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Malheur Wildlife Refuge Remains Northern Paiute Nation Territory

On January 2, 2016, a group of white ranchers who are part of what has been called “the Sage Brush Rebellion” began an armed occupation of lands designated as “the Malheur Wildlife Refuge,” outside Burns, Oregon. The protestors disagree with the idea that the lands in the area are “federal lands,” and a number of them decided to carry guns in an effort to back their point. Yesterday, twenty five days into the protest, there was an exchange of gunfire some distance from the wildlife refuge.

A spokesperson for the protestors, LaVoy Finicum, was killed and another man was wounded. Although protest leader Ammon Bundy and seven other protestors were arrested, other protestors are maintaining the protest. This article is an effort to put the protest into a little known historical context regarding the Northern Paiute Nation and the legislation by which the U.S. Congress created a territorial government for the Oregon Territory.

On August 14, 1848, the United States Congress passed “An Act to establish the Territorial Government of Oregon.” It did so with one major proviso: “Provided, That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians.”

When the United States did eventually make a treaty with the Northern Paiute, it was never ratified by the United States Senate, which means that to this day the rights of the Northern Paiute Nation “remain unextinguished by treaty between the United States and such Indians” as specified by the Oregon territorial act.

The U.S. Fish and Wildlife Service website says that “the Malheur National Wildlife Refuge was established on August 18, 1908, by President Theodore Roosevelt as the Lake Malheur Reservation.” It says that President Roosevelt “set aside unclaimed government lands encompassed by Malheur, Mud and Harney Lakes ‘as a preserve and breeding ground for native birds.”

August 18, 1908 was sixty years and four days after Congress had passed the Territorial Act of Oregon, according to the terms of which the Paiute lands in question were still “unextinguished by treaty between the United States and the” Northern Paiute Nation. Hence, the U.S. Fish and Wildlife Service website creates a smokescreen based on a falsehood by saying that the lands designated as the Malheur Wildlife Refuge were “unclaimed government lands.” They were and still are part of the Northern Paiute Nation territory, because the Northern Paiute have never ceded or relinquished those lands by a ratified treaty with the United States.

Today, a group of armed and disgruntled white men are said to have occupied “federal lands” at the Malheur Wildlife Refuge, when, according to the United States government’s own organic law for Oregon, the lands are still Paiute lands. The mainstream media, however, is unlikely to ever acknowledge that to this day the lands in question are still Northern Paiute Nation territory.

The men who are up in arms regarding what they consider to be the federal government’s heavy handed approach to certain ranchers say they are taking their actions on behalf of “the people.” They are evidently not in the habit of turning to the dictionary to look up key words, such as the word “public,” which means “of or pertaining to the people.”

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The society at large who call themselves “the American people” consider the disgruntled white men to be delusional because “public lands” are said to be already held in trust for them by the federal government. This results in the wry observation, in contradiction to the armed men, that “public lands already belong to all of us.” But that refrain is also part of the big lie that ignores the Indian rights language of the 1848 congressional “Act to establish the Territorial Government of Oregon.”

Federal government officials and the general public are fond of mentioning “the rule of law” in their criticism of the armed white men who are occupying the Malheur Wildlife Refuge. The protestors are being condemned for not obeying “the rule of law.” Yet at the same time, federal officials and the general public conveniently ignore “the rule of law” which is the Indian rights provision that the Oregon Territorial Act “shall not be construed to impair the rights of person or property now pertaining to the Indians in said Territory” until a treaty of relinquishment or cession has been made by the United States with a particular Indian nation.

Clearly, the United States, which was founded as a political system that George Washington called “our infant empire,” is a highly hypocritical country, which could give a damn about the land rights of the Paiute Nation. The Oregon Territory was founded as a colony of the American Empire, and, as a result, to this day Oregon as a state of the United States is officially considered a “Promised Land,” and the “Land of the Empire Builders.”

 Following the metaphorical patterns of the biblical Old Testament narrative, the Paiute, along with other Native Nations, have been assigned the role of dispossessed “pagans” in “the Promised Land” of Oregon. And this is why the Act to establish the Territory of Oregon is not factored into the discussion of that part the Northern Paiute Territory which has been designated “The Malheur Wildlife Refuge.”

Don’t believe me? Check out the words to the official Oregon State Song, “Oregon, My Oregon,” by J.A. Buchanan, with Music by Henry B. Murtagh: “Land of the Empire Builders, Land of the Golden West, Conquered and held by free men, Fairest and the best, On-ward and upward ever, Forward and on, and on; Hail to thee, Land of the Heroes, My Oregon. Land of the rose and sunshine, Land of the summer’s breeze; Laden with health and vigor, Fresh from the western seas. Blest by the blood of martyrs, Land of the setting sun; Hail to thee, Land of Promise, My Oregon.”

An unratified Indian treaty conveys, cedes, relinquishes, and surrenders nothing on the part of an Indian nation to the United States. However, the U.S. government has gotten away with ignoring the documentary record of unratified Indian treaties, especially when a careful examination of that record will benefit an Indian nation, and disadvantage the United States.

If anyone has a legitimate gripe with the federal government of the United States it is the Native nations whose unextinguished rights continue to be ignored. Think of how strange it would be if the white ranchers who claim to have a beef with the United States government, and the general public who see the white bellicose ranchers as taking a ridiculous stance, could come together to demand that the Northern Paiute Nation’s territory deserves to be respected by the United States government, by acknowledging that it is still Northern Paiute Territory, and thereby demand that the rule of U.S. organic law be upheld.

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery(Fulcrum, 2008). He is a co-producer of the documentary movie, The Doctrine of Discovery: Unmasking the Domination Code, directed and produced by Sheldon Wolfchild (Dakota), with narration by Buffy Sainte-Marie (Cree).