Steve Russell :
Two wars for the American West

The older war is known collectively as the Indian wars. The second is a continuation of the bloodiest conflict in the history of the nation, the Civil War.

stand off at standing rock

Native Americans, based at the Sacred Stone Spiritual Camp, in stand-off during protest against Dakota Access Pipeline which is crossing treaty lands. Image from Bronx Climate Justice North.

By Steve Russell | The Rag Blog | September 5, 2016

Two wars are simmering in the Western United States, both thought to have ended long ago and both making a job with the federal government a potential assignment to the front lines. An interactive map, published by High Country News,  shows how dangerous it is these days to work for one of the government agencies managing public land.

The older war is known by a collective description, the Indian wars. The newer war is the one so far causing more danger to government employees. It’s a continuation of the bloodiest conflict in the history of the nation, the Civil War.

Conventional wisdom holds that the Indian wars ended in 1890, with the U.S. Army’s massacre of noncombatants at Wounded Knee. The nascent technology of photography robbed the soldiers of deniability, if not of their fanciful Medals of Honor, and public opinion turned as stomachs turned viewing the stacks of frozen bodies.

The United States ended the mass killings of noncombatants after 1890.

The United States ended the mass killings of noncombatants after 1890. The Plains Indians had ended offensive operations in the Northern Plains after Sitting Bull was “shot while resisting arrest” the same year. Armed resistance in the Southern Plains had ended with Quanah Parker’s surrender in 1875. Geronimo’s war against both the U.S. and Mexico ended with his surrender in 1886, and the old Apache leader died at Ft. Sill, Oklahoma, in 1909 — still officially a prisoner of war.

The American Civil War is supposed to have ended with the surrender of the last Confederate forces under Cherokee Gen. Stand Watie on June 23, 1865. The precipitating issue — chattel slavery — was papered over, but the exploitation of the former slaves continued with the Black Codes and the Jim Crow laws.

The former Confederacy did not accept the supremacy of the federal union and the Indian nations did not accept the trampling of their sovereignty and continuing theft of their remaining resources. Both of these wars proceed today, by differing means.

U.S. settlement of the West was a government project, subsidized and protected every step of the way, starting with the military part of the Indian Wars. In addition to suppressing Indian opposition, the government funded the transcontinental railroad and the Homestead Act of 1862 promised “free” land (only lightly used by the Indians recently evicted) to settlers who lived on it for five years and produced crops.

It became federal policy to encourage and subsidize settlement in the West.

While the Civil War was still going on and before the shooting part of the Indian wars ended in 1890, it became federal policy to encourage and subsidize settlement in the West. Between 1850 and 1871, the government granted railroads 1.31 million acres of land for rights of way, some of which bisected Indian treaty land. Federal loans to railroads to fund construction totaled almost $65 million.

Under the Pacific Railway Act of 1862, in addition to the rights of way and the loans, the railroads got a grant of up to 20 sections of land for every mile of track laid. A section is a square mile or 640 acres, and the grants were made in a checkerboard pattern for 40 miles on each side of the right of way.

When some of the western lands proved too dry for farming, settlers began to agitate for federal irrigation projects. The railroads supported the idea with enthusiasm because water would increase the value of the land they had been granted to encourage construction. Federal involvement began in 1902 and in 1923 irrigation and flood control were centered in the Bureau of Reclamation, which sold water to farmers at a fraction of fair market value

Irrigation was a boon for farmers like the railroads were for ranchers. The great cattle drives of the 19th century were undertaken by rounding up a herd from the open range and driving it to a railhead for shipment to the eastern cities where the consumers of the beef waited. No rail — no sale.

In 1850, the U.S. had about 9,000
miles of railroads.

In 1850, the U.S. had about 9,000 miles of railroads. By 1885, there were 87,000 miles. Ranching in the West was made possible by the federal government forcing the Plains Indians to reservations, allowing free grazing on the open range, and funding the railroads to get the cattle to market.

The Homestead Act was amended many times, and the last state to encourage settlement with “free land” was Alaska, where the Supreme Court refused to recognize aboriginal land titles in Tee-Hit-Ton Indians v. United States in 1955. The last homestead deed was issued for land in Alaska in 1988.

Another law that was a people magnet was the General Mining Act of 1872 that allowed mining on public land, first come-first served, without having to split the income from public lands with the government or the dispossessed former owners.

Ranching, like farming and mining, was subsidized by the government. Until 1934, when the Taylor Grazing Act changed the rules, federal land was available to graze livestock free for the taking. Since then, ranchers are supposed to get permits from the Bureau of Land Management (BLM) and pay a fee that is typically under fair market value. A similar law allows for grazing permits on land controlled by the Forest Service.

The ranchers, like the miners to a lesser degree, were born with government largess.

The ranchers, like the miners to a lesser degree, were born with government largess they take for not only a birthright but also a constitutional principle. Their constitutional ideas proceed on two fronts.

First, they take the Tenth Amendment principle that the federal government is one of enumerated powers to mean that the Confederacy was right. There is no enumerated power to preserve the union by force or — more to the point — to maintain and manage an inventory of public lands. Those lands, they maintain, are subject to state sovereignty. They are correct about only one state, Texas, which retained title to public lands in its annexation treaty.

Second, they take the Second Amendment right to keep and bear arms to be not primarily for hunting or home defense, but for armed insurrection against federal tyranny, the outcome of the Civil War notwithstanding. This is radical American exceptionalism when most of the world considers imprisonment without charges or government control of the media to be tyranny — and some ranchers in the American West find tyranny in grazing fees.

It is not a crime to fail to pay grazing fees, so the government relies on the common legal rule that one who provides necessary food for an animal has a lien on the animal. The BLM hires cowboys to round up the livestock being grazed on public lands and sells the livestock to cover the grazing fees.

Luther Wallace “Wally” Klump, an Arizona rancher, got put in jail for contempt of court during a BLM action to collect grazing fees. Klump’s 2004 statement to The New York Times put together the issues in a manner as clear as it is frightening:

The Second Amendment is my ace, and they know it’s my ace. The founding fathers gave the individual a gun to fight the tyranny of the government. What’s that mean? The bearer can kill someone in government if the reason is justified. But it’s never been tested. I told them, you take those cows, I’ll kill you as mandated by the Second Amendment.

His determination to continue fighting the Civil War intersected with the continuing Indian wars.

In 2014, Nevada rancher Cliven Bundy was the target of BLM enforcement action because he had failed to pay grazing fees for 20 years. Bundy claimed that if he owed grazing fees, he would owe the state of Nevada rather than the federal government in spite of a Civil War era “paramount allegiance” clause in the Nevada constitution. Bundy’s determination to continue fighting the Civil War intersected with the continuing Indian wars.

In 1979, the Indian Claims Commission awarded the Western Shoshone $26 million in compensation for Shoshone lands lost to “settler encroachment” in violation of the Treaty of Ruby Valley. The Shoshone refused the money because they had never agreed to sell the land at any price.

Shoshone elders Carrie and Mary Dann grazed their cattle on Shoshone treaty land without paying fees to the BLM, based on the Treaty of Ruby Valley, Art. VI of the Constitution, and a report by the Inter-American Commission on Human Rights of the Organization of American States.

In 1992 and again in 2002, the BLM rounded up the Dann sisters’ cattle and sold them for grazing fees. In 2014, the BLM rounded up 400 head of Cliven Bundy’s cattle for the same reason.

Before the cattle could be sold, the ‘patriots’ invoked their Second Amendment remedies.

Before the cattle could be sold, the armed “patriots” of the militia movement invoked their 2nd Amendment remedies. They appeared on video sighting their assault rifles on BLM employees. Facing some 400 armed men promising a bloodbath, the BLM wisely decided that some grazing fees were not worth anybody’s life. The federal agency gave the cattle back and stood down, resulting in major encouragement for the militia movement.

The next battle in the militia movement’s refighting of the Civil War also had a subtext of the Indian wars. Steven Hammond and his father Dwight Hammond were due at the beginning of this year to report to the U.S. Marshal to begin serving five years for arson on federal lands.

Cliven Bundy announced that the Justice Department “has no jurisdiction or authority within the state of Oregon.” Bundy’s son Ammon posted a video on YouTube appealing to the militia movement to come to Oregon and defend the Hammonds.

After a rally in support of the Hammonds in Burns, Oregon, a number of individuals claimed by the organizers to be 150 began an unopposed but armed occupation of Malheur Wildlife Refuge. Ammon Bundy pleaded for reinforcement and for supplies, claiming, “We’re going to be staying for several years.” Cliven Bundy chimed in with a video urging his supporters to go to Malheur and go armed.

The site of the occupation, which the occupiers claimed should be Oregon land rather than federal land, was established by President U.S. Grant as the Malheur Indian Reservation for the Northern Paiute. As retribution for having sided against the U.S. in the Bannock War of 1878, most of the Northern Paiutes were removed to Washington Territory.

A tiny remnant of the Malheur Indian Reservation is now the Burns Paiute Reservation, and the tribal government of the Burns Reservation has reached a modus vivendi with the park rangers at Malheur to protect Paiute sacred sites and allow any necessary ceremonies. Should the government close the wildlife refuge, possession does not revert to Oregon, but to the Paiutes.

Bundy’s call for reinforcements was in vain and the occupation ended with one militiaman dead, the leaders in custody, and the Bundy clan facing federal indictments for the actions taken against federal officers back in 2014.

The Standing Rock Sioux tribe claims that the pipeline is crossing treaty lands.

Recently, another call for reinforcements went out on social media. The Standing Rock Sioux tribe claims that the Dakota Access Pipeline is crossing treaty lands and the Standing Rock water supply without the consultations to which the tribe is entitled.

The Sioux and their allies have been at what they call the Sacred Stone Spiritual Camp on land owned by a Standing Rock citizen, LaDonna Allard, since April.

Construction near Standing Rock started on August 10, and the next day about a dozen demonstrators were arrested trying to block the project, including Standing Rock Chairman David Archambault II. The call for reinforcements went out and, within a week, the Sacred Stone Spiritual Camp swelled from a few dozen people to over 2,500.

Archambault has made clear repeatedly that while direct action has become necessary, he and the rest of the leadership want nonviolent direct action. No weapons are allowed in the Sacred Stone Spiritual Camp.

The Indian wars continue as tribal peoples work to defend what little they have left.

The Indian wars continue as tribal peoples work to defend what little land and resources they have left. The Civil War continues because the descendants of settlers who could not have come west without government subsidies have now convinced themselves that government that set them up in business now lacks authority to manage public lands.

The warriors for reversing the outcome of the Civil War and the warriors in defense of Standing Rock’s water supply and treaty rights have chosen very different tactics.

The frustrated Confederates stand on the Second Amendment.

The Indians stand on their own laws and international treaty law, but they point at the Fourteenth Amendment guarantee of equal protection of the law and wonder how the tacked on and inconsistent doctrines of federal Indian law can ever allow the American Revolution to grow into the terms of its promise.

Are those still fighting the Indian wars and those still fighting the Civil War just lunatic fringes refusing to turn loose of lost causes? Maybe and maybe not. The differences go much deeper than tactics.

There’s nothing fringe about the Civil War still being central to a very powerful political tendency in the U.S. The Confederacy lost the war but won the peace by propagating the nonsense that the Civil War was not about slavery but about “state’s rights.”

We know it’s nonsense because the South was perfectly willing to hammer state’s rights when that was the best way to protect slavery, advocating, for example, federal laws against producing anti-slavery literature and banning it from interstate commerce.

We know it’s nonsense by reading the secession resolutions. Most of the states were not shy about stating why they went to war.

The Confederacy beat back the first attempt at Reconstruction, helped by a Democratic Supreme Court that declared the laws passed to enforce the 13th, 14th, and 15th amendments unconstitutional.

The Civil Rights Movement was the second coming of Reconstruction.

The Civil Rights Movement was the second coming of Reconstruction, this time aimed at the Jim Crow laws. When LBJ signed the 1964 Civil Rights Act and the Voting Rights Act, the Confederate sympathizers (known as Dixiecrats) decamped the Democratic party of LBJ to become Republicans. They did not disappear.

Bundy had a regular parade of former and current Republican elected officials supporting his armed standoff. The 10th Amendment argument is as mainstream as losing ideas get. The industrial strength 10th Amendment argument ignores 200 years of law explaining the words “necessary and proper,” but it remains mainstream enough that it is not the electoral kiss of death.

Still, the Civil War is over.

The 10th Amendment argument may be as mainstream as losing ideas get, but it’s the merger with the Second Amendment that puts militias on the fringe. Not just the Second Amendment but the insurrection theory of what it means.

The Constitution protects many ways to disagree short of destroying the nation.

The idea that the Constitution was drafted contemplating it’s own violent demise is even sillier than the idea that a state could withdraw from the nation in a disagreement over policy. The document protects many ways to disagree short of destroying the created nation.

The Civil War is not going to be refought and the advocates of a different outcome are not going to get the votes to have their way with amendments under Article Five. The Constitution is here to stay.

Of course, the Constitution does not apply to Indians. It’s a created government under which we had no rights. We did not assent to it then or at any other time. Even now, the Constitution has no force on Indian land and the Supreme Court has no power to review decisions of tribal courts.

The American Indian Movement was our fringe, engaging in actions better than which they ought to have known but at least they were doing something and then when the government counterattack hit them they had to be defended  Hell, I helped defend them and I knew at the time they were nuts.  There was no choice.

As to the “diehards among a defeated people” analysis, that’s a real cause of the body count on the rezes.  Throw people into a pit of hopelessness and despair and they kill themselves and each other.

There’s no divide over what happened to us.  The divide is over what can be done, if anything.  It doesn’t really matter whether it’s a losing cause.  The odds are what they are, but we have no choice just like I had no choice but to defend AIM.

We can win and the contemporary
Confederates can’t.

We can win — however unlikely it is — and the contemporary Confederates can’t. We have assets they lack, and those assets don’t come in .223 caliber. One of the primary assets is that we have no choice when our peoplehood is on the line. Assimilation in the pejorative sense is giving up that asset, the necessity to resist.

The mainstream Civil Rights Movement passed us by. It’s as if, with AIM, we skipped SNCC and CORE and went directly to the Black Panther Party, with all the inherent weakness that had Panthers and AIMsters killing each other.

The armed struggle folks were sitting ducks for agents provocateurs and the fate of such organizations was — as John Trudell said of AIM — to start out to serve the community and end up as criminal defense committees.

We never fit in a movement about the right to integrate because our goals are tied to a right to segregate, to exist as separate peoples on what is left of our land. Because the Civil Rights Movement goals never fit with ours, and because most reservations are out of sight, out of mind, and off the media radar, we never picked up militant nonviolent tactics as a pan-tribal commitment.

Because the tribal differences that prevented long term effectiveness in the shooting part of the Indian wars are still with us, we’ve never stood united when unity was a minimum requirement, necessary but not sufficient.

Are the Standing Rock Sioux about to turn that around? So far, they have been militant and nonviolent. So far, they are attracting support from other tribes far and wide.

Those of us who want to turn away from hopelessness and despair will support the Standing Rock Sioux any way we can. We have no choice.

The Standing Rock Sioux, to maintain their peoplehood, must protect their treaty lands and their water supply. They have no choice.

Indians have improved their tactics, improved their unity, and the whole world is watching if not paying attention. Is there a chance of turning around over 500 years of ethnic cleansing?

The chances are at least as good as they were for turning around slavery and Jim Crow. Our best chance requires making allies of those people who do not want to be tagged with responsibility for the ethnic cleansing of North America because it happened before they were born.

Some settlers — the majority of them — never owned slaves. All settlers benefitted from the theft of Indian land and resources. Those who do not want to get their hands dirty should understand that it’s better to do the right thing late than never.

The Standing Rock Sioux are trying to assert control over a tiny sliver of their treaty lands in a manner that the settlers take for granted when it’s their property and their drinking water.

This fight could be styled as about climate change or fracking but it’s really about settler descendants escaping moral culpability for wrongs that have directly benefited them.

Should white people support the Standing Rock Sioux? Those who want to claim innocence for the evils that resulted in the original occupants of this continent confined to concentration camps with inadequate resources, innocence for the unemployment rates, the alcoholism rates, the homicide rates and the suicide rates — if these things are not what you intended, this is your chance to speak up. You have no choice.

Read more articles by Steve Russell on The Rag Blog.

[Steve Russell lives in Sun City, Texas, near Austin. He is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. Russell, who belongs to the Cherokee Nation of Oklahoma, is also a columnist for Indian Country Today Media Network. Steve was an activist in Austin in the sixties and seventies, and wrote for Austin’s underground paper, The Rag. He can be reached at ]

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4 Responses to Steve Russell :
Two wars for the American West

  1. I was about to write something really long. It doesn’t translate into words easily or maybe at all.

    I will help in any way I can, but I’m disabled, broke and it seems to be worse each day. Find some use for my talents, let me do as I can and I’ll do it. There’s bound to be something.

    It is as you said, the watsitsu have to be convinced. Their lives are at stake as well. Maybe in the imnipi I can get the right words to write. The fellowship of the kolas kept my soul alive in the Iron Box, and it will bring me to the right path. It seems sometimes that the “freedom” of living in town has it’s own chains.

  2. Ah, I saw your bio, don’t know how that slipped by. So you are also rooted in the Tsa la gi O Ta Li. My grandmother was born in Taliquah, some time during or around the Civil War, her brother was enlisted in the Confederate army. He took a yankee Minie ball upside the head, tore off a chunk of skull, at the end of the war or close enough, the doctor said “Nation, that wound will kill you.” and sure enough 80 years later it did. He fought well, he fought bravely, but he fought for the wrong cause.

    Let me know what you think I can do. I can’t redeem Uncle Clay or the rest of the Confederacy. That’s them. The rest of the Nation, now, can be what we were born to be.

    Honor the good the elders did, no apology for the wrong they did, like fighting for Andrew Jackson. The sorry bastard was ripping them off, selling Tennessee and Alabama while they were still fighting his wars. A massive piss-off. The bad can be turned back to good. Every road has two directions.

    Which is my intent.

  3. Extremist2TheDHS says:

    You may feel that the wars are over. But there has been a new record for firearms sales every year since 2004. And its not because there are a lot more hunters. Its because there are many people who have come to realize that a gun is meant primarily to “fight the tyranny of government”.

    I once had a SJW tell me how stupid that comment was since those guns were no match for the US Military. And he was partially right. They are no match for the military. But then again the military will splinter if ever directed against the US population. The military will fight the military. The weapons individuals own are meant to convince local and sate and federal officials to watch their overreach since they would be the targets of any activity that would arise from such overreach.

    – Extremist2TheDHS

  4. Louis says:

    Extremist is a bad broken record, the same deadheaded nonsense over and over again. Gotta admit though, she’s persistent.

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