A Tribal Lawyer Who Champions the Rights of Nature

John Reed [00:00:00] Think about what the law does, or at least what it's supposed to do. Statutes, rules, executive orders, appellate decisions. Fundamentally, they're all meant to protect and preserve people's rights and interests. Yes, you can point to laws addressing corporations, real estate, the financial system, etc. But the ultimate beneficiaries are the shareholders, property owners, investors, and other humans behind them.

[00:00:33] But what about a plant? Does a plant have rights? Should the law, created by humans, protect that species from humans who, in the name of progress, might destroy it? And what if a group of people places deep cultural, historical, and spiritual value on that plant? There's a lot to unpack here. Man versus man, man versus nature, nature versus man.

[00:00:57] Thankfully, we have a sticky lawyer to educate us. The plant I've described is a wild rice called manoomin, a species central to the indigenous Anishinaabe people, also known as the Ojibwe or Chippewa. Frank Bibeau is one of them. He grew up in northern Minnesota, fishing and harvesting wild rice from the lakes and rivers with his family.

[00:01:17] Later, after a career in government and journalism, he went to law school and became a tribal rights attorney, employing an innovative legal instrument called rights of nature. Frank has become manoomin’s champion, waging a battle against the state of Minnesota and a corporation pushing a 1616-mile-long oil pipeline.

[00:01:36] But that's just part of Frank's story, and I'm honored to have him here to tell us more. Frank, welcome to the podcast.

Frank Bibeau [00:01:43] Thank you. Good morning.

John Reed [00:01:44] As I said, there is a lot to unpack, so let's start from the beginning, literally. Describe for me the relationship between manoomin and the Anishinaabe people.

Frank Bibeau [00:01:56] Manoomin is what we call, what is now understood to be called, wild rice by the mainstream people. The term manoomin means the good berry. And I think it really means not just a good berry, but a primary food out of all the plants that we rely upon. Thousands of years ago is what I'm guessing, but part of our migration and creation stories, the Chippewa, the Ojibwe, and Anishinaabe, we're all three, like you said.

[00:02:24] We migrated through the Great Lakes, and we were looking to go to where a prophecy told of where the food grows on the water. And ultimately, what was probably hundreds of years of journey for all I know, the people that were doing this are, you know, it's so weird to think about generations doing it.

[00:02:44] They got to Lake Superior area, Lake Michigan area, and they got to Lake Superior. And once you get to Lake Superior, Lake Superior is the gateway to northern Minnesota where I live, and that's probably the greatest wild rice area in the world. Canada has a lot of wild rice, but it's spread out a little bit more, and it's in a lot of remote lakes where people don't live, and they harvest by airboat.

[00:03:10] For us, when we were brought to this place where the food grows on the water, that food has sustained us forever, through the long years. Wild rice can be dried, dehydrated, however you'd like to call it, and it can be stored for many, many years, brought out, boiled, and turned right into a food product that you could eat and rely upon.

[00:03:35] That's what makes it most significant, I think, because it's a 365-day food. Maple syrup and sugar, which is also in the same area, would be like that, and you could put it into sugar cakes and then reconstitute it into syrup. And so that's another commodity that you could trade and store. And those two together, maple syrup on wild rice, is a real power meal.

[00:03:59] And that's what I think are probably the two most important plants. And then comes fish. Wild rice is probably, as I said before, the most central important part of our culture because it also has us doing activities 12 months out of the year to prepare for wild rice season. It might be mending your canoe or building a new canoe.

[00:04:20] It might be scouting for other wild rice, traveling through areas that you haven't been in. And so wild rice compels you to engage in activities all the time, see what's happening in your environment. And so, what we call our first treaty or covenant with nature, as human beings, and scientists talk about this as well, humans are one of the last species to appear on the planet Earth.

[00:04:45] From our perspective, when we came, we were spirits, we were whisps of smoke, essentially, and we petitioned the Creator to talk to creation to see if it was okay if we came and relied upon them for our sustenance so that we could have a corporal physical being and have a life here. And the Creator talked to creation, essentially everybody, and they said, yes. Obviously we're here and we have a covenant, they protect and nourish us and we're supposed to protect them as well.

[00:05:19] And so that is really our first treaty as a person, as an individual with the Creator. That's the pact that you make before you engage in all the other activities. And so, it's a primary covenant with what we consider our relations. And so, it would be hard for us to abandon our relations or ignore their plight.

[00:05:41] And so we've been, I guess, privileged to know that we're part of creation. And that we belong to creation, not that creation belongs to us. Sure.

John Reed [00:05:52] Yeah. And I want to stress here—hopefully I did you and it justice in my opening. This isn't just a question of sustenance. And nor is this kind of historical lore or mythology.

[00:06:05] You grew up harvesting and working with the wild rice. It's something that happens today. It's not a long-ago abandoned process. Is that correct?

Frank Bibeau [00:06:17] Yes, I've been engaged in wild rice harvesting for more than 40 years, and you learn it from your family. And I have old pictures where my father was like in 1955, black and white photo, he's out in a canoe harvesting rice. I've got pictures of my grandfather processing his rice, you know, when we weren't living in Minnesota, my grandfather would send us wild rice to make sure we always had it.

[00:06:41] It was always part of our lifestyle. So, in that sense, it's probably the most family empowering activity and food. It does everything it can to bring us together as a family and enjoy and share. And all creation asks is that we don't forget them.

John Reed [00:07:00] So. Then, along comes Enbridge, and Marathon, and the Line 3 Sandpiper Pipeline. What threat did this development, this pipeline, pose to manoomin?

Frank Bibeau [00:07:13] Oh, probably many threats. The Ball Club, where I spent most all my life, is on Highway 2 in Northern Minnesota on Leech Lake Reservation.

[00:07:25] And a half a mile from my house, there are now seven pipelines that are Enbridge that run, you know, east to west from up in Canada all the way through to Superior and then beyond, Line 5 and other places. So, in the place where I live, and, you know, when you're young, you don't always think about this. So, in 1991 I believe it was, the largest inland oil spill in North America occurred in Grand Rapids, Minnesota.

[00:07:53] It was pre internet for the most part, and so, for a long time, people thought the Kalamazoo spill in 2010 was the largest inland oil spill in North America because the 1991 wasn't on the internet, and we had to go through the work of getting it on the internet to make sure it was being looked at correctly.

[00:08:12] So, in that time, Grand Rapids is about 20 miles from Ball Club. That was 1991. In 2003, I think it was, I’ve got to think about these dates right, there was a massive fire rupture in Cohasset, Minnesota, which is between Grand Rapids and Ball Club, and they burned that off to try to protect it from going into the Mississippi River.

[00:08:33] In 2007, to the west in Crookston, at the facility where the pipes go north and south, or east and west, and it's kind of a, a junction place, they had an explosion there where I think three people died in that explosion. When you fast forward up to 2016, we just had the Husky refinery catch fire there on Lake Superior.

[00:08:54] And, you know, you have all of this dirtiest fuel, raw material, going up in flames right on the edge of Lake Superior. This is just in the state where I live. This is just in this segment where the tribal people live. And this is, you know, this is modern times. And unfortunately, they keep saying, "oh, it was an accident," which I hope it was, because I think they want to make money.

[00:09:19] It's the kind of accident that should be forgivable and let us try again and let us try again and let us try again.

John Reed [00:09:24] Forgiven and not prevented, right?

Frank Bibeau [00:09:26] Right.

John Reed [00:09:27] So the obvious threat ecologically, what was the involvement of the Minnesota Public Service Commission in this? The manoomin needs water. And so, in addition to the environmental threat, the existential threat, if there's a pollutant or a chemical, but there's also, wasn't there a water issue involved here too?

Frank Bibeau [00:09:45] Yes, there was. In part what we're talking about was when manoomin as a plant sued the state of Minnesota for five billion gallons of water from an aquifer that was retroactively permitted without it even letting the tribal members know or the, or the tribal leaders. And it was because they had ruptured the aquifer like in February and they didn't even disclose it til like May or June because they were so afraid that project would be shut down, and rightfully so if you don't come forward and disclose those kinds of things. And instead, Minnesota, who was a partner through the Public Utilities Commissioner, that kind of permitting in the Minnesota Pollution Control Agency and the DNR, the DNR is the one who issued them that retroactive permit for the water, because otherwise it's against the law to do that.

[00:10:36] Yeah. Yep. And ultimately, they were charged, and it's kind of a, a little thing that's happening right now, because they pled guilty to the charge, which was like a gross misdemeanor at best, maybe even a misdemeanor, and it was done in October last year. And part of the agreement was that there was a continue to dismiss, so they wouldn't even end up with a conviction on their corporate record, much less someone with the potential of serving time.

[00:11:04] But the funny part is, that was in Clearbrook, and it's not funny, it's just, you know, it's a sad irony, I guess. That, that was only the second aquifer breach and in the agreement for the continue to dismiss so you don't have a conviction, you say, I promise I won't do it again. Yeah. Well, we've had number three and four now.

[00:11:23] Yeah. And so, all of a sudden you've got all these water protectors who have gone to jail for trying to prevent what we said was going to happen and that the state permitted anyway. And the state and Enbridge get together and they try to minimize and hide and, you know, those kinds of things, their activities, and their involvement.

[00:11:42] And at the same time, our rights, especially as tribal members, they were criminalized. Yeah. They called it trespass in a public place, but they had signs up. They called it assembly. They had it engaging in unlawful assembly and nuisance. And what that meant was, is that there were water protectors who were probably had a drum and were singing and praying.

John Reed [00:12:05] I want to take some time and really break this matter down, this lawsuit down, because there's so many. As lawyers, and for you, I know it's incredibly difficult, but to step away from the personal stake and the spiritual, cultural, all the things we've talked about, but to look at it from a legal, perspective, as you said, it was manoomin suing, manoomin the plaintiff, the party bringing the action for its own right.

[00:12:35] You call it right of nature or we call it a right of nature lawsuit. What's the history of that? Yours was not the first case, but it was the first of its kind. So maybe you could kind of elucidate for us the right of nature movement or theory and then how you employed it in this particular case.

Frank Bibeau [00:12:52] Sure. Well, I work a lot with Tom Lindsay and Mari Magruder with the Center for Democratic Environmental Rights and Tom's been engaged in some of that rights of nature action going all the way back to Pennsylvania and places and so I, I see them as very brave already trying to do that against state and federal law because everything's set up to permit, not to prevent.

[00:13:14] And when we got together, and this is probably back in 2017, we started talking about rights of nature, and I was looking at their toolbox, essentially what they were trying to tell us, you know, could be helpful, environmentally. And I said, well, you know, I would use these tools differently. It's like when your eyeglasses are loose, and someone grabs a knife or a scissor off the table and tries to tighten that screw.

[00:13:42] And so what I did was I had been looking for a way to make it so that environmental action would start in tribal court under tribal law, and then create a record there that you would ultimately have to go to federal court one way or another, even for enforcement. And I didn't know, like any good law, I didn't know who I was going to be suing, but I knew that it had to be in place.

[00:14:09] The Rights Amendment basically says that it has a right to exist, to live, to regenerate, to have a clean ecosystem, and to clean up the ecosystem. All of the same things that we as humans would want but can't have.

John Reed [00:14:22] But I have to stop you because again, if I go back to kind of my preamble and all this, we think of the law protecting the rights of the individual or unfortunately, more modernly, the rights of the entity, the corporation and all the things you just listed, the right to exist, the right to grow, to flourish, to, as you say, enhance the environment.

[00:14:41] Where does that come from? Yes, it seems in just kind of universal truth that's there. But of course, any judge is going to say, “Where is it in ink? Show me the statute. Show me the constitution. Show me something.” So, what was your starting point to establish that right?

Frank Bibeau [00:14:56] Sure. And so, there's a couple pieces to that.

[00:14:59] One, like I said, I, my goal was to try to make tribal court be the place to have an action start. Okay. And that was hard enough to figure out what you can and can't do and make it work. So, the next part with the manoomin, the thing that made manoomin really, in my brain, be the logical thing to go after, because typically all tribal members should have somehow, somewhere, the right to hunt, fish, and gather.

[00:15:26] In the 1837 treaty, our treaty specifically says that we retain the right to hunt, fish, and gather wild rice in the lakes, rivers, and lands that are being ceded. So, we're not even talking about leaving the place, we're talking about using all those resources, even if they're cutting the trees down. Okay.

[00:15:44] And so, because wild rice was in that treaty, specifically, they say under the U.S. Constitution, that, you know, trees are the supreme law of the land, and wild rice, therefore, was the pinnacle of all the plants and animals that we have at our disposal here. And wild rice also has its own mystique. And so, people know about it, even the cooks and, and the, the, the different culinary people. You get all kinds of traffic who are interested in this from one perspective or another, just like we're talking about it from a legal perspective.

[00:16:19] So I knew that wild rice would have more interest in it initially, and also as, as a law of the land treaty item, that that was the place to start. Ultimately, and we can talk about this later, but ultimately, we're working on rights of fish now because it's a lot more prevalent wherever water is, there's usually fish. But fish aren't as romantic.

[00:16:40] And so I knew that wild rice would be a lot more interesting to people, from that perspective, our cultural, spiritual part that we've talked about at the beginning. I didn't have to suggest or explain to another 20, 000 Chippewa what I was doing. Yeah. They all understood. So, there's been a couple of law reviews even generated since.

[00:17:03] There's people who see this as a tool that will start the ball rolling in a different place. And so, you get a different result because you're not doing the same thing that you did before. Sure. And so, in parallel with this, you know, suing the state because they gave the permit is what it was. You have to have like catastrophic issues.

[00:17:22] You can't just be suing non-Indians off reservation for everything. And so, it has to be really important and significant, and it has to be basically catastrophic. And disrupting that aquifer during a drought year was catastrophic for wild rice. My friend over with the Sauk-Suiattle in Northwest Washington, he saw what I was doing, and he also sued in the same time that we were working through our case without even talking to me.

[00:17:49] And he sued the City of Seattle Power Light. Because they have three dams on the Skagit River that don't really have adequate fish passage for the salmon. And so, their treaty was based on the idea that if they went to live there, then they would always be able to have fish and live there. And so, our powers, tribal members, our jurisdiction pretty much hits near the top in the environment with hunt, fish, and gather.

[00:18:15] Yeah. And those treaties. And so, they have a right to fish. They have a right to the salmon. And there was a FERC permit that was up, the Federal Energy Regulatory Commission, and because that's federal and the treaties are made with the federal government, that becomes an issue, and so within a period of just two or three months, because that case was filed in tribal court, the city of Seattle didn't want to be in tribal court.

[00:18:38] They went to federal court to try to get out of it as well. And they found out they were stuck. Well, if you're stuck and you need a federal permit, what are you going to do? Right. They agreed to put in more fish passage. That is a much faster tool than the state or the federal courts have. It takes months, if not years, with a bunch of nonsense litigation.

[00:19:00] And this was more of your public image being exposed, showing that you didn't actually have the shields and defenses that you thought you had from Indian country and that we have rights to. And I can tell you a lot of Indian country is very interested in what's going on, because normally we are stuck with what they stick us with a process, like the Public Utilities Commission, like the Minnesota Pollution Control.

[00:19:26] We can tell them what's wrong and what's going to happen, and they don't care because we don't give campaign donations to them. Right.

John Reed [00:19:33] I'm intrigued by all of the different, and forgive me, tentacles of the law that are involved here. As you've mentioned, there are treaties, there are federal acts, there's simple principles of legal construction.

[00:19:49] If it's not mentioned in the statute, then it doesn't exist, and I think you've got some stories around that, too, as to how the legal complexities and nuances work.

Frank Bibeau [00:19:58] Right. And that's why we made the Rights of Manoomin a written code, because what you learn as a bureaucrat, as an attorney, is that the judge has to have a piece of paper that he can read and understand to stick in the file to say, this is why I did this.

[00:20:14] And you can talk till you're blue in the face, and a lot of times you're not going to get there. The case with the Sauk-Suiattle, it was an oral tradition complaint, so the city of Seattle didn't even have half the paperwork to go on for what the litigation was, and the federal court said, “No, the Indians still get to have you in court and you’ve got to respond.”

[00:20:33] That must have been really spooky for those guys. We tried to make it more obvious because it wasn't just protecting manoomin, but it was protecting the people, the water protectors. And so, in that code, it also provides that the tribal members have a right to protect the manoomin also. Interesting. And so, every tribal member who was a water protector was acting under the color of law, albeit tribal law.

[00:20:59] And so, we had virtually every single tribal case of water protectors, county by county, transferred to the tribal courts at Red Lake and White Earth. And that hadn't happened before. And that... is significant. The state of Minnesota, I think, is starting to understand that they're not going to win anymore in these environmental arguments and disputes.

[00:21:21] The other agencies, I shouldn't call them agencies, the other entities, Sierra Club, those kinds of people, they can see that we are exercising power that hasn't been done in a way like it has before. And so, one of the things that we did also after the construction was done, we did what they call a thermal imaging flyover, and we did that like in November so that you can distinguish the water temperature from the ground temperature to see where the frack outs and aquifer breaches are.

[00:21:50] And so in Minnesota there was like three or four aquifer breaches that we could identify, maybe more, and maybe 40 frack out locations. And the reason we were able to do that is because Line 3 was protected as, as a homeland security issue. And so, the public can't get the coordinates to fly over, they can't get permission to fly over, but a government can.

[00:22:14] So all you have to do is have the word “tribal” and then government and fill in the blanks.

John Reed [00:22:18] Makes it official.

Frank Bibeau [00:22:20] Yeah. You know, and that's what you find out about law as a lawyer is, well, you got to have a few pieces of paper in a few places when people go to look for them. They got to look like they match up in a lineup.

[00:22:30] And so what I've done, and this is what my professor told me in law school, is you need to learn to use their laws against them.

John Reed [00:22:37] That's a really interesting segue. I have to imagine that when you initiated the initial action, you couldn't help but think this is going to go somewhere on appeal. You know, as you said, you started in tribal court, and you had federal court in mind at some point.

[00:22:52] In your pleadings. And in the initial action, how broad were you? Were you bringing in First Amendment? Were you bringing in, you know, Indian treaty? Were you bringing in Lacey Act? Were you bringing in all these other elements that have to do with the people, as well as the species as well as property and things like that?

[00:23:17] How broad was your initial argument?

Frank Bibeau [00:23:20] Yeah, it was actually very broad in a number of different ways, and even when it comes to plaintiffs. So manoomin was named first, the tribal council was named next. And then there was probably, I'll say, at least a dozen water protectors that were named after that. I'll say out of a dozen water protectors, six or seven or eight might have been Ojibwe that had treaty rights to the exact territory that we were defending.

[00:23:46] There was another three or four tribal members who might have been from Red Lake or, or from Menominee or some other tribes that came in to help us. I included them as well because I believe that they have an environmental right to hunt, fish, and gather in our territory that we can extend. And then also I had two non-Indians identified as well who were water protectors who were submitting to the jurisdiction of tribal court in that dispute.

[00:24:11] And so I was trying to figure out how many variables could end up in an appellate situation. And try to distinguish out, okay, you can say these people don't have a right, but how are you going to say that about these people? And ultimately, you know, when you start going into state court from the criminal side of the charges to water protectors, because everybody who was charged in state court at that time was identified in the tribal court pleading as well, intentionally.

[00:24:38] And so that's when I was using Rights of Manoomin as a shield for them to defend our property because under the constitution, we don't think about it this way, but our rights to hunt, fish, and gather are property rights. And the constitution says property must have due process to be, have it taken away.

[00:24:57] Well, that's our property right using all their laws with due process. And if we're allowed to have some laws to govern ourselves and our territories, I think environmental, like I said, I think it's really kind of near the top of our threshold. We were exercising power in a way that was completely unexpected.

[00:25:16] Most citizens are subject to the 11th amendment where you can't sue other states and we're not citizens at that time. And states have no bearing on us. And so, it completely caught the DNR off guard. And also, the same with Sauk-Suiattle because they, they were doing the same thing, they went right to federal court.

[00:25:36] And, you know, one of the most pleasurable things as a tribal member and as a person who grew up in the Washington, D.C., area, when I was really young and my dad was working out there, you know, you got a lot of different, we'll just call it civil war wrongs that haven't been corrected yet.

[00:25:53] And so I was in federal court. And the judge in Minnesota, Wilhelmina Wright, this black woman judge, was up on the bench. And here's this DNR guy, think, "Please. Tell them, tell those Indians that they can't bring us to their tribal court under their tribal law," you know. And I can just see the wheels turning on her head like, yeah, buddy, let me ask you a question.

[00:26:16] And she says, "Can you cite or point to any law that gives me the authority to tell them they can't do that?" And that's when I knew, that's when I knew it was over.

John Reed [00:26:28] What's the epilogue? What is the status now? You've talked about further breaches and transgressions and things like that. How settled is the relationship?

[00:26:39] Has there been further appeals? Is it finished and it's just a question of monitoring and policing now? What's the situation?

Frank Bibeau [00:26:46] Well, for Enbridge, they're still in post construction because they have things to fix that they haven't fixed yet. And so technically, they haven't finished, and they can still be held accountable for other things.

[00:26:58] I think in a, whatever you want to call it, maybe not conspiratorial sense, but certainly the DNR has been involved with trying to cover up one way or another these kinds of activities. Recently, the Minnesota Supreme Court had a decision about the PolyMet permit for the mining. Fond du Lac, one of the reservations, has a very strong legal and environmental department.

[00:27:20] They have treatment as a state code within the boundaries of the reservation. So, their law substitutes for state law within the boundaries because they've got a peer, you know, P E E R law under federal law. And so, in that decision, it was disclosed that the PCA and the EPA weren't disclosing everything to Fond du Lac.

[00:27:41] And at the end, there's a concurrence from Justice McKegg. And Anne McKegg used to be a prosecutor in Hennepin County, but now she's on the bench. She grew up on Leech Lake Reservation also. And she's a descendant tribal member. And she goes into detail about the arbitrary, capricious activities by the agencies to prevent us who have rights and have done everything they say we're supposed to do to exercise those rights to still be circumvented. And it's disgusting. You know, and so you can't rely on the state or the federal government to actually be your ally or to uphold the laws. The only place you're going to get your law upheld is in tribal court.

John Reed [00:28:20] Well, let's talk about your path to the law. Let's switch gears a little bit. When you were a kid, first in D.C. and later, what did you want to be when you grew up?

Frank Bibeau [00:28:30] Oh, I think I probably just wanted to live in the woods and hunt, fish, and gather, you know, as a kid.

John Reed [00:28:35] It's hard to make a living like that I'm sure. So, what happened?

Frank Bibeau [00:28:39] Oh yeah, right. Well, and fortunately as a kid, I did come back to Minnesota a lot. So I, I saw a lot of good hunting and fishing and things. In D. C. back in the late 60s and the 70s, you had Martin Luther King, you had John F. Kennedy, Robert Kennedy, you had the Vietnam War.

[00:28:56] And then you started having the AIM taking over places as well. Everything was breaking open. And so, the American Indian Movement was over Wounded Knee. We'd be watching that on the news at night. We'd see them in D.C. at the Department of Interior. We'd see them over, at, I can't think of the island there in San Francisco.

John Reed [00:29:15] Alcatraz?

Frank Bibeau [00:29:16] Alcatraz, right. You know, and you could see these actions going on and I would be talking to my dad about it. And he would try to explain to me what was going on, but it wasn't readily apparent and easy for him to explain because the way we've kind of been, you know, assimilated, and tried to be terminated and all these different activities, we don't always know what those actions are.

[00:29:39] And so he couldn't explain to me how, if everything was written on paper and in treaties, that there still could be some arguing about what our rights were. That was the part that always kind of baffled me. But I also found D.C. repugnant in many ways, and Minnesota much more desirable for hunt, fish, and gather, whatever, and so...

[00:29:58] You know, I moved to Minnesota and stayed here a long, long time ago because my dad always said there's a place for you on the reservation, there's a spot of land. You can go and live there forever, and you can hunt, fish, and gather. You don't have to, you know, be doing these other things. And even though I was a thousand miles from Washington, D.C., I still ended up becoming a lawyer and Washington, D.C., still came and found me.

[00:30:20] And I'm engaged with all of those same activities that I didn't want to even see and talk about and listen to when I was young and out there. But I think it also provoked me to find out, okay, if this is really how the laws are, then let me see where, where we can work through this. And that's where Rights of Manoomin and Rights of Nature got coupled up with my desire to figure out how to bring an action in tribal court that the plaintiff would be stuck going with our process.

John Reed [00:30:50] Sure. Let's go back because your arrival at the practice of law was later. It wasn't something you did right away. College to law school. What was your path on the way to the bar admission as it were?

Frank Bibeau [00:31:02] Yeah, right, right. Well, when I moved to the reservation, my wife and I, I would say we were still close to being young hippies at that time, maybe, you know, might be looked at it like that.

[00:31:13] I was a veteran. I was hitchhiking to Bemidji State University every day to go to school. It was like 50 miles one way, but there's only one road, Highway 2. And so, I got my bachelor's in poli sci, emphasis in international studies, and I was trying to figure out how to help, you know, us, the reservation, the tribal members, and so forth.

[00:31:32] And then there isn't a lot of employment opportunity and you've got student loans and so I ended up actually going to work for the state. And one of the first places I went to work for was a water quality unit with MnDOT. And I ended up with like 15 years with the state. But you know, I ended up down in the cities and different places.

[00:31:50] Then I got back to Bemidji, and I had a chance to go to work with job service unemployment office. That is the only agency I've seen that responds to the economics of the world. When things are good, they downstaff, and you don't have hardly an agency at all. And it was like that at the time, and they had a layoff.

[00:32:07] And so I got bumped in a layoff. I had to go back to St. Paul. And the people who I was working with, in particular my friend Sue Nelson, she saw that I should be going to law school. And it's hard for yourself sometimes to see what you're involved in. I was working with the Native American press, the paper, and so forth.

[00:32:24] I was doing other kinds of adjudication work. And they wanted me to stay at the job there as a delinquent tax collector. And so they said, "Frank, if you stay in this chair for the next four years, you can go to work 32 hours a week, we'll pay you for 40, and we'll make sure that you have all the time you need to go through law school and everything else," because they had a hard time finding somebody to do what I was able to also do with my brain.

[00:32:48] So in a sense, I spent 15 years learning how the state works, who's my primary adversary, working in two agencies. And then I go to law school and I learn more about taxation, and then I start trying to figure out how the law works. And that was frustrating in the sense that Indian law, I don't want to say it's the opposite of a lot of law, but it's not the same.

[00:33:11] And so my law school professors couldn't answer my questions. And even the Indian law professors that I had, they couldn't see the future of how the law could be the way I did. They were living in the old paradigm, and that's what keeps us in the old paradigm, is that all the old big Indian law attorneys who make money and are respected, they're saying, “oh, you can't do that.”

[00:33:34] Yeah. Every attorney I talked to about Rights of Manoomin when we're working online through the Public Utilities Commission and the PCA and everything, they all looked at me cross-eyed whenever I'd bring up Rights of Manoomin and doing it in tribal court. They're like, “Frank, you know, you went to law school too, quit talking that stuff because you know there isn't anything like that.”

[00:33:52] Yeah. And, you know, I get that cause when you asked about filing initially, you know, I also had to like be brave enough or stupid enough to take the boat and disconnect it from the dock and kick it out and see where it goes. And so, Joe Plummer and I, we were the ones who worked on it, and we didn't know exactly where it was going to go because it hadn't been done before, but we couldn't see where we were missing any pieces.

John Reed [00:34:17] There's so many things you just mentioned that are fascinating to me. One, I find it ironic. Sadly, you're innovating a new legal theory or movement to address something that goes back to creation, right? Just to have to develop something new to go back to the origin of your people is crazy to me.

[00:34:40] And the other thing, and you know, for the benefit of those listening, you and I have talked before and in our prior conversation, you said, well, I went and studied international law and I asked stupidly and naively, "what other nation," thinking outside the U.S. And in fact, it is outside the U.S., it's tribal law. You went to college to understand the juxtaposition between the U.S. federal system, tribal laws, treaties, and things like that, and that was such an eye-opener to me. I was embarrassed that it was an eye-opener, but I appreciate you giving that gift to me.

[00:35:11] A lot of people think about law school, and nobody majors in anything at law school. Maybe if you're a patent attorney, you go with the idea that you're taking your engineering background or something. Did you fashion your legal studies around a future career as a tribal lawyer, as someone who would be involved in tribal rights?

[00:35:32] And, and I guess I'll just ask that question. Did you kind of create a bespoke legal education for yourself after those required courses?

Frank Bibeau [00:35:41] Yes, in the sense that in Indian country, anything can happen to you from the state and federal system. So, the first thing that happens to most of us, one way or another, is we get, you know, driving without a driver's license or something, you know, whatever those little things are.

[00:35:56] So I studied criminal law, took advanced criminal law, advanced criminal law procedure because I knew that's one of the weapons that's used against us and our identities on reservation. So, I also looked at civil procedure because, you know, you got to understand how that works and they make you do that.

[00:36:14] But that's also the part that always stuck in my mind about disconnecting it and where things can come in. Yeah. And so, I also took poverty law, and that was only offered every two years in a night class. I took Indian law, it was offered every two years in a night class. You know, I didn't take mainstream classes.

[00:36:32] I took agency law or admin law because there's a lot of agencies that we have to deal with, you know, and so I tried to figure out what are the concepts that I need to understand are being used around us, and with us and to us. So that's kind of the preparation is more like an introductory to a lot of those kinds of classes.

[00:36:55] When I was in Indian law class, my professors argued with me to tell me that they thought I was wrong. And I get it. I mean, I'm trying to think outside the box, and that doesn't fit with a lot of people. When I was going through one of those criminal law classes, I think it was maybe my advanced criminal law class, I came up with this concept about civil forfeiture of automobiles.

[00:37:18] And if Congress gave criminal authority to states, but limited civil regulatory authority, then the question in my mind became, where did you get the civil authority to take our tribal, you know, rights away, take our vehicles away or whatever? And so, I wrote this paper in law school about civil forfeiture and that you couldn't do it because the authority had been granted by Congress.

[00:37:42] And my professor, she was an adjunct. She said, you know, my husband does this all the time and he says, you're wrong. And I'm thinking, wow, you know, so I got a C for it, you know. I come out and I'm working with Joe at Leech Lake as a tribal attorney, and the first car I go after, I get every car I went after I got.

[00:38:02] But most of those judges were smart enough, and I use that term loosely, to not go against what I was doing when they could see they didn't have the authority. And ultimately, there was one, I'll just use the term lightly, not to be impolite, I'll just say redneck judge. Because I would attach a half dozen decisions from all the other judges, so you didn't have to think about it at all.

[00:38:25] Yeah. But he didn't like the idea that I could prevent them from taking cars and other things from tribal members on reservation. And so, he went against it. He gave me the right to appeal. So, I have an appeal court decision that cuts in my favor. Right. They don't like to let Frank appeal on anything.

[00:38:44] Right. Ha ha ha. Right. I'm a completely different animal. And so, you know, I live on the reservation. I live on Indian land. The land isn't taxable. It's Indian land. You know, you can, at the time I moved there, you could pretty much build what you wanted. And so, in a sense, I have a place that can't be taken away from me, a good solid foundation to work from.

[00:39:07] And most of my relatives, you know, there's a lot of poverty. And so, I worked with legal services. I've worked with public defense. And so, as a tribal member, in my circumstances, I have to figure out how do you solve the biggest and most, most of the problems for the most amount of people with the least amount of money and resources.

[00:39:26] Sure. You outsmart them because you sure don't get to outspend them.

John Reed [00:39:30] Yeah. You are a tribal attorney with the Leech Lake Reservation. Like any government, you can have lawyers doing different things, some specializing in certain things, some kind of, for lack of a better term, general practice. You invested in your education in criminal law, in administrative law, in all sorts of different things.

[00:39:52] What do you do in your role as a tribal attorney, and I guess as important, what do you not do that other people do, but all for the sake of or the good of the tribal community?

Frank Bibeau [00:40:03] Well... I'm an anomaly, and so when you spoke of me being a Leech Lake Tribal Attorney, I've been a Leech Lake Tribal Attorney three times.

[00:40:11] I've been fired two and a half times. The first time they realized firing me just, and other people at the same time, just enabled me to help people go against the tribe and get unemployment benefits, and it cost them a lot of money and embarrassment.

John Reed [00:40:25] The devil you know, and the devil you don't, right?

Frank Bibeau [00:40:28] Right, right. And so eventually a few years later, we're into this treaty stuff going on, and it's like, well, okay, let's ask Frank to come back. Right, they made me the legal department director, and then when that stuff was over, you know. My problem is I started asking questions and people don't like those questions because the answers that they got to get.

[00:40:45] So ultimately the third time that I was asked to come back and help, when it came time for them to let me go, they were kind of polite about it and, and I knew it was coming. So, they just let me go and I still drew unemployment, you know, so it's just kind of funny how all that stuff works out. I've been a tribal attorney practicing for the people on custody and family matters in a lot of tribal courts. But what's different also about me is I have also learned how to sue tribal government and most of the time the rules of, you know, of, well, however you want to call it, the guidelines or whatever. The only way you can sue a tribe is if they provide a waiver of sovereign immunity in writing.

[00:41:26] Well, that's true if you're seeking money damages, but if you're just seeking injunction or declaratory relief, that doesn't mean anything. And so, if you're not trying to get money, which is what every attorney wants, and you're just trying to get shit straightened out and say, expose these people and say they're wrong, do an injunction man overnight.

[00:41:48] And Joe and I, we must have filed probably 10 injunctions one year as tribal attorneys from the inside of government. Well, then we started filing from the outside. And so, you start finding out that what people say you can't do... they just don't know. And so, you know, we sued the state of Minnesota because they shut down the off-reservation Indian education scholarship office in Bemidji that was in between White Earth, Red Lake, and Leech Lake, the three largest Indian reservations in Minnesota, you know, but we had to do it in state court.

[00:42:19] And so ultimately, we didn't prevail. But just filing suit makes people look and it changes how the process can change in its results.

John Reed [00:42:29] This has been fascinating, Frank, because you shed light on so many things for me and hopefully for our listeners as well. But I think you've also distinguished so many things that people misunderstand about the law, that most people think lawsuits are about money as opposed to equitable or injunctive relief or getting something instead of some money, you know, getting an action to be taken.

Frank Bibeau [00:42:51] And I sometimes forget that people don't remember that we sue for less than money. That's the whole problem and I have to explain that to tribal members sometimes and other people when they want me to do something. I tell them I don't chase money. Because it confuses you, it blinds you, it makes you look at the wrong issues.

[00:43:09] I've probably had an opportunity to talk to 30 to 50 different kind of law schools all over the United States, Canada, the world. And it's obvious to me that those students are looking for another way that might actually work, and they're willing to let go of federal and state law while they're in law school. They still have to study for the bar and hope that something else will work and get engaged in it. So that's probably the best validation, you know, of what's going on.

John Reed [00:43:40] Well, I have a feeling there are many things that will be part of the legacy you've left behind, and if inspiring up-and-coming law students to think outside the box or throw away the box, that's quite a testament to the mark that you've left.

[00:43:54] You are a scholar as well as a practitioner. You're certainly an innovator. I really enjoyed this and hopefully my questions have been good to you. Tribal laws, tribal rights, tribal culture. These are largely unfamiliar and unknown to most people in the U.S. today. And I thank you so much for taking the time to educate us, to educate me. It's really been fascinating.

Frank Bibeau [00:44:14] Well, I've had a great day here today and your questions have been right on target.

John Reed [00:44:18] You're not putting on any sort of airs or a different persona to do what you do or the way you live or whatever. You're completely genuine throughout. It's refreshing is what it is.

Frank Bibeau [00:44:28] It's, it's a lot easier.

John Reed [00:44:30] I'm sure it is. I'm sure it is.

[00:44:33] To our listeners, if you'd like to learn more about Frank and his work, visit StickyLawyers.com where we've posted several links to news and other resources about him. Regardless of where you found us, Apple Podcasts, Spotify, YouTube, etc., please take a moment to hit the follow button. That way you'll be sure to get new episodes, and also let us know you're a fan. And we would appreciate that.

[00:44:56] Until next time, I'm John Reed, and you've been listening to Sticky Lawyers.