Elephant and Wild Rice: Bringing Rhetorics of Materiality into Judicial Spaces

Abstract

Rhetorics of new materialism have articulated an awareness that humans are not alone or centered in their interests and behaviors, and that possession of this worldview makes us accountable to nonhuman entities and things. Past scholarship on new materialism has focused on the necessity and development of such awareness; I take this to be a first move—an epistemic condition for moral action. For the rhetoric of materiality to fulfill its ethical responsibility, we must act through advocating for, and in consideration of, nonhumans. One way to do so is by advocating for nonhumans in court. Despite being traditionally conservative in their rhetoric, legal spaces and actors are producing discursive openings for new materialist awareness to inform jurisprudential philosophy, decision making, and action. Using close reading, I analyze rhetorical artifacts from two cases that involve new materialist rhetorics. The first is Nonhuman Rights Project v. Breheny (2022), in which a nonprofit animal rights organization argues for Happy, an elephant, to be transferred from the Bronx Zoo to an elephant sanctuary. Happy’s advocates argue for her transfer under habeas corpus. The New York Court of Appeals rules against Happy’s release, reasoning that habeas corpus applies only to humans. The second case is Manoomin v. Minnesota DNR (2021), in which Chippewa Anishinaabe peoples argue against the Minnesota Department of Natural resources granting a permit for a pipeline construction project to drain five billion gallons of water from an area adjacent to Tribal lands. Manoomin is a wild rice that grows on water, and its wellbeing is inextricable from that of Anishinaabe peoples. The White Earth Band of Ojibwe Court of Appeals ultimately ruled against Manoomin because of the location of water-taking was outside the boundary line of Tribal lands. This project begins to bridge the scholarly gap between rhetoric of materiality and jurisprudence, demonstrates how public understanding of materiality is moving into legal spaces, provides examples of how to analyze legal artifacts for discursive openings for rhetoric of materiality, and contributes new materialist scholarship by moving it from description of necessary awareness to ethical and legal action.