“Justice,” according to Justice Felix Frankfurter’s maxim, “must satisfy the appearance of justice.”
Fair-minded people must find that appearance rather ugly if they read about happenings in North Dakota and in Oregon this week, when a favorable verdict for the armed white occupiers in Oregon is a dismaying contrast to the escalating abuse of non-white, un-armed occupiers in North Dakota.
On October 27, The New York Timesfront-paged the verdict of a federal jury that acquitted seven defendants in Portland, Oregon, in the case of the armed occupation of the Malheur Wildlife Refuge, formerly the Malheur Indian Reservation, led by the sons of the deadbeat Nevada rancher, Cliven Bundy, who famously refused to pay grazing fees owed to the Bureau of Land Management for 20 years and then called in “patriots” of the militia movement to stop the sale of his cattle to collect those fees.
Some people criticized the government’s decision not to go to war with its own citizens over some grazing fees, and blamed that decision when Ammon and Ryan Bundy brought an armed band of those same “patriots” to Oregon on the pretext of defending Dwight Hammond and his son Steven Hammond, who were scheduled to surrender to U.S. Marshals to serve sentences for arson on federal property.
When the Hammonds insisted on complying with the terms of their bonds and promises to the judge, armed defenders of the right of the Hammonds to set fires on land the federal government had no right to control occupied a nearby bird sanctuary that had formerly been a reservation home to the Northern Paiutes.
The Burns Paiute Tribe residing on a small reservation in Burns, Oregon had a history of working out ceremonial access and protection of sacred sites with the park rangers and so had no interest in seeing them evicted at gunpoint. It did not appear that the occupiers had ever considered that if the federal land title was invalid, then the land reverted to the Paiutes rather than to Oregon.
As in Nevada, the feds in Oregon were still unwilling to provoke a firefight—perhaps recalling the deserved public relations baths the government took over the deaths of 82 Branch Davidians in Waco, Texas in 1993, or the killing of Randall Weaver’s wife and son during a siege of Weaver’s home in Ruby Ridge, Idaho, in 1992.
At Malheur, officers determined to avoid a frontal assault, to watch and wait, allowing media and even the occupiers to pass in and out. On one of these excursions to drum up support, a task force of federal and state law enforcement officers served arrest warrants on the occupiers. All of the leaders gave up their weapons when ordered except for LaVoy Finicum, who was shot dead.
Back at Malheur, the rest of the occupiers surrendered. When allowed in to inspect the aftermath of the 40-day siege, the Paiutes were unhappy with the disregard for their cultural heritage shown by damages inflicted during the occupation. It’s fair to wonder what would have happened if the Paiutes had determined to protect their land with guns?
Google Maps makes it to be 1,246 miles from Burns, Oregon to Cannon Ball, North Dakota—just a tad more than 1,172 miles that will be occupied by an easement for the Dakota Access Pipeline, called by its opponents the Black Snake.
The issues provoking gunplay in Oregon were the federal government’s right to operate a bird sanctuary on the surface, and whether the federal government can charge fees for grazing on public lands underneath. The Paiutes—although the rightful owners—were bystanders and unarmed.
In Cannon Ball, North Dakota, the Standing Rock Sioux Tribe, other citizens of the Great Sioux Nation, and supporters from most other tribes in the U.S. as well as non-Indian allies are attempting to protect their drinking water and slow climate change. The SRST have made it clear that while they welcome people who want to help, bringing weapons would not be helpful.
Without firearms, the Sioux are attempting to defend the very land they were unable to defend with firearms. The shooting part of the Indian wars ended with the massacre of noncombatants at Wounded Knee Creek in 1890. Since then, the rightful owners of the property have appealed to deaf judges and persons whose ears are more attuned to the melody of justice.
On October 13, folksinger and Civil Rights Movement veteran Joan Baez wrote in the San Francisco Chronicle:
“I recently had the honor and privilege to spend a few days with my dear friend Marilyn Youngbird at the Standing Rock Sioux Reservation in North Dakota, where at least 200 tribes have gathered to oppose the construction of the Dakota Access Pipeline. It would traverse the Missouri River, tunneling beneath it, threatening Standing Rock’s only water source…
“If they have a chance of winning this fight, then it will be in good part because they know how to suffer and keep their will strong and their tents pitched when the snows come and the earth freezes over.”
On October 22, North Dakota police attacked a peaceful prayer meeting with batons and Mace, arresting 126 Water Protectors, making a total of 269 arrests since August 10. Local law enforcement refers to gatherings of Water Protectors as “riots.”
On October 25, former Vice President Al Gore released a statement saying in part:
“The courage and eloquence of the Standing Rock Sioux in calling all of us to recognize that in their words, “Water is Life,” should be applauded, not silenced by those who are driven by their business model to continue spewing harmful global warming pollution into our Earth’s atmosphere.”
On October 26, Rev. Jesse Jackson visited Standing Rock and proved he knows how to ride a horse before commenting, “Native Americans who oppose the pipeline have a moral claim to be heard.”
On October 27, in an action The Chicago Tribune called “dramatically escalating,” hundreds of North Dakota and Nebraska law enforcement officers and members of the North Dakota National Guard attacked the Water Protectors’ Treaty Camp with Mace and guns firing bean bags. The camp is the newest set up by the Water Protectors directly in the pipeline’s path along Highway 1806 and is named in reference to the 1851 Treaty of Fort Laramie, which designated the land as belonging to the Great Sioux Nation. According to the Tribune, 117 people were arrested.
The differing treatment of armed white occupiers in Oregon and non-white un-armed occupiers in North Dakota is stark and was so from the first law enforcement reaction to the occupation of Malheur Wildlife Refuge.
The unarmed Water Protectors have been met, so far, by dogs, Mace, batons, and beanbag guns. Hundreds have been arrested. The armed grazing fee deadbeats were allowed to occupy federal land for 40 days, and the one who was shot ran a police roadblock and would not give up his gun.
An Anglo-American jury is always free to acquit, no matter what the evidence shows. When a clearly guilty accused is found not guilty, we call that jury nullification. A jury refusing to convict is supposed to be a place where justice can prevail over law.
The chances of a North Dakota jury ignoring law to produce justice for Indians charged with resisting settler encroachment are not great.
This contretemps brings to mind the late Marlon Brando, a true ally of Indian people who would certainly be at Standing Rock now if he were among the living. In A Dry White Season, Brando as white civil rights lawyer Ian MacKenzie described apartheid era South Africa in his trademark mumble:
“Justice and law … are often just … well, I suppose they could be described as distant cousins—and here in South Africa, they are simply not on speaking terms at all.”
Justice and law did not see eye to eye when crackpots who want to re-fight the Civil War used guns to seize property in Oregon that did not belong to them.
When the Standing Rock cases go to trial, we will see if justice and law can get together to protect those who want to re-fight the Civil Rights Movement and used prayer to seize property that did belong to them.If the Water Protectors of Standing Rock get the same verdict as the people who made an armed assault on a bird refuge, maybe then justice will begin to satisfy the appearance of justice.