Standing Rock versus the Oregon militia: the fight for property rights reveals deep divisions

Protesters block a highway during a protest in Mandan against plans to pass the Dakota Access pipeline near the Standing Rock Indian Reservation, North Dakota, U.S. November 15, 2016. REUTERS/Stephanie Keith

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Lawyer Kirk Talbott and property rights expert Peter Rabley ask why authorities treated Dakota Pipeline protesters and Oregon ranchers so differently

Two symbolic and starkly different land disputes in America – easily lost in the noise of the 2016 election and its aftermath – underscore some significant and continuing inequities in the application of property rights.

The same day local and state officials used armored vehicles and pepper spray to arrest 140 mostly Native Americans protesting the Dakota Access Pipeline in North Dakota, a jury in Oregon acquitted the Bundy family of all weapons and other felonies from a violent takeover of federal land and property.

The Bundy family and other activists have not paid required permit fees for grazing on federal lands for many decades. Yet despite toting assault weapons in their occupation, the jury found they posed no threat and were legitimately exercising the use of civil disobedience.

By contrast, unarmed Native Americans and others were hit with pepper spray, beanbag rounds, rubber bullets and high-pitched sound devices, delivered by state and local law enforcement.

Thousands of protesting Native Americans representing over 200 different indigenous groups, were protesting in opposition to an oil pipeline that stands to lie within a reservation boundary. It will cross over sacred burial sites and ancestral lands lost in treaties revoked 150 years ago. The pipeline also poses a threat to the main sources of water for the reservation and local communities. Authorities had rejected another route for the pipeline, near the outskirts of almost all-white Bismark, 50 miles to the north.

In recent days, events have turned ugly. There is a military style campaign involving multiple local law enforcement agencies and arrests totaling over 400. Local authorities have arrested only one protestor for firearms charges. Yet local government forces have used Mine-Resistant Ambush Protected vehicles, hundreds of law enforcement officials from at least 7 other states, helicopters and other aerial surveillance. 

It’s an out of balance situation generating heightened tension, more arrests and potential for lethal confrontation. County authorities claim that protesters have become more violent, setting pipeline equipment on fire and erecting illegal and dangerous blockades. But there are larger dynamics at play.

Occupier Duane Ehmer rides his horse Hellboy at Malheur National Wildlife Refuge near Burns, Oregon, January 7, 2016. REUTERS/Jim Urquhart

The Bundy trial and Standing Rock provide prominent windows into the deep divides and contradictions in the definitions of fundamental rights and limits of authority in the U.S. legal system.

The approximate 6 million Native Americans in North America comprise 2 percent of the US population. Indigenous people represent 5 percent of the world’s population, but 15 percent of our planet’s poor, many dispossessed of traditional homelands and often denied ownership and access to local resources. The Standing Rock Sioux and other “water protectors” live within the territorial legacy of violent dispossession that culminated in the Great Sioux Nation treaties of the 1850s and 1860s.  Many Native Americans still feel they own, or at least hold sacred, disputed lands north of the Cannonball River that were taken away by those treaties. The Dawes or General Allotment Act of 1887 in particular, fueled a break-up of communal lands for individual family holdings to encourage subsistence farming on western reservation lands.

Mirroring patterns seen around the world today, the taking of ancestral land and resource use rights and deep cultural disruption followed in the wake of these often well-intentioned laws and acts. Too often, treaties, agreements and laws involving indigenous peoples’ traditional lands become weakened through retractions, annulments and the taking of lands with perceived value by those with access to power and influence.

The two cases, juxtaposed, highlight the importance of recognition of land, water and property rights; no matter where, no matter what circumstances. Standing Rock and the Bundy trial demand our attention in defining the boundaries of justice, decency and fairness, and restoring reasonable accepted limits of force and government authority, underpinnings of our country’s Constitution and democracy.   The Federal Government, in the last days of the Obama Administration appeared to have opened the door to reconsideration of the pipeline route.  Now that the US elections are over and the country deeply divided, the Bundy trial and Standing Rock protests provide stark examples of those fissures in our society and legal system.  As the new Trump Administration takes shape, so too must the civil discourse and government action, both local and national, to search for fairness and accountability in deciding property rights and limits.  

Given human population increases the last century from 1.6 to approximately 7 billion people today, soon to be 9 billion or more, competition for land, water and property overlap across species.  More needs to be done - by government at all levels, as well as by law enforcement, to balance and then clarify, protect and enforce property rights laws for the benefit of all.

Kirk Talbott is an attorney and Visiting Scholar at the Environmental Law Institute.

Peter Rabley is the Venture Partner for Property Rights at Omidyar Network, which supports the work of the Thomson Reuters Foundation on property rights.

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