Freedom of Speech: It’s All About Race: Oregon Standoff and No DAPL

By Dayna Jones & Val Merlina, Law Interns & Editorial Team with Law@theMargins

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All oppression is connected, but the glaring blindness of white privilege stands in the way of this critical recognition. As movements across America, from Standing Rock to Don’t Shoot PDX and the Driscoll Farmworker Boycott, engage in the struggle against corporate and governmental entities to realize their human rights, the discrepancy between treatment of peoples cannot be ignored. The mainstream public often discredits movements and protests when they do not focus solely on nonviolent principles, but in the same breath, discredits movements and protests that do focus on nonviolent principles as being “disrespectful,” “hypocritical,” or “pointless.” One need only look to the public frenzy around Colin Kaepernick taking a knee to protest the treatment of black lives in America to see this double-edged sword. The recent acquittal of a white, armed, self-proclaimed “militia” in Oregon being simultaneously timed with the gross mistreatment of Native Americans and their allies in North Dakota, begs a further look into the way race influences the mainstream perception of who gets to stand against governmental or corporate power and express their views in protest.

Malheur Refuge Occupiers Found Not Guilty

A 41-day standoff with federal agents brought the story of the Bundy family to national attention this past January when an armed group seized national wildlife refuge lands in Oregon. Two leaders of the occupation, the Bundys, had been engaged in a long-running dispute over federal lands control. The flashpoint: authorities arrived at the Bundy farm in 2014 to round up cattle due to unpaid grazing fees incurred when Bundy cattle grazed on federal lands. The Bundy family patriarch and his allies used armed force to protest the cattle round up, and authorities eventually released the cattle to de-escalate the situation. Perhaps hoping for the same victory, the Bundy brothers traveled to Oregon to again protest the government a short year and a half later. When the authorities arrived on the scene, they encountered an armed group of protesters occupying a part of the Malheur National Wildlife Refuge [pdf].

During the occupation, protesters had “established armed patrols,” and questioned those who visited, thus both preventing the federal employees from going to work, as well as denying the public’s access to federal lands, specifically for which the lands were designed in the spirit of citizen enjoyment of America’s parks. The protestor-occupiers dug latrines through Burns Paiute sacred grounds and defecated in them. On 26 January 2016, LaVoy Finicum, rancher-turned-occupation leader and spokesperson, was shot to death when police tried to apprehend the leaders of the occupation. The occupation ended on 11 February 2016. Finicum is the sole reported casualty; most of the occupiers were white, and most were armed. The occupation cost the federal government an estimated $4.3 million, and the FBI recovered 30 guns, and 16,636 live rounds at the surrender. The remaining protestor-occupiers had various charges filed against them.

On Thursday, 27 October, an all-white federal jury acquitted the Bundy brothers and five others, finding them not guilty of the charge of “conspiracy to prevent by force, intimidation, and threats employees of the US Fish and Wildlife Service, and Bureau of Land Management from carrying out their duties.”. The jury verdict is considered by some to be a “win for rural America;” yet, others do not share these sentiments. First, environmental concerns cascaded: the trickle-down of the forced worker absence due to the occupiers’ armed patrols meant no one would be there to operate the series of dams in the refuge; the water levels would thus be left unmanaged, resulting also in the non-management of the carp population in Malheur Lake – defined as an “aggressive species that eat almost anything” – that would consequently harm the ecosystem of migratory birds in the locale.  Second, the wildlife refuge workers were essentially forced out of their job and income.  Third, others saw the occupation as an assault on the founding principles of the US Forest Service (President T. Roosevelt stated: “the rights of the public to the natural recourses outweigh private rights, and must be given its first consideration”); growing threats and attempts of the transfer of public lands to private owners for private profit would limit access to all. Yet still, the seven defendants were found not guilty.

No DAPL Water Protectors on Native Lands

From the moment the plans for the Dakota Access Pipeline (DAPL) were released in 2014, the Standing Rock Sioux have opposed its development. The pipeline is a 1,134 mile project designed to transfer up to 570,000 barrels a day from North Dakota to Illinois. Initially, the considered route was for the DAPL to cross the Missouri about 10 miles north of Bismarck, a city comprised of about a 92% white population, and an average annual income of $57,660. Upon review, the Army Corps of Engineers decided this route was not a viable option for several reasons, one being the close proximity to wellhead source water protection areas. There was concern that, in the event of a spill, the route would be crossing through a “high consequence area” and have a significant adverse effect on water supply.

Alternatively, the Corps approved a route beginning in Stanley, North Dakota and crossing the Missouri around about ten miles upstream of the Standing Rock Sioux reservation. The Standing Rock Sioux, whose tribal members with an average annual income of $4,421, rely on the Missouri River as their sole source of potable water. Additionally, the route runs directly through sacred historical tribal sites. Sacred historical tribal sites have been given legal protections by the United States, but none of the legal protections have been enforced to stop development of the DAPL. The tribe has expressed grave concern over this construction, requesting a full environmental impact statement (EIS). To date, a full EIS has not been issued for DAPL.

To protect water, sacred lands, and their livelihood as ranchers and cattle farmers, a small group of Standing Rock Sioux began gathering to pray and hold signs against the DAPL earlier this year. This group gained in numbers, both Sioux and their allies, and Sacred Stone camp was established to protect the water from the Dakota Access Pipeline. There are now several different camps established and protectors say they are not leaving until Dakota Access pulls out of the pipeline project. The protectors have established an on-site school for the children, a kitchen that feeds hundreds for free each day, and medical facilities that provide both traditional and Western medicine. Zintkala Mahpiya Wi Blackowl, Sky Bird Woman, birthed her baby alone (as is the traditional Lakota way) in her teepee earlier in October. “Having babies is my act of resistance; our reproductive rights as Native women have been taken away from us in so many ways,” she said. “At one time, we were forcibly sterilized; assimilation has come down really hard on us.” Protectors start each morning with prayer, and some take part in spiritual sweat lodge ceremonies as a way to receive answers, wisdom, and guidance from Creator and Mother Earth.

The Morton County Sheriff’s Department and DAPL private security forces have met the protector’s peaceful resistance with increasingly militarized force, sparking world-wide outrage, but confoundingly little mainstream media coverage. On September 3rd, Democracy Now!’s Amy Goodman released shocking footage of protectors being maced in the face and attacked by dogs handled by private security as they marched in front of construction equipment. Indigenous Environmental Network’s Dallas Goldtooth has been broadcasting live Facebook feed of prayer circles being broken up by police with batons, pepper gas being shot into groups of children, elders, and women, sound cannons being utilized with no discretion, and rubber bullets from police hitting random protectors who are holding the line. Earlier this week, a horse shot with a rubber bullet had to be euthanized. Tribal attorney Tara Houska described a momentary glimpse into the scene: a bean bag round flying by her head, police assault rifles trained on the unarmed people, police laughing as the people engaged in prayer and passionate pleas for clean water, an unarmed man being beaten with police batons for refusing to move and holding the line against construction. Militarized police forces have been called in from surrounding states, and these forces are using indiscriminate (i.e. same blanket force for children, elders, women, men) physical force to push protectors back from the areas they are standing on. The Governor of North Dakota, Jack Dalrymple has deemed the peaceful acts of resistance an emergency and called in the National Guard. Protectors are being arrested by the hundreds, strip searched and given escalated charges such as “riot.” Several journalists have been arrested and had their footage confiscated as a result of covering the movement. Although some of these journalists have had their charges thrown out, this suppression of a free press is a 1st amendment violation akin to the suppression that takes place under an authoritarian government structure.

Call It as Is: It’s About Race.

Commentators of the Malheur Occupation have been critical of the interplay of protest and race, leaving us to wonder over the hypothetical question, “What if the occupiers had been black?” Social media has even responded with the sardonic #WatchWhitenessWork, and #WhiteBoyMagic. Oregonian news sources have reported the outcry of race in the wake of the jury verdict acquitting the mostly-white occupiers of Malheur National Wildlife Refuge. The acquittal occurred the same day Native Americans and their allies protesting the DAPL at the Standing Rock Sioux reservation experienced arrests, mace deployment, and baton use against them at the hands of law enforcement (police and National Guard). The use of militarized force is continuing to escalate as authorities continue to attempt to drive-off and silence the water protectors from standing in opposition to the deafening dirge-march of corporate advancement.

To speak to the hypothetical question of “what if the occupiers had been black?” there is much to consider. If the seven armed occupier-defendants at Malheur Wildlife Refuge had been black, brown, Muslim, or otherwise looked different than they do (i.e., white), there is a likely chance that they would not have even been brought in to have a jury find them guilty (or, innocent); likely, Finicum would not have been the only occupier killed, and; likely, they would have been treated even more harshly than the unarmed Standing Rock Sioux.

The not-guilty findings of the Malheur occupiers, again, brings to light the significant effect of race within our criminal justice system, as well as authoritative processes. The impact?  The continuation of white supremacy at the hands of the powerful, as well as the protection of white landowning men with guns – an effort that has historically paralleled the plantation master’s fear of slave revolts, and perpetuation of armed militias to protect the status quo up through the Jim Crow era (and, arguably beyond).

Again, as so many times previously in American history, exploitation of marginalized peoples flourishes, adding another page to the history books under the already-substantial “mistreatment of X people(s)” heading. It does not take the hindsight of historical studies to say here, however, that the unequal treatment of the water protectors and Standing Rock Sioux is both civil-rights and human-rights mistreatment.

It is necessary that the legal worker, the historian, the working person, and the citizen stand together and say racism and the furtherance of white supremacist tendencies in all capacities (including at the hands of law enforcement, and the law) are not acceptable; we must acknowledge we see this happening, we have seen this happen before in many capacities, and we stand now against the mistreatment of peoples on account of race.  Mistreatment on account of race is happening now against the Standing Rock Sioux, and it is up to us to respond both positively, actively, and effectively to this incursion on humanity. The American principle of equal protection under the law must now be our guide. History will judge us by our actions, as well as by our inaction – so how will we be remembered?

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