2014, para 7.1 (N.Z.); Te
Awa Tupua (Whanganui River Claims Settlement) Act 2017, para 57(2) (N.Z.).
109. See supra Section II.B.
110. See supra Section II.B; see supra Part II.
111. See supra Section II.B.
112. Menominee People, ENCYC. BRITANNICA,
https://www.britannica.com/topic/Menominee-people. (last visited Jan.14, 2018).
610 Michigan State International Law Review [Vol. 27.3

and oats.113 However, after four treaties and two federal acts, the
Menominee Tribe now lives on land 1/39th the size of their pre-
colonization land.114 The Menominee are currently fighting the
installation of the Back Forty Mine on the Menominee River, which
creates the border between Wisconsin and Michigan.115
It is not mere coincidence that the Menominee River and the
Menominee people share a namesake. The Menominee origin story
begins at the mouth of the Menominee River:116

After the plants and animals and other living things had all been made,
a great bear with a copper tail arose from the ground beside the
Menominee River. As the bear explored the land . . . the Great Spirit
changed him into a person. This bear became the first Menominee.
Walking along the river, the bear noticed an eagle flying in the sky. He
called out to the eagle, saying “Come and join me and be my brother.”
As the bird flew down, the Great Spirit changed him into a Menominee
as well. The two brothers, bear and eagle, continued on their journey.
In turn, they came upon the beaver, sturgeon, elk, crane, wolf, dog and
deer. All of them were changed into human beings as well, becoming
members of the Menominee tribe. The bear and eagle were the elder
brothers and formed the tribe’s major groups, or clans. The earliest
Menominee chiefs came from the Bear clan, while the great warriors
came out of the Eagle clan.117

The Menominee believe that their entire existence began at the

Menominee River, thus making this area one of significant importance to
the Menominee people and culture.118 In addition to the area having ties
to the Menominee’s origin, there are also Menominee “burial mounds,

113. BRIAN KOWALKOWSKI, FACTS AND FIGURES REFERENCE BOOK 1– 2 (2004),

http://www.menominee-
nsn.gov/CulturePages/Documents/FactsFigureswithSupplement.pdf.
114. Verna Fowler, Creation Story, in WISCONSIN INDIAN LITERATURE:
ANTHOLOGY OF NATIVE VOICES 11 (Kathleen Tigerman ed., 2006); Menominee Indian
Tribe of Wis. v. Thompson, 161 F.3d 449, 452–53 (7th Cir. 1998).
115. No Back 40 Mine, THE MENOMINEE TRIBE OF WIS., http://www.noback40.org
(last visited Jan. 14, 2018).
116. Id.
117. Fowler, supra note 114, at 11.
118. See No Back 40 Mine, supra note 115.
2019] The Fight for Ancestral Rivers 611

places of worship, village sites . . . raised agricultural gardens,” and

sacred sites around the Menominee River.119 These cultural sites would
be impacted by the building of the Back Forty Mine.120
The Menominee Nation and the U.S. government signed four treaties
between 1831 and 1854.121 The first treaty was signed in 1831, in which
the Menominee ceded the land to the southeast of Winnebago Lake, Fox
River, and Green Bay to the U.S. Federal Government.122 In this Treaty,
the Menominee also relinquished their rights to a large amount of
acreage west of the Fox River.123 As payment for the land, the federal
government “agreed to protect, pay and provide various goods and
services to the Menominee Tribe.”124 Another provision in the Treaty of
1831 allowed the Menominee to retain their right to hunt and fish on
some of the land that had been ceded; however, this right was only
enjoyed up until the time that the current U.S. President surveyed and
offered the land for sale or otherwise decided the Menominee should no
longer have that right.125 Not long after the Treaty of 1831 was signed,
the land where the Menominee had fishing and hunting rights was sold to
white settlers and the federal government determined the Menominee no
longer had their fishing and hunting rights.126
The next treaty between the Menominee and the federal government
was the Treaty of 1836.127 In the Treaty of 1836, the Menominee ceded
more land west of the Fox River.128 The Treaty of 1848 was the third
treaty signed by the Menominee Tribe and the federal government.129
The Treaty of 1848 was an exchange of all Menominee land in

119. Id.; Menominee Nations Opposition to the Proposed Back Forty Mine, THE
MENOMINEE TRIBE OF WIS., http://www.noback40.org/Documents/Back40Handout.pdf
(last visited Jan. 14, 2018) [hereinafter Menominee Nations Opposition to the Proposed
Back Forty Mine].
120. Menominee Nations Opposition to the Proposed Back Forty Mine, supra note
119.
121. Menominee Indian Tribe of Wis. v. Thompson, 161 F.3d 449, 452–53.
122. Id. at 452.
123. Id.
124. Id.
125. Id.
126. Id. at 452, 458.
127. Id. at 452.
128. Id.
129. Id. at 453.
612 Michigan State International Law Review [Vol. 27.3

Wisconsin for a minimum of 600,000 acres in Minnesota and

$350,000.130 This exchange did not come to fruition; after visiting the
land in Minnesota, the Menominee Chiefs negotiated for new terms that
allowed the Menominee to remain in Wisconsin.131 The final treaty
between the Menominee and the federal government was signed in 1854
and is known as the Wolf River Treaty.132 The Wolf River Treaty
exchanged the Menominee’s 600,000 acres in Minnesota for 276,480
acres of the Menominee’s original land in Wisconsin.133 This land
comprises the current Menominee reservation in Wisconsin.134
In 1954, an era known as the Termination Era, the U.S. government
tested the idea of integrating economically successful tribes into the U.S.
economy; the Menominee were one of several tribes that this idea was
tested on.135 The U.S. government did this by terminating the federal
tribe status for the Menominee Tribe and removing federal aid and
services from the Tribe.136 The federal withdrawal of the Menominee’s
tribal and reservation rights caused widespread problems for the
Menominee Tribe.137 These problems included a lack of medical care,
lack of infrastructure, and a lack of money, the latter of which forced the
Menominee to sell off some of their reservation land for vacation homes
to be built on.138 The Termination Era lasted about fifteen years and
resulted in social and economic devastation for many tribes.139 However,
for the Menominee in particular, this devastation lasted for nearly twenty
years, from 1953 until 1973.140 The end of the Termination Era did not
apply universally to all tribes, rather individual tribes had to ask

130. Id.
131. KOWALKOWSKI, supra note 113, at 3.
132. Id.; Menominee Indian Tribe of Wis. v. Thompson, 161 F.3d 449, 453.
133. KOWALKOWSKI, supra note 113, at 3.
134. Id.
135. William Greider, House Vote Backs Aid For Tribe, WASH. POST, TIME
HERALD, Oct. 17, 1973, at A4. The Menominee had a successful logging operation in the
early 1900s. KOWALKOWSKI, supra note 113, at 3.
136. Greider, supra note 135.
137. See Patricia L. Raymer, Canceled Reservation: Termination Tribulations or
Don’t Cancel My Reservation, WASH. POST, TIMES HERALD, Apr. 15, 1973, at G1.
138. Id.; Greider, supra note 135.
139. WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 61, 64 (5th
ed. 2009).
140. Id. at 64
2019] The Fight for Ancestral Rivers 613

Congress to repeal the Act that terminated their federal Indian status.141
The Menominee were once again recognized as a sovereign Indian Tribe
by the federal government after H.R.10717 passed and repealed the
termination of their federal status.142 After the Termination Era, questions
regarding hunting and fishing rights arose, which resulted in a Supreme
Court case to determine which, if any, treaty rights remained after the
Termination Act.143 In Menominee Tribe of Indians v. U.S., the Supreme
Court held that the Termination Era legislation did not displace the
Menominee’s rights to hunting and fishing as provided under the Wolf
River Treaty.144

B. The Back Forty Mine

As previously mentioned, the Menominee Tribe is currently fighting

to prevent the construction and opening of the Back Forty Mine on the
Menominee River.145 The Back Forty Mine would be an open-pit-sulfide
mine and would operate on the Michigan side of the Menominee
River.146 The Back Forty Mine is “about 20 miles upstream of the city of

141. Id.
142. See Menominee Restoration Act, Pub. L. No. 93-197, 87 STAT. 770 (1973).
143. Menominee Tribe of Indians v. United States, 391 U.S. 404, 411 (1968).
Similarly, the Sixth Circuit Court of Appeals held that treaty rights that are given cannot
be diminished by state law. United States v. Michigan, 653 F.2d 277, 278–79 (6th Cir.
1981). Issues regarding hunting and fishing rights for Michigan-based tribes were
presented before the Court. Id. at 278–80. The Court held that the rights to fishing that
were found in a treaty were:

federally created and federally protected rights. The protection of those rights is the
solemn obligation of the federal government, and no principle of federalism requires the
federal government to defer to the states in connection with the protection of those rights.
The responsibility of the federal government to protect Indian treaty rights from
encroachment by state and local governments is an ancient and well-established
responsibility of the national government.
Id. at 278–79.
144. Menominee Tribe of Indians, 391 U.S. at 411–12.
145. THE MENOMINEE TRIBE OF WIS., supra note 115.
146. Paul Srubas, Proposed mine pits neighbor against neighbor, GREEN BAY
PRESS-GAZETTE (Aug. 24, 2017, 10:55 PM),
http://www.greenbaypressgazette.com/story/news/2017/08/24/proposed-mine-
614 Michigan State International Law Review [Vol. 27.3

Menominee and would be just 150 feet from the [river’s] shore.”147 Thus
far, the mining company, Aquila Resources (“Aquila”), has three of the
four permits148 it needs from the Michigan Department of Environmental
Quality to open the mine: an air permit, a metallic mineral mining
permit, and a National Pollutant Discharge Elimination System permit.149
Aquila is only waiting on its wetlands permit, which is necessary because
the Back Forty Mine will destroy some wetlands; however, Aquila has
promised to pay to conserve wetlands further downstream. 150 After the
mine is closed, the processing chemicals, including cyanide, and leftover
rock will be stored.151 Problematically, the mixture of leftover chemicals
and rocks, primarily the cyanide and sulfide, becomes a toxic acid when
mixed with air and water.152
The Menominee object to the building of the Back Forty Mine for
primarily two reasons.153 First, the mine will cover an area that includes

pits-neighbor-against-neighbor/550494001/ [hereinafter Srubas, Proposed mine

pits].
147. Id.
148. Paul Srubas, Aquila Resources gets fourth, final Back Forty mine permit, but
with strings attached, GREEN BAY PRESS-GAZETTE (June 5, 2018),
https://www.greenbaypressgazette.com/story/news/2018/06/04/back-forty-mine-aquila-
final-permit-michigan-opponents-fight-menominee-tribe-river-sulfide-open-
pit/671503002/ [hereinafter Srubas, Aquila gets fourth permit]. Since writing this note,
Aquila has gotten approval for the fourth permit from the Michigan DEQ. Id. However,
the final permit is being contested and there are both administrative and federal lawsuits
being filed to contest it. See generally Menominee Indian Tribe of Wisconsin,
Menominee Tribe Challenges Michigan DEQ For Greenlighting Back Forty Mine,
INTERCONTINENTAL CRY (Aug. 7, 2018), https://intercontinentalcry.org/menominee-tribe-
challenges-michigan-deq-for-greenlighting-back-forty-mine/; Patty Murray, Federal
Judge Hears Oral Arguments In Back Forty Mine Case, WIS. PUB. RADIO (Aug. 2, 2018,
6:35 AM), https://www.wpr.org/federal-judge-hears-oral-arguments-back-forty-mine-
case; Paul Srubas, Group believes EPA and Corps of Engineers, not Michigan, should
control mining permits, GREEN BAY PRESS-GAZETTE (Nov. 15, 2018),
https://www.greenbaypressgazette.com/story/news/2018/11/15/sulfide-menominee-
aquila-back-40-mining/2016230002/ [hereinafter Srubas, EPA and Corps of Engineers
should control permits].
149. Srubas, Proposed mine pits, supra note 146.
150. Id.
151. Id.
152. Id.
153. See Press Release, Office of the Chair Menominee Tribe of Wis., Menominee
Indian Tribe Calls Approval of Aquila Res. “Back Forty” Mine Permit Absolute failure to
2019] The Fight for Ancestral Rivers 615

twenty-four sites of cultural and historical significance to the Menominee

people.154 The mouth of the Menominee River is the site of origin of the
Menominee clans and the area has long been populated by Menominee
people.155 Due, in part, to the culturally sensitive nature of the location of
the Back Forty Mine, other Native American Associations have written
in support of the Menominee’s opposition to the Back Forty Mine.156 For
instance, the National Indian Education Association is concerned about
the impact to Menominee children who are trying to learn about the
origin of their tribe:

Native students with access to education grounded in their culture,

language, history, and traditions are more likely to succeed in the
classroom and beyond. For generations, Native peoples have retained a
cultural and spiritual relationship with their ancestral lands. Culturally
significant sites connect Native students to the history, culture, and
traditions of their people. In this way, sacred sites are critical for the
success of Native students.157

An Aquila representative has spoken about the possible degradation or

destruction of an area of significant cultural importance.158 In an
interview with a local newspaper, David Anderson, Aquila’s Director of
Environment and Regulatory Affairs, said Aquila has carefully mapped

protect water, env’t, and Tribes Cultural Res. (Dec. 29, 2016), http://www.menominee-
nsn.gov/GovernmentPages/Initiatives/Back40Mine/Documents/1228Statement.p
df; Compl. for Declaratory and Injunctive Relief at 2, Menominee Indian Tribe of Wis. v.
U.S. Environmental Protection Agency, No. 1:18-cv-00108 (E.D. Wis. Jan. 22, 2018).
154. Office of the Chair Menominee Tribe of Wis., supra note 153.
155. See supra Section III.A.
156. Midwest Alliance of Sovereign Tribes, Resolution No. 011-17: Opposition to
the Proposed Back Forty Mine Project (2017),
http://www.noback40.org/Documents/MASTResolution.pdf. The Midwest Alliance of
Tribes is one such organization. See generally id.
157. Letter from Yatibaey Evans, President, Nat’l Indian Educ. Ass’n, to Gary
Besaw, Chairman, Menominee Indian Tribe of Wis. (Mar. 31, 2017),
http://www.noback40.org/Documents/NIEALetter.pdf.
158. Srubas, Proposed mine pits, supra note 146. However, there is no information
on Aquila’s own website about what it is doing to address the claims of the Menominee
that the mining operation will harm areas of cultural significance. See Back Forty,
AQUILA RES., https://aquilaresources.com/projects/back-forty-project/ (last visited
Jan. 15, 2018).
616 Michigan State International Law Review [Vol. 27.3

around sites of cultural significance so that the sites will remain

preserved.159 However, the proposed mapping technique does not fully
address the Menominee’s key concerns of damage to sites of cultural and
historical significance and the contamination of the Menominee River.160
Pollution or destruction to the Menominee River would hurt the Tribe’s
wild rice production, fishing, and subsequent consumption of Lake
Sturgeon, all of which is of cultural and religious importance to the
Tribe.161
The Menominee’s second objection to the building of the Back Forty
Mine involves environmental concerns.162 For instance, there is a risk
that the Menominee River will become contaminated from the toxic mix
of chemicals produced by building and running the mine.163 The
Menominee River runs approximately 120 miles from Northern
Wisconsin and Upper Michigan into the Green Bay drainage area of
Lake Michigan.164 The Menominee River is also one of the largest
watersheds in the Lake Michigan drainage basin system. 165 The threat of
pollution to the Menominee River poses a risk for all people who use the
river and the subsequent Great Lakes for drinking water.166 While Aquila
maintains that the Back Forty Mine will operate in an environmentally

159. Srubas, Proposed mine pits, supra note 146.

160. See generally Menominee Nations Opposition to the Proposed Back Forty
Mine, supra note 119.
161. Compl. for Declaratory and Injunctive Relief at 9–10, Menominee Indian
Tribe of Wis. v. U.S. Environmental Protection Agency, No. 1:18-cv-00108 (E.D. Wis.
Jan. 22, 2018).
162. Office of the Chair Menominee Tribe of Wis., supra note 153; Srubas,
Proposed mine pits, supra note 146.
163. Office of the Chair Menominee Tribe of Wis., supra note 153; Srubas,
Proposed mine pits, supra note 146.
164. Menominee River [MI, WI], AM. RIVERS,
https://www.americanrivers.org/endangered-rivers/menominee-river-mi-wi/ (last visited
Feb. 27, 2018).
165. Id.
166. See Office of the Chair Menominee Tribe of Wis., supra note 153; Srubas,
Proposed mine pits, supra note 146.
2019] The Fight for Ancestral Rivers 617

responsible way,167 critics assert that there is no environmentally

responsible way to mine that area.168

C. The Legal Battle Between the Aquila and the Menominee

Aquila currently has three of the four permits169 from the Michigan
Department of Environmental Quality that it needs to build the Back
Forty Mine.170 “The Nonferrous Metallic Mineral Mining Permit and the
Michigan Air Use Permit to Install for the project were approved by the
[Michigan Department of Environmental Quality] on December 28,
2016. The National Pollutant Discharge Elimination System (NPDES)
permit was approved on April 5th, 2017.”171 The Menominee have
challenged the permits through the Michigan administrative law
system.172 In February 2017, the Menominee Tribe filed a petition for a
contested case hearing on the approval of the mining permits for the
Back Forty Mine.173
In addition to filing for a contested case hearing, the Menominee are
working with Earth Justice, an environmental legal group.174 Together,

167. AQUILA RES., Aquila Resources Announces Positive Feasibility Study Results
For Its Back Forty Project 1 (Aug. 1, 2018), https://aquilaresources.com/wp-
content/uploads/2018/08/Aquila-PR-Back-Forty-Feasibility-Study-Aug-1-2018.pdf.
168. See generally Srubas, Proposed mine pits, supra note 146. Press Release,
Office of the Chair Menominee Tribe of Wis., Earth Day: Menominee Indian Tribe
Applauds Conservation Grp. Naming Menominee River to Top 10 Most Endangered List
(Apr. 21, 2017), http://www.noback40.org/Documents/earthday4212017.pdf.
169. Srubas, Proposed mine pits, supra note 146. Since the writing of this note,
Aquila has received all four permits, but there are still ongoing lawsuits. Srubas, Aquila
gets fourth permit, supra note 148; INTERCONTINENTAL CRY, supra note 148; Murray,
supra note 148; Srubas, EPA and Corps of Engineers should control permits, supra note
148.
170. AQUILA RES., supra note 158.
171. THE MENOMINEE TRIBE OF WIS., supra note 115.
172. Press Release, Office of the Chair Menominee Indian Tribe of Wis.,
Menominee Indian Tribe of Wis. Challenges Mich. Dep’t of Envtl. Quality’s (MDEQ)
Approval of Aquila Res.’s Back Forty Mine Permit (Feb. 27, 2017),
http://www.noback40.org/Documents/22817PressRelease.pdf.
173. Id.
174. Menominee Tribe Takes Action to Protect Its Namesake River, EARTHJUSTICE
(Nov. 6, 2017), https://earthjustice.org/news/press/2017/menominee-tribe-takes-action-to-
protect-its-namesake-river.
618 Michigan State International Law Review [Vol. 27.3

Earth Justice and the Menominee Tribe submitted a 60-Day notice of

intent to sue under the provisions in the Clean Water Act and a
Complaint for Declaratory and Injunctive Relief. 175 The main issues in
this case pose interesting legal ramifications. The National Historic
Preservation Act requires the U.S. Federal Government to consult with
Native American Tribes that have any religious or cultural ties to an area
under consideration for a permit to dredge and fill river areas, even if that
area is not on the Tribe’s reservation.176 Despite the Clean Water Act
being a federal program, Michigan is one of two states that reviews and
issues the dredge and fill permits in lieu of the federal government.177
States that are administering the federal government’s responsibilities are
not required to follow the law that requires consultation with Tribes that
have a cultural or religious interest in the area to be mined.178 Michigan’s
own laws require “a permit applicant to consider impacts to ‘cultural,
historical, or archaeological resources.’”179 Despite this perceived
protection, the resources that are actually protected under Michigan law
are much narrower than the resources protected by federal law.180 For
instance, Michigan law only includes areas that are presently listed as
being historically significant, not areas that are thought to be historically
significant.181 Arguably, the most problematic part of Michigan
administering the permit in lieu of the federal government is that the
Department of Environmental Quality is only required to consult with
federally recognized tribes in Michigan.182 The Menominee Tribe is
located in Wisconsin; thus, the Michigan Department of Environmental

175. Id.; see 60 Day Notice of Intent to Sue, Janette K. Brimmer & Stephanie
Tsosie, Earthjustice, Counsel for the Menominee Tribe of Wisconsin (Nov. 6, 2017),
https://earthjustice.org/sites/default/files/files/60%20Day%20Notice%20Letter%20back
%20Forty%20Mine%20Project.pdf; see generally 33 U.S.C. § 1251 et seq.
176. Gussie Lord, Federal Delegation to States of Clean Water Act Section 404
Permitting May Result in Reduced Consultation with Tribes Regarding Historic
Preservation, 12 NATIVE AM. RES. COMM. NEWSLETTER (A.B.A., Env’t, Energy, and
Res.), 13 (2016), https://turtletalk.files.wordpress.com/2016/09/2016-08-aba-seer-native-
american-resources-cmte-newsletter-vol12-no-1.pdf.
177. Id.
178. Id. at 13–14.
179. Id. at 14.
180. Id.
181. Id.
182. Id.
2019] The Fight for Ancestral Rivers 619

Quality argues it does not need to consider the Menominee’s concerns

when deciding whether or not to grant the Back Forty Permit.183 The
current debate is whether the state that has been delegated federal
authority must also consult with all affected Tribes, similar to the process
the federal government would have to follow had the authority not been
delegated.
In addition to the 60-day notice of intent to sue and the Complaint for
Declaratory and Injunctive Relief, the Menominee have also sent letters
to the Federal Environmental Protection Agency and the Federal Army
Corps of Engineers asking these agencies to step in and exercise
authority over the permitting of the Back Forty Mine.184 Earth Justice and
the Menominee assert that the federal government has the responsibility
to determine if Aquila receives the permit for the Back Forty Mine. 185
The Back Forty construction and eventual mining will have an effect on
waters outside of Michigan; hence, it is the federal government that
should be deciding the permits—a decision this large, with this great of
an impact should not be left up to a singular state.186 If Earth Justice and
the Menominee prevail, the federal government will have authority over
granting the permit and will have to assess what impact the Back Forty
Mine will have on Menominee sites of cultural and historical
significance, as well as the risk of environmental degradation to the
Menominee River.187
The battle over the Back Forty has been going on for several years
and is still ongoing.188 One solution for obtaining protection for the
Menominee River and its associated areas of cultural and historical

183. Id.
184. See EARTHJUSTICE, supra note 174.
185. Id.
186. Id.
187. Lord, supra note 176. In the lawsuit the Tribe has filed in the Eastern District
of Wisconsin, the Tribe is seeking “a declaration that either; EPA and the Corps have
failed in their mandatory duty to exercise jurisdiction over . . . permitting jurisdiction
over the Back Forty Mine;” or that the EPA and Corps’ refusal to exercise jurisdiction is
a final agency action, and thus, subject to arbitrary and capricious review. Compl. for
Declaratory and Injunctive Relief at ¶ 5, Menominee Indian Tribe of Wis., No. 1:18-cv-
00108. Additionally, the Menominee are seeking an order to the EPA and Corps to
exercise jurisdiction over the permitting process as a form of injunctive relief. Id.
188. See THE MENOMINEE TRIBE OF WIS., supra note 115.
620 Michigan State International Law Review [Vol. 27.3

significance is to look to the process in New Zealand that obtained legal

personhood status for the Whanganui River.189

IV. COMPARING THE MĀORI AND THE MENOMINEE: AN

ANALYSIS OF SOCIAL AND POLITICAL STRATEGIES

This section will investigate the similarities between the Māori and
their ties to the Whanganui River, and the Menominee Tribe and their
ties to the Menominee River. First, both Indigenous groups hold their
respective Rivers in high cultural regard and have actively sought to
protect their Rivers.190 Second, both Indigenous groups have suffered
from settler-colonial policies and treaties which caused them to lose
exclusive control over their sacred land and rivers.191 It is through
analyzing these similarities that this note will argue some of the same
techniques used in New Zealand should be utilized by the Menominee in
the United States. Finally, this section will end with briefly addressing
the differences between the two Indigenous groups and their efforts to
preserve their respective River, as well as the difficulties that being in a
U.S. government framework presents.
First, the Whanganui River and the Menominee River are both
extremely important to the Māori and the Menominee respectively. The
Māori have a saying, “‘Ko au te awa. Ko te awa ko au’” which means “I
am the river. The river is me.”192 The Māori that live around the
Whanganui River are often referred to as the “tribes of Whanganui” and
derive “their name, their spirit and their strength from the great river.”193
The Whanganui Tribes believe that the Whanganui River was the life
force for one of their ancestors and, as such, the Whanganui River and
the people are inseparable, a concept known as Te Awa Tupua.194 The
tribes of Whanganui would catch eels and other fish in the Whanganui
River and they depended on the River for travel and as a gathering place

189. See supra Section II.B and Part III.

190. See generally supra Parts II, III.
191. See generally supra Parts II, III.
192. David Young, Story: Whanganui tribes, TE ARA - THE ENCYCLOPEDIA OF
N.Z., https://teara.govt.nz/en/whanganui-tribes (last updated Mar. 22, 2017).
193. Id.
194. Record of Understanding in relation to Whanganui River Settlement 2011,
supra note 70, ss 1.2 – 1.4.
2019] The Fight for Ancestral Rivers 621

to situate their villages.195 Similarly, the Menominee’s origin story is

centered around their ancestors’ interaction with the Menominee
River.196 The Menominee people also positioned themselves around the
Menominee River and used it for fishing and travel.197 It is not a
coincidence that both the Whanganui River and the Menominee River
share a namesake with the Indigenous group that cares for and protects
them. The name of each River alone illustrates how important each River
is to the history, culture, and religion of each Indigenous group.198
Second, both the Māori and the Menominee have been involved with
treaties that ceded their right to ancestral lands.199 New Zealand was
colonized by the British in 1840, which was marked with the signing of
the Treaty of Waitangi.200 This Treaty resulted in decades of land loss
and loss of control over the industrialization of the Whanganui River.201
It was not until the 1970s that the Māori were able to get legislation
passed that addressed their claims of unfair treatment under the Treaty of
Waitangi.202 The passage of the Treaty of Waitangi Act of 1975 signaled
the beginning of the process that led to the Whanganui River obtaining
legal personhood recognition.203 The purpose of that Act was to address
Māori claims of unfair treatment under the Treaty of Waitangi.204 One of
the Māori’s main contentions was the dispossession of their rights to and
control of the Whanganui River.205 The British colonization of the Māori,
as evidenced in the Treaty of Waitangi and its application, deprived the
Māori of the ability to care for their ancestral River as they had done
since time immemorial.206 Likewise, the Menominee dealt with U.S.

195. Young, supra note 192.

196. See supra Section III.A.
197. See supra Section III.A.
198. See generally Young, supra at note 192; see also Record of Understanding in
relation to Whanganui River Settlement 2011, supra note 70, ss 1.2 – 1.4.
199. See supra Sections II.A, III.A.
200. See supra Section II.A.
201. See generally Orange, Dishonouring the treaty, supra note 27; see also The
Public Works Acts 1876, Part VIII, paras 199-200 (N.Z.); Māori Affairs Amendment Act
1967, pt II, s 15 (N.Z.).
202. See Treaty Timeline: Treaty events since 1950, supra note 47.
203. See id.
204. See Treaty of Waitangi Act 1975, Preamble (N.Z.).
205. See supra Section II.A.
206. See supra Section II.A.
622 Michigan State International Law Review [Vol. 27.3

settlers and colonization policies.207 The Menominee signed a series of

treaties with the U.S. Federal Government, which resulted in a loss of
land and a loss of control over their ancestral river, the Menominee
River.208 Unlike the Māori, however, the Menominee are just beginning
the legal fight to regain the ability to care for the Menominee River.209
The Menominee are currently experiencing some of the same issues
the Māori dealt with in the 1960s and 1970s. In 1958, the Tangariro
Power Scheme (TPS) was approved to be built on the Whanganui
River.210 TPS caused the River to lose 50% of its normal amount of flow
and diverted six of its headwaters into other lakes and rivers.211 The
Māori opposed the building of the TPS because of the damage that could
be caused and the resulting mixing of different tribal waters.212 The
Māori believed it to be “a serious spiritual offence” if waters from
different tribal jurisdictions mixed, which is exactly what happened after
the TPS was built.213 It took years after the TPS was installed and
running for Māori concerns about Te Awa Tupua to be considered.214 It
was not until the protests and political lobbying of the 1970s that the
Māori’s concerns about the Whanganui River were addressed.215 In the
2017 Settlement, the Crown relied on a previously negotiated agreement
made between the TPS electricity company and the Māori to determine

207. See supra Part III.

208. Menominee Indian Tribe of Wis. v. Thompson, 161 F.3d 449, 452–53.
209. See Menominee Nations Opposition to the Proposed Back Forty Mine, supra
note 119. Prior to the fight against the Back Forty Mine, the Menominee fought against
their termination status and for the right to fish and hunt as the Wolf River Treaty
allowed; thus, while they are not unaccustomed to fighting the U.S. government to
enforce their treaty rights, the fight against the Back Forty Mine is the first action focused
solely on the health and well-being of the Menominee River, Menominee Tribe of
Indians, 391 U.S. at 411.
210. David Young, River of Great Waiting, N.Z. GEO. (July – Sept. 1989),
https://www.nzgeo.com/stories/river-of-great-waiting/.
211. Id.
212. Id.
213. Id.
214. Id.
215. Treaty Timeline: Treaty events since 1950, supra note 47; Te Awa Tupua
(Whanganui River Claims Settlement) Act 2017, pt 3, subs 1, para 69, s 5(c) (N.Z.);
Ruruku Whakatupua – Te Mana Te Iwi O Whanganui 2014, s 1.11 (N.Z.). For a full
history of the Tongariro Power Scheme see Ruruku Whakatupua – Te Mana O Te Iwi O
Whanganui 2014, ss 2.81 – 2.98 (N.Z.).
2019] The Fight for Ancestral Rivers 623

the future of the TPS on the Whanganui River.216 The Menominee could
also try to utilize this strategy and arrange a private agreement between
Aquila and the Tribe. However, it is important to note that the agreement
between the Māori and the TPS operators did not occur until March
2011, at which point negotiations for a settlement bill had already
begun.217 Thus, an agreement between the Menominee and Aquila is
unlikely to occur if there is not pending legislation to cede control and
care of the Menominee River to the Menominee people.
Further, the Māori leveraged the cultural importance and visibility of
the Whanganui River in its protests in the 1960s and 1970s.218 The Māori
marched 622 miles with 5,000 people to deliver a petition with 60,000
signatures to the Parliament government.219 This was a significant show
of support for the Māori and their right to equitable and fair treatment
under the Treaty of Waitangi.220 This march and several other protests
took place on New Zealand’s national holiday celebrating the Treaty of
Waitangi, which was the document being protested.221 Further, the
national media in New Zealand covered the march, which garnered
nationwide attention.222 In contrast, the Menominee have also held a
march, the “Water Walk,” to bring attention to their concerns regarding
the Back Forty Mine, but those actions have gotten little to no media
attention.223 The Water Walk did not have 5,000 people marching in
protest, rather there were approximately 40 participants.224 The Māori
protests also coincided with a national holiday celebrating the very

216. See Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, pt 3,
subs 1, para 69, s 5(c) (N.Z.).
217. Ruruku Whakatupua – Te Mana Te Iwi O Whanganui 2014, s 1.12 (N.Z.).
218. See Whina Cooper leads land march to Parliament, supra note 51.
219. Id.
220. Id.
221. Orange, honouring the treaty, supra note 41.
222. Whina Cooper leads land march to Parliament, supra note 51.
223. Flyer, Menominee Nation, We Walk for the Sacred Water: Where our Wild
Rice Grows (Sept. 21, 2016), https://turtletalk.files.wordpress.com/2016/09/menominee-
river-water-walk-sept-21.pdf. To illustrate, even as I was researching this paper, I
struggled to find any mainstream media reports on the Menominee Water Walk and I was
actively looking for the information.
224. Dolly Potts, Menominee River Water Walk, SUSTAINABLE DEV. INST. (Sept.
30, 2016), http://sustainabledevelopmentinstitute.org/2016/09/menominee-river-water-
walk/.
624 Michigan State International Law Review [Vol. 27.3

document that was being protested, which helped to bring national

attention and media recognition to the Māori’s plight concerning the use
and misuse of the document.225 In a U.S. context, this would be similar to
the Menominee joining with other Tribes and protesting the U.S.
Declaration of Independence on July 4th, the U.S. Independence Day. It
is reasonable to presume that if there was a large protest about the
Declaration of Independence in the U.S. capital, there would be a lot of
media attention. Unfortunately for the Menominee, most people are not
familiar with the cultural significance of the Menominee River, nor are
they familiar with the many treaties between the U.S. and the
Menominee.226 The difference between when and how each Tribe
protested to protect their River highlights some of the reasons the Māori
were successful, while the Menominee have been less so.
Further, New Zealand has a large population of Māori, about 15% of
the total population, and most Indigenous people in New Zealand fall
into this classification.227 In contrast, the Menominee are not as
widespread in the U.S. and they are only one Tribe out of many in the
U.S.228 This automatically gives the Menominee less access to people and
resources than the Māori had. In the Māori’s protest, the Māori marched
for 622 miles to reach Wellington and submit their petition to the
Crown.229 In contrast, the Menominee were marching for awareness, not
to deliver a petition and they only walked for one day.230 These were two
different types of protests, so it is no surprise the outcome was not the
same. In addition to the protests, the Māori also had a political group, the
Mana Motuhake, that was lobbying and petitioning to amend the Treaty
of Waitangi.231 It was this combination of political and social pressure
that finally led to an acknowledgment of the problems within the Treaty

225. Orange, honouring the treaty, supra note 41.

226. See supra Part III.
227. Major ethnic groups in New Zealand, STATS NZ (Jan. 28, 2015, 4:45 PM),
https://www.stats.govt.nz/infographics/major-ethnic-groups-in-new-zealand.
228. Karen R. Humes et al., Overview of Race and Hispanic or Latino Origin:
2010, U.S. CENSUS BUREAU (Mar. 2011),
https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=CF.
229. Whina Cooper leads land march to Parliament, supra note 51.
230. Potts, supra at note 224.
231. Orange, honouring the treaty, supra note 41; Treaty Timeline: Treaty events
since 1950, supra note 47.
2019] The Fight for Ancestral Rivers 625

of Waitangi and how the Treaty was being applied to disadvantage the
Māori.232 Thus far, the Menominee have filed lawsuits, but they do not
have the same political and social influence that the Māori had in the
1970s.233 If the Menominee are not successful in court, perhaps
addressing the problem via political lobbying and large social
movements would be beneficial, much in the same way it was beneficial
for the Māori to utilize those methods.234
Despite the aforementioned similarities, the political structure of the
U.S. presents a possibly insurmountable challenge. In New Zealand, the
British had colonized the country and signed one main treaty with the
Māori in the 1800s to exert European authority over the country.235 In
contrast, the Menominee signed several different treaties with the U.S.
Federal Government and later legislation was passed to terminate their
status as a federal Indian tribe.236 The multiple treaties and potential for
Congress to change the Menominee’s tribal classification makes it more
difficult to protest and petition for a fair honoring of the treaties when
there is not just one document to protest against.237
Perhaps the most significant difference is that the colonizer still holds
the political power in the U.S., whereas when New Zealand and the
Māori entered into the Settlement in 2017, England was no longer in a
position of political power, and New Zealand was operating as a
sovereign.238 In the 2017 Settlement, the Crown acknowledged and
apologized to the Māori for taking away their rights to the Whanganui
River and their ability to care for Te Awa Tupua.239 In contrast, despite
repeated requests for an apology, the U.S. has done no more than insert a
non-legally binding statement into a 2009 defense appropriations bill.240

232. Treaty Timeline: Treaty events since 1950, supra note 47.
233. EARTHJUSTICE, supra note 174; see sources cited supra note 148.
234. See EARTHJUSTICE, supra note 174.
235. See Phillips, supra note 12.
236. See supra Section III.A.
237. See generally Section III.A.
238. Wilson, supra note 69.
239. Ruruku Whakatupua – Te Mana O Te Iwi O Whanganui 2014, ss 3.20 – 3.25
(N.Z.).
240. Rob Capriccioso, A sorry saga: Obama signs Native American apology
resolution; fails to draw attention to it, INDIAN L. RESOURCE CTR. (Jan. 13, 2010),
http://indianlaw.org/node/529.
626 Michigan State International Law Review [Vol. 27.3

The apology that former President Obama issued apologized on behalf of

the citizens of the U.S., not on behalf of the U.S. government.241 In
contrast, the Crown itself apologized to the Māori for the wrongs it
committed, not general wrongs committed by citizens.242 The difference
between the way the New Zealand government handled their apology
and the way the U.S. government handled their statement of apology
illustrates the difference between the two governments and how they
handle issues that arise with Indigenous groups. The Māori and the
Crown worked out a Settlement to come to a mutual agreement, whereas
U.S. federal agencies are refusing to even take responsibility for granting
permits to mine on the Menominee River.243

V. CONCLUSION

In conclusion, despite the similarities between the Māori and the

Menominee and their respective fights for their namesake Rivers, it is
unlikely that the Menominee will be able to utilize any of the strategies
used by the Māori before mining begins on the Back Forty Mine.244 If not
for the time constraints created by the building of the Back Forty Mine,
the Menominee could try to leverage more social and political support
for their fight against the Back Forty Mine; however, because of the time
limitations, their court case seems like the best path forward.245 Both the
Māori and the Menominee entered into treaties with a colonizing
government that were later used to deprive each Indigenous group of
their right to their ancestral River.246 The New Zealand government
acknowledged their wrongdoing and, after an arduous legal battle,
granted Te Awa Tupua legal personhood status as a way to protect its
unique importance to the Māori.247 The Menominee might not be able to

241. Id.
242. Ruruku Whakatupua – Te Mana O Te Iwi O Whanganui 2014, ss 3.20 – 3.25
(N.Z.).
243. See generally supra Section III.B; Compl. for Declaratory and Injunctive
Relief at ¶ 5, Menominee Indian Tribe of Wis. v. U.S. Environmental Protection Agency,
No. 1:18-cv-00108 (E.D. Wis. Jan. 22, 2018).
244. See supra Part IV.
245. See supra Part IV.
246. See supra Sections II.A, III.A.
247. See supra Section II.B.
2019] The Fight for Ancestral Rivers 627

get legal personhood status for the Menominee River, but perhaps they
can be granted guardianship rights248 as an acknowledgment of the past
harms committed under the Menominee-U.S. Treaty agreements. The
Māori did not achieve the Settlement in a vacuum, rather there were
decades of hard work raising social and political awareness about the
Whanganui River and its importance to the Māori people, particularly
those known as the Whanganui Tribes.249 Therefore, with more focus on
social movements and political lobbying, perhaps the Menominee will
eventually regain their ability to care for the Menominee River and
preserve it as part of their culture, history, and religion.

248. Guardianship rights are an entirely different argument and one that has
specifically not been addressed in this paper. The Māori, via the position of Te Pou
Tupua, will be acting as a guardian of Te Awa Tupua, but this position came secondary to
the recognition of the Māori’s right to preserve Te Awa Tupua and Te Awa Tupua’s legal
personhood status. Tūtohu Whakatupua 2012, ss 2.18 – 2.22 (N.Z.),
https://www.govt.nz/dmsdocument/3706.pdf. The legal parameters to give the
Menominee Tribe control over the Menominee River should be addressed prior
to a guardianship arrangement.
249. See supra Part II and Section II.B.