Toward a Decolonized Non-Anthropocentric Legal System: Why the Rights of Nature Movement Should Codify Indigenous Customary Laws and Look to the Indigenous Bagungu People for Best Practice

• Date: 01 January 2022

Toward a Decolonized Non-Anthropocentric Legal

System: Why the Rights of Nature Movement Should

Codify Indigenous Customary Laws and Look to the

Indigenous Bagungu People for Best Practice

CAITLIN SKURKY*

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352

I. The Origins of Rights of Nature: Recognizing Indigenous Roots. . . . . . . 354

II. Comparing Bifurcated Rights of Nature Laws That Coopt Indigenous

Rhetoric with Holistic Rights of Nature Laws That Enshrine Indigenous

Customary Laws into Modern Legal Systems . . . . . . . . . . . . . . . . . . . . 359

A. Ecuador’s Bifurcated Rights of Nature Constitutional Provisions:

Problems with Utilizing Indigenous Rhetoric and Concepts alongside

Postcolonial Environmentalist Rhetoric. . . . . . . . . . . . . . . . . . . . . 360

B. The Buliisa District’s Holistic Rights of Nature Ordinance: Benefits

of Codifying Indigenous Customary Laws and Creating Governance

Power for Indigenous Custodians . . . . . . . . . . . . . . . . . . . . . . . . . 365

III. Crafting Holistic Rights of Nature Laws: Using the Buliisa District’s

Ordinance as Best Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368

IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371

We should know that [the Great Spirit] is within all things; the trees, the

grasses, the rivers, the mountains, and the four-legged animals, and the

winged peoples.

—Black Elk of the Oglala Lakota

1

* Caitlin Skurky is a summa cum laude graduate of Lewis & Clark Law School and is the Founder

and Executive Director of Living Law LLC. This Article was written on the stolen and occupied land

which rests on the traditional village sites of the Multnomah, Wasco, Cowlitz, Kathlamet, Clackamas,

Bands of Chinook, Tualatin, Kalapuya, Molalla, and many other tribes who made their homes along the

Columbia River. © 2022, Caitlin Skurky.

1. JOSEPH EPES BROWN, THE SACRED PIPE, at xx (1953).

351

INTRODUCTION

Courts and legislatures around the globe are increasingly recognizing the legal

rights of Nature.

2

Daniel Quinn, What are the Rights of Nature, GLOBAL ALLIANCE FOR RIGHTS OF NATURE, https://

perma.cc/Y9Z6-47CX (last visited Apr. 17, 2021) (“Rights of Nature is the recognition and honoring

that Nature has rights. It is the recognition that our ecosystems—including trees, oceans, animals.”).

While the legal concept of Rights of Nature

3

may appear rela-

tively new, with legal academia

4

on the topic largely beginning in the 1970s,

5

Rights of Nature is in fact an ancient concept rooted in Indigenous customary

laws and ways of knowing found in Indigenous cultures around the world.

6

This

Article will explore the ancient origins of Rights of Nature, with a critical analy-

sis on the role postcolonialism has played in invalidating Indigenous customary

laws and ways of knowing, and in turn, erasing some of the most powerful—and

as this Article will later argue, effective—underpinnings of Rights of Nature. This

Article will then review two significant Rights of Nature laws, discussing the

legal and policy considerations underlying each law, and highlighting the differ-

ence between appropriation of Indigenous rhetoric and concepts (as seen in what

this Article calls Bifurcated Rights of Nature laws) versus the successful enshrin-

ing of Indigenous customary laws into modern legal systems (as seen in what this

Article calls Holistic Rights of Nature laws). Finally, this Article will outline

what it believes to be best practice in crafting the most effective and protective

type of Holistic Rights of Nature laws: highly localized laws, developed in col-

laboration with Indigenous communities, that not only codify Indigenous custom-

ary laws but also recognize the rights of Indigenous custodians by providing

governance power to Indigenous populations to oversee implementation and

enforcement.

The entirety of this Article is based on the knowledge and wisdom of different

Indigenous cultures from around the world, and hopefully serves only as a deliv-

ery device to further communicate Indigenous ideas that are too often overlooked

or misappropriated by legal and academic communities in the dominant culture.

This Article does not support an essentialist account of Indigenous customary

laws or ways of knowing; Indigenous cultures around the world, and within the

same geographical regions, possess unique and diverse cultural proclivities, per-

ceptions, values, understandings, and practices. Any reference to Indigenous cus-

tomary laws and ways of knowing should be read to only include those specific

2.

3. Id.

4. Legal academia in this context refers to legal academia created and consumed by the dominant

culture. Indigenous ways of knowing include both legal and academic elements, though postcolonial

rhetoric, especially in the academy, often overlooks or erases the legal and academic elements of

Indigenous beliefs.

5. See, e.g., Christopher Stone, Should Trees Have Standing?—Towards Legal Rights for Natural

Objects, 45 S. CAL. L. REV 450–501 (1972).

6. See infra Part II.

352 THE GEORGETOWN ENVTL. LAW REVIEW [Vol. 34:351