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The Law Bends Towards White Supremacy

by Allan Branstiter

[x-Posted from Agreeing Loudly]

Cowboy Dwane Ehmer, of Irrigon, Ore., a supporter of the group occupying the Malheur National Wildlife Refuge, walks his horse Thursday, Jan. 7, 2016, near Burns, Ore. The group has said repeatedly that local people should control federal lands, but critics say the lands are already managed to help everyone from ranchers to recreationalists. (AP Photo/Rick Bowmer)
Cowboy Dwane Ehmer, of Irrigon, Ore., a supporter of the group occupying the Malheur National Wildlife Refuge, walks his horse Thursday, Jan. 7, 2016, near Burns, Ore. The group has said repeatedly that local people should control federal lands, but critics say the lands are already managed to help everyone from ranchers to recreationalists. (AP Photo/Rick Bowmer)

David Fry, the final holdout occupying the Malheur Wildlife Refuge in southeastern Oregon, surrendered to federal authorities yesterday. Before he did so, negotiators asked him what he thought Jesus would do in his situation. With the creativity and political acumen of an Ayn Rand novel, he responded with a demand for pizza and marijuana, something about U.F.O.s, and criticism for a government condones both abortions and drone strikes. Finally, after weeks of pointless bluster, artifact-fingering, and laying down weird sumo wrestling challenges to Chris Christie, Fry ate one last cookie, muttered “Alrighty then,” and exited his tent. Ammon and Randy Bundy’s dumb revolution ended with an Ace Ventura quote.

It’s easy to make light of these sagebrush constitutional scholars because their understanding of the American legal code and its history inaccurate. The fact that the likes of Sean Hannity and Bill O’Reilly embraced, then rejected, then embraced, then rejected (maybe?) their cause also enhances its comedic value. As dumb as these protester lookwith their livefeeds, shipments of junk food, and Gadsden flags—as futile and pointless as LaVoy Finicum’s death for this cause appears—it has a very serious history.

The New York Times published a great article about Fry’s surrender, and I really recommend reading it if you want a good understanding of the recent history behind the story. The Times traces the origins of the Malheur protest to longstanding conflicts between the federal government and western ranchers, farmers, timber agents, and miners over access to public lands.

Most Americans who do not live in the far west do not know that the federal government owns and manages over half of the land in the region. For anyone familiar how the U.S. purchased or seized western land, then sold it or homesteaded it out to private landowners, this fact should not be a surprise. If you’ve ever lived on or near a reservation or federal wildlife reserve, you’re also very familiar with the fact that Washington has been leasing property out to ranchers and farmers like the Bundy family for a very long time.

What most Americans, even those living in the West, don’t know is that  white families like the Bundys have been challenging federal authority over public lands since, well, the founding of the nation. What you may not also know is that the federal government has very often proven unable to stop these challenges. So, where we see a laughably and tragic waste of time, anti-government protesters see a movement with successful historical precedents.

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In 1887, wealthy and influential white ranchers trespassed onto the Round Valley Indian Reservation and seized over 90 percent of land set aside by the federal government for Native American farmers. Washington responded by sending battery of artillerymen to eject the squatters from the reservation. When the soldiers arrived and evicted a few white households, the trespassers obtained an injunction against the unit’s commander. The artillery captain refused to respond to the injunction, which led to the local sheriff to form a posse to arrest him. In the end, the army withdrew from the reservation, leaving it in hands of the trespassers.

The reason I bring up the so-called “Round Valley War” is because most Americans today, like many elites associated with the federal government in the 1880s, take federal supremacy on Indian Reservation and federal lands for granted. We tend to see our national parks as pristine vestiges of untouched wild under the protection of an unassailable federal government. In reality, reservations, wildlife sanctuaries, and national parks are like our money—the only thing that gives them value is the fact that the federal government says, and we believe, they have value.

And so it is with delineations between public and private land, especially in the West. In the case of the Round Valley War, the federal government could point to the map and declare “This land is hereby set aside for the purposes of indigenous people and off limits to white settlers!” until they were blue in the face. But if they could not protect that land, and if they could not enforce those borders, declarations of federal authority meant nothing.

Time and time again—as we have seen at Round Valley—the government has been unwilling to use force to protect the sovereignty of public lands. Instead, they have opted to negotiate with squatters and trespassers. The fact that families like the Bundys have rented government land at well below market value is a product of one such negotiation. While those allied with the Bundys might be fools, they are fools with successful antecedents.

We should never forget the fact that race plays a major role in this history. Imagine you are a Native American in today or in the 1880s who decided to claim your squatter rights on land outside the bounds of a reservation, as in the case of the Occupation of Alcatraz. Or maybe you decided to follow a spiritual path that went beyond what the federal government thought was acceptable, as in the case of the Ghost Dance Movement. In either of these cases, you could expect the full brunt of the federal government to be deployed against you.

This issue came up with the Malheur Standoff, as well. Observers were quick to point out that when Native Americans or African American occupied government property, the state did not hesitate to forcibly remove them. In an age after Trayvon Martin, Eric Garner, and Tamir Rice, images of armed white people eating Twinkies and defying the U.S. government served as an unpleasant reminder of the racial state of our nation.

The FBI’s has already attributed the arrest of the protesters to a strategy of patience and caution. Even The Atlantic was impressed, concluding that the feds and local police were finally learning from dozens of high-profile shooting over the last year.  But the history of federal land ownership suggests that the government did not crack down on the Malheur protester for reasons other than racist cops. It’s important to remember that the history of this siege is older than the 41 days since the Bundy brothers seized the wildlife refuge. It’s longer than the 20 years since Cliven Bundy started illegally grazing his cattle on federal land in Bunkerville, Nevada. It’s even longer than the 62 years since the Bundy’s started grazing on the Bunkerville Allotment at below-market prices. The history of “pre-emptive grazing rights” on public lands stretches back into the nineteenth century, and suggests that there is something intrinsically racist about how our laws determine one’s access to the land.

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The U.S. government owns, protects, or manages over half of the country's western territory. Source: Wikipedia.org
The U.S. government owns, protects, or manages over half of the country’s western territory. (Source: Wikipedia.org)

The Malheur Standoff can teach us many things. First, it can teach us that the public lands can be seized by private interests—whether by squatting ranchers or the oil and gas industry. Second, it teaches us race informs how the government responds to those who challenge its authority. Third, it teaches us (as the aforementioned Times article points out) that “The question of who should control land in the West . . . has now been pulled into the polarized political terrain that has already made the nation a house divided.” In other words, an issue long associated with “Sagebrush Rebellions” has now injected itself into mainstream American conservatism.

And yet, there is one less obvious lesson we can glean from the Malheur Standoff. Ta-Nehisi Coates has famously pointed out how predatory and white supremacist urban policy relegated African Americans to a perpetual state of poverty; however, the white supremacy of real estate extends far into our nation’s hinterlands. Yes, white squatters are often successful after the fact. In the case of the Round Valley War, their rights to the land they stole were vindicated by the courts not simply because they government could not muster the force to evict them, but because the nation’s legal culture privileged white land ownership above all else.

The game was rigged against the Native inhabitants of the Round Valley since the creation of their reservation. While the boundaries of the reservation were originally drawn in 1860, they were “expanded” in 1873 to make room for other dispossessed tribes. Throughout this process, white trespassers took hold of vast swaths of reservation land by creating militias attacking Native rancherias. Whites also created an “apprentice” system that indentured impoverished Indians as ranch hands.

When the Indian Bureau expanded the reservation in 1873, these squatters used existing laws to not only retain their land, but expand their holdings in the reservation. By 1887, a few white ranchers controlled 90 percent of the reservation and enjoyed the backing of a white supremacist culture and a white supremacist legal code. With the support of the legal precedent, the squatters enjoyed the support of the court. Without the support of the law, Native Americans had a reservation in theory only.

Whether it is in the Round Valley or the Malheur Wildlife Refuge, the history of white anti-government land seizure in the United States teaches us that the trajectory of our legal code, as well as our understanding of land ownership, bends towards white supremacy. This fact continues to effect more than notions of state sovereignty or our right to enjoy federal lands. More importantly, it adversely effects the condition of minorities in the ghettos of our cities and the reservations of out countryside.

Ammon and Randy Bundy (and now Cliven Bundy) are sitting in a jail cell in Portland, where they plan to bring their grievances to court.The bright side is that recent court decisions have ruled against people like the Bundys repeatedly. In 1887, the land pirates in Round Valley enjoyed not only the support of the law, but the people—including many in government. This is something the Malheur protesters could dream for. However, the hesitancy to bring down the full weight of the law on these anti-government radicals should give us pause. If it does, spare a moment for our legal code and how it uses land to reinforce white supremacy.

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Further Reading:

Kevin Adams and Khal Schneider, “‘Washington is a Long Way Off’: The ‘Round Valley War’ and the Limits of Federal Power on a California Indian Reservation” in The Pacific Historical Review (November 2011).

Ta-Nehisi Coates, “The Case for Reparations” in The Atlantic <http://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/>.

Stacey L. Smith, Freedom’s Frontier: California and the Struggle over Unfree Labor, Emancipation, and Reconstruction (University of North Carolina Press, 2015).

Allan Branstiter is a writer and Ph.D. student studying U.S. History at the University of Southern Mississippi. Currently residing in Los Angeles, California, he is writing a dissertation examining the experiences of Civil War veterans in the American West. He is a veteran of the Iraq War and a former candidate for the North Dakota State Senate.

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