Malheur: Armed Invasion of Indian Lands

Peter d'Errico

Armed white men seizing the headquarters of Malheur National Wildlife Refuge in Oregon on January 2, 2016, were repeating a history longer than anyone has yet noted.

The occupation of Malheur connects to the 15th century Papal Bulls sanctioning "Christian Discovery." An historical line from Christian Discovery runs through colonial invasion of the New World, continues across the continent in the name of United States Manifest Destiny, and culminates in the seizure of all Indian lands as "public lands" (subject to "reservations" held in "trust" for the displaced Indians).

The Malheur invaders say they want to put control of public lands in the hands of ranchers and local governments. They call these lands "ours." But the Malheur occupation echoes earlier invasions of the same lands, whereby the original inhabitants—the Northern Paiute—were displaced.

The Burns Paiute Reservation—about 13,000 acres—constitutes the last vestige of Indian control of the region. Their ancestral lands included over 52 thousand square miles—more than 33 million acres.

In 1872, President Ulysses S. Grant set aside Malheur Indian Reservation for the Northern Paiute and "all the roving and straggling bands in Eastern and Southeastern Oregon, which can be induced to settle there." That lasted only seven years. It was terminated in 1879, after the so-called Bannock War.

As Wikipedia puts it, the Malheur Indian Reservation was terminated after "ranchers and settlers had started to graze their herds on the best meadowlands of the Malheur Indian Reservation, and the U.S. Army had been reluctant to remove the trespassers."

Reluctance marks U.S. law enforcement again. The New York Times reported on January 4, "no effort was made to keep the occupiers from coming and going as they pleased." The Guardian reported on January 5 that federal authorities were considering plans to cut off power and place the Refuge under siege.

Whether or not the occupiers are ousted, they insist the issue behind the occupation will remain: Nevada rancher Cliven Bundy, father of the occupation leaders, told the Guardian, "They went up there because we have an abusive federal system that is out of control. We’re there in support of ranching families who have been harassed by the federal government for years out here."

Bundy was at the heart of a similar standoff in 2014, when he chased away federal Bureau of Land Management (BLM) rangers who, acting on a court order, tried to confiscate 500 cattle he had been grazing without a permit since 1993. The government backed down and called off the confiscation effort.

Western Shoshone National Council Chief Raymond Yowell had no such luck in 2002 when he tried to prevent armed BLM rangers from confiscating his cattle. Chief Yowell had quit paying grazing fees in 1984, after the BLM could not produce any proof that the lands in question were "public" rather than Western Shoshone.

After auctioning Yowell's cattle, the BLM sent him a bill for unpaid grazing fees and fines. When Yowell told them he was retired and his cattle were his only income, the BLM garnished his social security check.

In 2011, Yowell undertook a pro se lawsuit against the BLM. When the district court judge enjoined BLM from enforcing the alleged grazing debt, the government appealed, and, in 2013, the 9th Circuit Court of Appeals reversed the district court.

The 9th Circuit cited the 1985 U.S. Supreme Court decision, U.S. v. Dann, holding, "The Western Shoshone Tribe's aboriginal title to the lands at issue in this case have long been settled. The United States now holds title to, and BLM now manages, those lands."

The Dann case was decided on the basis of the federal Indian law "trust" doctrine. In a decision rivaling Alice in Wonderland, the Supreme Court held that the Western Shoshone no longer owned their lands because the U.S. government had taken the lands and had paid itself $26 million "as trustee for the Tribe as the beneficiary." As precedent for the Dann decision, the Supreme Court cited two of the three foundational Christian Discovery cases: Johnson v. McIntosh and Cherokee Nation v. Georgia.

The Malheur National Wildlife Refuge was named after Malheur Lake and the Malheur River, which got its name from early 19th century French trappers who said beaver furs they had cached there were stolen by Indians. The alleged theft was a "malheur"—a "misfortune"—to the French.

We don't have a record of what the cached beaver furs were to the Indians. A windfall. Reparations. Payment for extraction of resources. What we do know is the river and the refuge are within the ancestral home of the Northern Paiute.

The initial 1872 Malheur "reservation" was as much an internment and concentration camp as anything else, getting the Indians out of the way of trade routes and white people.

The misfortune of the Paiute was to be in the way of armed and dangerous invaders intent on taking Indian lands for their own uses. The Americans invoked "Manifest Destiny" to support their policy of territorial expansion.

As Robert Miller explained in his 2006 book, "Native America, Discovered and Conquered," the notion of Manifest Destiny consisted of three elements: the "special virtue" of the American people and their institutions; America's mission to "redeem and remake" the world; and a "divine destiny" under God's direction. Manifest Destiny, in turn, was rooted in the founding concept of Christian Discovery.

Miller cited a letter from the Oregon Provisional Emigration Society in an 1839 report to the U.S. Congress by the House Foreign Affairs Committee. The Society outlined its plan "to spread civilization and Christianity among the Indians" in the "savage territory." The House distributed 10,000 copies of the Report, and focused public discussion on the doctrine of Christian Discovery as the basis for extinguishing Indian title.

Once we understand the bigger picture and the longer history, we see that the 2016 invasion of Malheur echoes the invasion of the land in the 19th century, which itself echoes the invasion of the continent in the 15th century: a single, though complex, chain of events and thinking, all of it devoted to a way of life called "civilization and Christianity," all of it powered by lands taken from Indigenous Peoples.

So here we are today: An armed group of white men wants to "reclaim public land for the people." Many commentators express bewilderment. One wrote, "When land is held by the federal government… that land belongs to us all. You cannot 'reclaim' territory for the 'people' if they already own it."

Another commentator, referring to the white ranchers' version of history as "mythic," called for attention to "the complexities of the past." She argued for "the hard work of collaboration [to bring] together the local community, tribes, conservation groups and the state and federal governments" in ways that "respect the region’s history while pointing the way to a sustainable future."

The Burns Paiute have been collaborating for a sustainable future, despite the fact of their marginalization at the hands of invaders. In a press conference on January 6, Charlotte Rodrique, the Burns Tribal Council Chair, said they have never ceded their rights to the land: "We as a tribe view that this is still our land no matter who's living on it." She described the relationship with the federal Refuge as "a good working relationship."

In a passionate statement, Burns Paiute Tribal Council member Jarvis Kennedy asked "a question for the world": "What if it was a bunch of Natives that went out there and overtook that or any federal lands? What would the outcome be? Think about that." He added, "We survived without them before and we'll survive without them when they're gone."

America has a long way to go to get to anything sustainable. It won't get there until it abandons its claims of exceptionalism and superiority.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.

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