Alex Hamer
Standing Rock Sioux Chairman David Archambault II stands before protesters against the Dakota Access pipeline outside U.S. District Court in Washington D.C. after a hearing on the tribe's lawsuit contesting the project's approval.

Confronting the Feds: Armed Ranchers and Peaceful Native Water Protectors

Steve Russell

Settlement of the western U.S. was a government project, subsidized 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 is more than ironic, then, when beneficiaries of those settlement policies now see the very same government as intrusive and tyrannical. 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 contrast between how ornery, misguided white guys with guns are treated as opposed to Indians peaceably protecting their ancestral land from degradation is also nicely laid out by the Marxist publication, The Jacobin.

Federal intrusion, real or imagined, is a bit of a modern Rorschach test for the half-informed modern mind. A review is in order.

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. 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 the 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 dispossessed former inhabitants).

Ranching, like farming and mining and clearing the land of its rightful inhabitants, was subsidized by the government. Until 1934, when the Taylor Grazing Act changed the rules, federal land was available to graze livestock without charge. 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 they take for not only a birthright but also a constitutional principle. Their constitutional ideas proceed on two fronts.

First, they embrace the Tenth Amendment principle that the federal government is one of enumerated powers. Since there is no enumerated power to maintain and manage an inventory of public lands, they maintain those lands 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—yet some ranchers in the American west find tyranny in grazing fees.

Failure to pay grazing fees is not a crime, so the government relies on the common legal rule that one who provides necessary food for an animal has a lien on the animal. To deal with deadbeat ranchers, the BLM hires cowboys to round up the livestock being grazed on public lands and sells the animals 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.

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 when Shoshone elders Carrie and Mary Dann met the same issue with peaceful civil disobedience.

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.

The Dann sisters 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, armed “patriots” of the militia movement invoked Second 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 grazing fees were not worth anybody’s life. The feds 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 when Cliven Bundy’s sons Ammon and Ryan led an armed occupation of the Malheur Wildlife Refuge in Oregon. Cliven Bundy announced by YouTube video that the federal government “has no jurisdiction or authority within the state of Oregon.”

The Bundys didn’t know or didn’t care that the Malheur Wildlife Refuge was formerly the Malheur Indian Reservation, established by order of President U.S. Grant for the Northern Paiute. Today, the Burns Paiute Reservation occupies a tiny part of what used to be the Malheur Reservation, and the Paiute tribal government has reached a modus vivendi with the park rangers at Malheur to protect Paiute sacred sites and allow ceremonies. Should the government close the wildlife refuge, possession does not revert to Oregon, but to the Paiutes.

Even after he had notice he was occupying Indian land, Ammon Bundy pleaded on YouTube for reinforcements 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.

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 against federal officers back in 2014.

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 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 Camp.

The Indian wars continue as tribal peoples work to defend what little land and resources they have left, but they offer no violence to BLM employees, who inherited the historical injustice rather than causing it.

The descendants of settlers who could not have become ranchers without massive federal subsidies have now convinced themselves that the federal authority to set them up in business does not extend to charging them grazing fees, and over that they threaten to kill BLM employees and their contract cowboys.

The government subsidies for settlement of the west were premised on the faith that white settlers represented civilization and spreading that civilization justified encroachment on Indian treaty lands before the ink was dry on the treaties.

Over 150 years later, we can see how that worked out as the Standing Rock Sioux put their bodies in the way of a project across treaty land that threatens the water everybody drinks. The Indians have put down their weapons but they refuse to submit quietly to this latest outrage—while some of the settlers are prepared to shoot federal employees over collection of grazing fees.

In an interview with ICTMN, Standing Rock Chairman Archambault observed how, “Tribes across this nation are continually paying the costs for the benefits or gains of others.” He then related how the pipeline route was relocated away from Bismarck when the people there expressed concern for their drinking water.

He went on to describe the jobs and energy independence said to be good reasons for the pipeline:

All of that is good as long as they don’t reap these benefits at our cost, but tribes across the nation see all the time, over and over, our lands reduced, our lands are inundated with floodwaters, and there’s no concern for tribes. This is another example of that.

Chairman Archambault then reflected:

It may seem hopeless sometimes, but it’s not. There’s a way to live life in a good way . . . without violence, and bring back our prayers and our peace . . . It’s important to know and understand that we have to remain a proud nation. There are a lot of wrongs that are done to us, and all those wrongs are never going to get an apology. But we have to move forward, and we have to forgive them.

Explain once more, please, who represents civilization?

You need to be logged in in order to post comments
Please use the log in option at the bottom of this page



Robert Riversong's picture
Robert Riversong
Submitted by Robert Riversong on
For the complete story of the Bundy Boys takeover of Malheur and its cultural, political and historical context, including a day-by-day timeline, a second-by-second timeline of the shooting, and a spreadsheet of all federal indictments, Google: "Range War Redux – Bundy Boys In Oregon". For the philosophical (and financial) sources of the new Range Wars and associated movements, Google: "The New Anti-Federalists: The Wellspring of the Bundy Sagebrush Insurrection".