My first arrest in Austin (not to be confused with first arrest ever) was over my violation of a city ordinance regulating parades. People opposed to the Vietnam War had applied for a parade permit and had the permit denied because the city council was loath to issue a permit for an anti-war demonstration.
The organization denied the permit determined to walk on the sidewalks and obey traffic signals so as to not need a permit, but I was one of about 20 people who would not stand for the denial. We walked right down the middle of Austin’s main drag, Congress Avenue, as if we had a permit. That got us a quick ride in the paddy wagon.
I won’t bore you with how the prosecutors kept trying to gin up something we had done against the law that could be tried without opening up an argument that what the city council had done was against the law.
Constitutional law trumps city ordinances, state laws, or even acts of Congress. But when there is a law on the books, the presumption is that it’s a valid law and the trial is merely a legal encounter of the first kind. Taking on the law itself creates a legal encounter of the second kind and takes lots of players in the system—including judges---outside their comfort zone.
We look back on the sixties and seventies and what we called at the time “The Movement,” and most of it took place in legal encounters of the second kind. The wholesale violations of laws on the books did create a cost in terms of public opinion.
For some people opposed to racial segregation or to the Vietnam War, legal encounters of the second kind were asking too much. This was the cause of MLK’s Letter From Birmingham Jail. King was not writing to his enemies, but to his friends who endorsed his goals but not his methods.
King’s assertion that the Constitution and Bill of Rights would vindicate his actions was more optimistic prediction than moral certainty because words on paper don’t become actions unless judges have the courage to speak the law and executives have the courage to enforce it. Following the law takes courage from the wrong side of public opinion.
Public demonstrations by their nature disrupt business as usual, and the persons whose lives have been disrupted often respond with violence. MLK had to respond to the argument that the demonstrators must politically own the violence they “provoked” by their actions.
King denied a robbery victim provokes a robbery by having money. In different times, he might have denied that a woman provokes a rapist by the length of her skirt.
Indians own the African-American struggle against color and ethnic prejudice because we are victims of the same. Those of us whose tribal nations bought into chattel slavery and acquired racist attitudes to justify it should be even more ashamed than the white slave mongers because we had every reason to know better.
King’s Birmingham letter was directed towards white people who claimed to know better. Our struggle generally, and the struggle over the Dakota Access Pipeline in particular, will be short of allies who claim to know better than the mindless corporation on the other side.
MLK’s reaction to the claim that the demonstrators must own the violence deployed against them was to observe, “Society must protect the robbed and punish the robber.” Which brings us to well robbed American Indians and why they are a step beyond African-Americans and into areas that even civil rights veterans find intimidating: Legal encounters of the third kind.
Legal encounters of the third kind confront directly the argument that nonviolence can never be revolutionary. These encounters are never chosen, but rather forced upon people who have no recourse to law. Unlike in legal encounters of the second kind, there is not much hope of rescue by any reading of the Bill of Rights the federal courts—as presently constituted—are likely to entertain.
Legal encounters of the third kind can be revolutionary, but that which may be revolutionary may also be fatal. Direct action with no constitutional safety net is not to be undertaken lightly and never over anything less than a gut issue where negotiations and conventional legal actions have failed.
Each individual deciding what to do about the Dakota Access Pipeline will have to decide for herself or himself whether that point has been reached. If it has, then you must either accept the unacceptable or go all in. It is the sort of commitment that the English colonists that did us so much harm made when they determined the time had come to shuck off the authority of the English king.
When you take yourself outside the law, you are doing just that: repudiating your sovereign. The risk the colonists took was palpable. While they have done and continue to do terrible things, they are not without courage, the sort of courage that led them to pledge to each other their lives, their fortunes, and their sacred honor.
In part III, I will consider the situation the Standing Rock Sioux are facing and by implication the choices in front of those who choose to stand with the Standing Rock Sioux. By “consider,” I mean more discussion than solution because what they and their allies should do is not the sort of decision that can be suggested by an old man speaking from the cheap seats.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.