In violation of whose laws? Indigenous blockades, Indigenous land, and settler charges of trespass

This is a talk I gave at the University of Lethbridge campus in March 2019. In light of recent events and in solidarity at the continued fight for sovereignty by the Wet’suwet’en, I thought I would post it to this blog, leaving the framing of it as a talk – rather than essay – unchanged.

**Just a note that because I’m talking about US and Canada, I will be flitting between Indigenous and Indian in my terminology use. I also want to acknowledge that the land this university sits on is the past, present, and future, territory of the Niitsitapi (Blackfoot Confederacy). And I hope my talk today shows why there needs to be more than just words when we acknowledge that we are present on Indigenous land. I should also point out that I am not Indigenous and I am not attempting to speak FOR Indigenous people. Rather I am speaking today from a position of solidarity in the fight against the issues I am about to talk about. As a settler, if I misconstrue any Indigenous positionality, I apologize in advance.**

In order to put Indigenous’ resistance’ or ‘civil disobedience’ into its proper context, we must first seek to understand settler-colonialism. Settler-colonialism is both a structure and a process. It is a structure that endures Indigenous existence, even as it goes through the process of pushing for the elimination of Indigenous existence.

Today, I want to argue the conflicting issues of federal settler-colonial law versus Indigenous law when protests and blockades occur on Indigenous territories and the politics of resistance within those protests. Both Canada and the United States are settler-colonial states that proudly declare their nation-to-nation relationships with the Indigenous nations within their borders. Both nations also self-validate their sovereignty through claiming inherited rights of discovery and the treaty rhetoric of ceded Indigenous land and settler-Indigenous trust relationships established. Indeed, it is the very existence of the treaties that predicate the nation-to-nation rhetoric.

However, if a settler nation legally defines its existence through recognition of ceded Indigenous land acquired through treaty, it also has a moral and legal obligation to honour unceded Indigenous territory as falling outside of its domestic jurisdiction. And in a genuine nation-to-nation relationship, each nation respect and honour the inherent rights of the other to impose its own legal systems and jurisdictions within its territory. Unfortunately, settler-colonialism with its desire to eliminate Indigenous peoples, and a nation-to-nation relationship with its stated aim of working equitably with Indigenous peoples, are inherently oppositional frameworks.

In their 2015 campaign pledge, Justin Trudeau’s Liberal Party promised that
” It is time for Canada to have a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition, rights, respect, co-operation, and partnership… As part of this renewed relationship, we will do more to make sure that the voices of Indigenous Peoples are heard in Ottawa.”

Recognition, rights, respect, co-operation, and partnership are values which denote equality and equity. In a nation-to nation relationship recognition implies recognition and acceptance of equal sovereignty. In a nation-to nation relationship rights implies recognition of the rights to uphold that sovereignty through national self-determination. In a nation-to nation relationship respect implies the duty to respect that assertion of self-determination if it does not threaten your own national safety. In a nation-to nation relationship co-operation implies partnership. In a nation-to nation relationship partnership implies equal consideration of both viewpoints and a commitment to work together for solutions equally amenable to both sides. In reality, Trudeau’s Liberal Party has failed in every respect of these goals, unless the Indigenous voices being heard in Ottawa agree with his government’s plans, primarily because of that government’s commitment to maintaining a settler-colonial status quo, which is best exemplified by the assertion that UNDRIP is an aspirational document that is unworkable in Canadian law.

In recent years, one of the key methods for settler-colonial law enforcement agencies controlling Indigenous dissent has been to charge Indigenous land and water protectors with illegal trespass when they have set up blockades against pipeline extensions though Indigenous territories. While there are too many moments in recent US and Canadian history that expose the fallacy of the nation-to-nation rhetoric, it is– at Standing Rock, and at Unist’ot’en in the most immediate moments – that the rhetoric of trespass fundamentally fails. In both of these instances, Indigenous water and land defenders were accused of trespassing by US and Canadian authorities respectively, while they were camped on unceded Indigenous land.

At Standing Rock, and in Unist’ot’en, each of the Indigenous activists/community members, and allies, charged with trespass were located on unceded Indigenous territory. Taking the guidelines of the UNDRIP into consideration alongside the stated dedication to nation-to-nation relationships, this begs the question of whose laws are being broken, who is actually the trespasser, and how the discourse of civil disobedience is being controlled? Should these protests and blockades even be classed as civil disobedience? Further it opens more questions over how we understand state interventions into Indigenous territorial sovereignties and the assumed authority of settler laws in Indigenous territories.

One of issues at stake here, but certainly not the only issue is that these settler assumptions of authority to invoke trespass undermine both the nation-to-nation relationship celebrated by the settler state, and the states’ avowed commitments to the UNDRIP guidelines. As such, we must revisit the language and narrative of protest and resistance when understanding Indigenous territorial sovereignties, legal systems, and national interests, in the face of settler nation-state interventions. Instead, Indigenous protest on Indigenous land should not be classified as civil disobedience but should instead be viewed through a prism of national and civil defense.

At Standing Rock peaceful blockades were met with domestic paramilitary force, wherein legitimized state violence was deployed so extremely that it dramatically overshadowed everyday, often normalized, state violence such as police harassment, judicial thirst for Indigenous prisoners, and the intellectual and cultural violence of casual racist interactions that is commonplace for Indigenous people within this settler-nation state.

Here, there is a long history of settler-state violence over land that cannot be ignored if the conflict is placed in its proper historical context and the dynamics of civil disobedience or national defense are to be considered. The land through which the Dakota Access pipeline (DAPL) now runs is Oceti Sakowen territory that was not ceded in either the 1851 or 1868 Treaties of Fort Laramie. It was these treaties which legitimized settlement in the region from the dominant society’s legal perspective, with the implicit understanding that the unceded territory was off-limits to settlement. The clause which retained this unceded territory, outside the strictly enforced limits of the Standing Rock reservation, maintained that is primary purpose was to perpetuate the hunting and fishing rights of the Oceti Sakowen on their usual and accustomed places. While the US Congress unilaterally declared an end to the treaty-making process in 1871, it mandated that all existing treaties were to be honored as legally binding contracts. Therefore, the land acknowledged by the US in 1868 as being unceded Oceti Sakowen territory still stands as unceded Indigenous territory, as recognized within both nation’s legal systems. This status has been argued by numerous Indigenous lawyers and activists before and since the pipeline was diverted from its original path north of Bismarck, North Dakota, to just outside the Standing Rock reservation.

The nature of governmental reaction to two moments of opposition to the same pipeline exposes, not just a failed commitment to honour the nation-to-nation relationship, but a dedication to environmental racism within the US system. When the original path north of Bismarck was revealed, the 95% Caucasian population voted the pipeline be rejected. Rather than fight the decision, Dakota Access appealed to the US for permission for an alternative route. The US Army Corps of Engineers dutifully obliged and rerouted the pipeline to just north of the Standing Rock reservation, in a location of much closer proximity to the reservation’s population’s water supply than the original pipeline had been to Bismarck’s water supply.

This was, however, not the Army Corps’ first intrusion upon Standing Rock citizen’s lives. In the 1940’s, the Army Corps of Engineers unilaterally appropriated – in the face of stark opposition from community members and tribal leaders – 700 miles of tribal lands and created a series of dams along the Missouri river. The Pick Sloan dam project forcibly displaced 1000 Sioux families and created Lake Oahe, the reservoir under which the Dakota Access pipeline now carries oil, permission for which was granted by the Army Corps of Engineers, in a clear over-reach of its legal authority. In the process of creating the reservoir in 1948, the dam “destroyed more Indian land than any other public works project in America.”

Several camps were set up to blockade the path of the pipeline, the first of which was the Sacred Stone Camp on LoDonna Brave Bull Allard’s property, which the BIA later claimed was actually Army Corps land, raided, and arrested 73 protectors on charges that almost ubiquitously included trespass. The largest camp, the Oceti Oyate, which at its peak contained 10,000 Oceti Sakowen protectors and other Indigenous and non-Indigenous allies, was situated on Army Corps land, or rather the earlier mentioned unceded treaty lands. The primary objective of the camps was to delay construction of the camps while legal appeals to the pipeline were processed through the US legal system.

The settler-nation’s reaction to the peaceful protests were stunning, with the inaction of the Obama Administration’s “watching brief” a stark contrast to the paramilitary violence meted out by state law enforcement. While the president promised to closely monitor the unfolding events, he essentially saw out the last days of his administration as a silent witness to human rights abuses carried out by state law enforcement, including ‘borrowed’ personnel from other states.

While Obama exercised his “watching brief,” the state of North Dakota, with the complicit support of the United States, systemically violated Articles 7, 11, 18, 26, 29, 32, and 37, which collectively proclaim Indigenous rights to protection from violence, protection of historical sites, participation in “decision-making in matters affecting their rights,” protection of lands and territories, conservation and protection of the environment, “free and informed consent, and the observance of treaty rights.”

These abuses included historical and sacred areas being bulldozed by DAPL employees, water cannons being fired at water protectors in below-freezing temperatures, sound cannons used to cause internal damage to water protectors, strip searches, protectors being locked in animal cages, attack dogs being set on protectors and journalists, social media blackouts and signal outages, and in scenes reminiscent of the Wounded Knee siege of 1973, armed agitators infiltrated the protestors as a ruse for the justification of violent suppression of the blockades. The tragic paradox of the ‘rule of law’ mantra the state used to justify its actions, is that treaties between Indigenous nations and the US are constitutionally enshrined as the Supreme Law of the Land. It is this law which should have been enforced by the police who took so much violent delight in suppressing the Standing Rock Sioux’s treaty rights.

As a general framing, rather than nation specific, especially as I am not Indigenous and so cannot speak from a position of grounded normativity when I talk about this, Indigenous relationships to the land encompass much more than territory, resources, or property. And it’s important to note that these relationships differ from nation to nation. Some commonalities though do exist across Indigenous legal systems. Land is not static, but is a process. A process of relationships and education, culture and belief systems. Land is the law itself and intrinsic to culture and identity. In Indigenous knowledge and legal systems, Indigenous rights and the land are inextricably entwined. As such, pipeline expansions are not simply a matter of most convenient routing. And given how much land has been taken from Indigenous peoples in the US and Canada, and how little territory is officially recognized as still being theirs, it truly is astounding how it always seems to be vitally important that pipelines cross Indigenous lands. Unless you understand that the end game of settler-colonialism is still Indigenous erasure.

So, if we acknowledge the ultimate goal of settler-colonialism, and capitalist neo-liberalism wherein extractive corporations have more rights than Indigenous peoples on their own territories, it becomes increasingly clear that these blockades are not civil disobedience but civil defense, and that every time the state arrests an Indigenous land or water protector on Indigenous land, and accuses them of trespass, the state is violating their relationships with the land and violating Indigenous legal systems. And I keep making the distinction of unceded land, but given the proliferation of land acknowledgements in recent years, it would seem a rather asinine accusation if an arrest of Indigenous environmental activists on any land included charges of trespass. And all of this is even without me talking about the causality between pipelines, man camps, and Missing and Murdered Indigenous Women, which would need a whole other conversation.

And the irony is that the US legal system recognizes the baselessness of these accusations of trespass. While multiple criminal prosecutions of water protectors followed the assaults upon the camps and worked their way through the settler court system and several jail sentences fallowed for some individual water protectors such as Red Fawn Fallis, the vast majority of trespass or inciting a riot charges were dropped without charge.

It’s also something of a great irony that it is in these “Courts of the Conqueror,” as Walter Echo Hawk labelled them, the permissions granted to DAPL by the Trump Administration in 2017 have been declared illegal. While this has not yet resulted in the pipeline being shut down, it has potential to do so, if proper environmental analysis is not now carried out by the Army Corps of Engineers. The same Army Corps of Engineers that laid claim to land that is not there to facilitate the false charges of trespass. The same courts also found that treaty rights had been violated. The ruling judge in a November 2018 hearing declared that “to remedy those violations, the Corps will have to reconsider those sections of its environmental analysis upon remand by the Court.” The ruling sits as an example of the actual rule of law being applied in a way that ‘law enforcement’ agencies suppressing the blockades failed to enact during the conflicts they instigated. In a separate November, 2018 filing, the Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe launched a fresh challenge against the Army Corps of Engineers and DAPL in regard to the process by which the Army Corps issued construction permits to DAPL. This case was opened in response to the Army Corps’ lack of compliance with a December 4, 2017 court decision in which the Corps and DAPL were ordered to work with the Standing Rock Sioux on several key pipeline safety measures. At this point, no decision has yet been rendered regarding that lawsuit.

And we are seeing the exact same cycle of events occurring right now in Unist’ot’en, with the Wet’suwet’en. In this instance it is a gas pipeline, rather than an oil pipeline, and the proposed route runs through the middle of the Wet’suwet’en Nation’s territory. Two checkpoints – the Unist’ot’en Camp and the Gidimt’en Checkpoint – were set up by hereditary leaders and other citizens to block the pipeline’s expansion. Besides their rights to recognition of territorial sovereignty, they are determined to protect the local watershed, as well as the animals, ecosystem, and communities in the area from the pollution and disruption that the pipelines and especially construction and potential leaks would cause. Multiple videos have been posted online of deliberate vandalism in the area by pipeline workers driving through traplines and deliberately disrupting hunting cycles as a way of attacking the camps and Wet’suwet’encitizens.

Rather than treaty, the Wet’suwet’encase is supported by the 1997 Delgamuukw Supreme Court of Canada ruling that the Wet’suwet’enhad never ceded title to 22,000 kilometres of territory. With Indigenous title, lies Indigenous law. Despite this formal recognition by the highest court in the Canadian system, in December 2017 the Supreme Court of British Columbia bestowed upon itself the authority to order the Gidimt’encamp removes its blockades and allow Coastal Gaslink workers into the territory to begin construction of the pipeline. When the land protectors refused, heavily armed and dressed RCMP units, clearly dressed for combat, stormed the camp, and made 14 arrests of Wet’suwet’encitizens on their own land, on charges connected to violation of the injunction, and therefore trespass. The counter-argument of the hereditary chiefs is that the RCMP trespassed on their territory when they stormed the barricades and made the arrests.

What is most problematic to the rhetoric of recognition of Indigenous title is further complicated by the Tsilhqot’in Nation’s successful 2014 Supreme Court of Canada decision included the caveat that when it comes to resource development, governments can infringe on Indigenous title to those lands “based on a compelling and substantial purpose and establish that they are consistent with the Crown’s fiduciary duty to the group.” In other words, despite having full title to their own territories, Indigenous groups are still subject to the whim of the Crown to decide what is in their best interest. And these whims invariably fall under the rubric of Canadian national interest, which is the common justification for pipeline expansion, which is clearly a bastardization of a nation-to-nation relationship, and ultimately, evidence of a commitment to the processes of settler-colonialism.

So then, if Canadian and US national interests consistently align with the exploitation and disruption of the few acres of Indigenous land still remaining in their own hands, is a duty to resist really civil disobedience? Does citizenship of Canada and US supersede Indigenous citizenship in their original communities? I would argue that Indigenous duty to resist is really a right to defend. That Indigenous citizenship, which carries the gift of original occupancy and the knowledge of, and relationship with, the land that this gift carries, far outweighs the imposed sanctions and restrictions against Indigeneity that membership of the settler nation invokes. –Settler legal rhetoric of trespass is a betrayal of nation to nation relationship and exposes the hypocrisy of reconciliation. We can see this when National parks are usually off limits to pipelines but Indigenous territories are not. The US and Canada are still determined to take the few remnants of land still left in Indigenous hands, with the deliberate choice of routes exposing the truth of environmental racism so systemically embedded in settler-Indigenous relations, and the refusal of settler states to properly recognize the sovereignty of unceded Indigenous territories.

Do Indigenous land protectors have the duty and right to fight these pipelines expansions? Yes. Should they do it alone? No.

Are their actions civil disobedience? Absolutely not.

They are the inherent – and never relinquished – rights of sovereign nations to protect their cultures, futures, and resist violation of their laws which are so embedded in the land. And we should remember these rights every time we utter a land acknowledgement.

Mauna Kea, the TMT Blockade, and the Mendacity of ACURA’s Statement

On July 15, Governor of Hawaii, David Ige, announced that construction of the TMT (Thirty Meter Telescope) would begin on Mauna Kea. On July 25, 2019 ACURA (The Association of Canadian Universities for Research in Astronomy) issued a formal statement on the TMT in reaction to the blockade imposed by Kanaka Maoli to stop the telescope’s construction. As of the time of writing, this statement stands as the formal statement for all twenty Canadian Universities attached to ACURA, with the exception of two member universities. Two days prior, the University of Toronto issued a statement rejecting the “use of police “force” in furthering its research objectives,” but stopped short of calling for the project to be postponed. It did though, commit to “work to uphold those principles (of the TRC) as we engage with Indigenous communities beyond our borders as well as within them.” This statement was issued as a result of pressure from Indigenous faculty members such as Uahikea Maile, Eve Tuck, and others. On July 26, 2019, the Office of the President of UBC called for a 60 day moratorium on construction “to allow for fulsome consideration of other potential sites.”  At the time of writing, UBC is it the only ACURA member university to make such a call.

That ACURA’s statement is, at the time of writing, the de facto position of the remaining 18 member universities, including my own home institution of the University of Lethbridge, is highly problematic on many levels, not least of which is the damage it does to the perceptions of these institutions’ avowed commitments to the recommendation and principles of the TRC, UNDRIP, and their own indigenization projects.

The statement, which is clearly marked as “ACURA’s position” states that:

We respect the rights of everyone – both supporters and protesters – to express their opinions. Maunakea is special and the TMT project is committed to being good stewards on the mountain and inclusive of the Hawaiian community. Great care was taken to identify the best location for TMT out of respect for Maunakea’s rich ancestral history and the project has gone through ten years of community consultations, environmental assessments, and legal and regulatory approvals.  Significant investments have also been made to support educational opportunities for future generations of Hawaii residents.

ACURA shares the concern about the protests now taking place and has expressed to the TMT partners its desire to ensure the safety of all involved and to find a peaceful path forward that respects the wishes of Native Hawaiians.  To that end, we were encouraged by a statement issued by the Governor of Hawaii on July 23 in which he asked Hawaii County Mayor Harry Kim “to coordinate both county and state efforts to peacefully attempt to reach common ground with the protectors of Maunakea and the broader community,” adding that both the Governor and Mayor “understand that the issues underlying whatis taking place today are far deeper than TMT or Maunakea.  They are about righting the wrongs done to the Hawaiian people going back more than a century.”

As a partner in the Thirty Meter Telescope project (TMT) since its inception, the Association of Canadian Universities for Research in Astronomy (ACURA) and its members believe in the science behind the project.  We want the project to be a source of pride for Hawaiians and to progress in the spirit of respect and reconciliation.

While the language here directly commenting on the blockade is perfunctory at best, (and will be discussed in greater detail later), it cannot be read without carefully examining the preamble which precedes it. When read in the context of the preamble, the formal position of ACURA presumes a much more insidiously dismissive and dishonest statement of pacification and self-absolution that lacks any genuine commitment to the stated “spirit of respect and reconciliation.”

ACURA’s complete Statement on the TMT is divided into several sections. Those I consider the preamble are: Overview, Site Selection, Current Situation, before the actual statement contained in ACURA’S Position (which is shown above).

In ACURA’s Overview the association asserts its support for, and active participation of Canadian astronomers in, TMT, calling it a project of which Canadians can be “proud.” Presumably, this includes the Canadian astronomers and scientists who spoke out against the criminalization of Kanaka Maoli protectors of Manua Kea. ACURA clearly identifies the project as an international collaboration in which the federal government of Canada has invested $243.5 million. On face value, this seems to be a simple statement of support and clarification, but given the circumstances under which ACURA felt compelled to release the statement, it is incredibly tone deaf to open with this statement of unqualified support for TMT before addressing the issue at hand.

The Site Selection segment is the most mendacious part of the statement. Here, several assertions are made which are clearly untrue and easily researched. The argument put forward is that during the ten-year consultation process prior to construction:

• No groups or individuals challenged the contents or process of the Cultural Impact Statement. This is easily refutable, even by visiting the TMT’s own website and scrolling down to Unforeseen Circumstances.
• There was ‘later’ a contested case before the Hawaii Circuit Court, “and so on.”

There are many problematic aspects of this section. Firstly, it seeks to minimize the extent of opposition to TMT and create the impression that the Current Situation is a new, somewhat opportunistic, situation caused by a radical minority. On TMT’s own website, it is acknowledged that the 2014 ground-breaking ceremony at the base of Maua Kea was “disrupted by protestors,” and that the 2016-2018 court proceedings over the permit for TMT faced opposition before the Hawaiian Supreme Court. It is inconceivable that ACURA, and its member active Canadian astronomers were unaware of these protests against TMT. To allow this statement to go unchallenged is to allow ACURA to lie to the public on behalf of the member Canadian universities. The closing addition of “and so on” adds to the sense of this being a viewed as a minor irrelevance of which ACURA wishes to wash its hands.

In the Current Situation, ACURA foregrounds that ‘all legal obligations” were met. It bears reminding that these legal obligations are to the State of Hawai’i, and not Kanaka Maoli, whose land Mauna Kea is on, and whose sacred mountain Mauna Kea is. It also positions any opposition or blockade of the construction as inherently illegal. The mendacity is supported by tactics of distraction in this section, again with the clear intention of painting those protectors currently blocking construction as a radical minority. As with the previous section there are unsupported, or easily disproven claims asserted here also:

• The majority of Native Hawaiians support TMT. This claim is based upon questionable polls in which self-identification was the sole arbiter of racial or cultural identity, in an exact replica of the tactics used by the owners of the Washington Redskins to ‘prove” Indigenous support for their racist name. This is also a tacit used generally in the majority society to render opposition irrelevant, while solidifying the idea that Indigenous voices are monolithic. The unspoken assertion is that if the majority are in support then this vocal minority are a radical, but ultimately irrelevant, minority not to be taken seriously. Also, that a “majority” can be discerned from a poll of 800 people, of whom only 10% identified as Native Hawaiian. is highly questionable mathematics.
• The inference that the protests are a new phenomenon (already disproven) and simply a matter of a “difference of opinion” which the TMT’ board “respects.”
• These protestors are “now” engaged in an international campaign to “stir up” opposition.
• The use (with enough room for claims of plausible deniability of intent) of such coded terminology as “never support” or “stir up” to suggest the unreasonably aggressive actions clearly display a lack for respect for the ‘opinions of the ‘protestors.’

As before, the framing of the ‘protests’ or opposition as ‘new,’ is a clear lie. There has been international social media support for the Kanaka Maoli opposition to TMT construction; including a “We Are Mauna Kea” campaign including public figures such as Jason Momoa; since at least 2015. This opposition is neither new, nor minor.

The assertion that this is simply a difference of opinion, renders the spiritual, cultural, and political reasons why Kanaka Maoli wish to block construction. It also highlights the level of commitment ACURA has to the Cultural consultations it claimed that the TMT project had undertaken. Plenty of community leaders and Kanaka Maoli scholars have spoken out against Mauna Kea enough times for the framing of the protests as being nothing more significant than a “difference of opinion” to constitute a deliberate insult.

This brings me back to ACURA’s Position. Before the segment italicized above (the italicization is ACURA’s own), ACURA asserts that the “protests are an internal Hawaiian matter and ACURA does not plan to comment on internal Hawaiian politics.” It also repeats the claim that the majority of Native Hawaiians support TMT. As stated earlier, this claim is easily refutable and deliberately asserted to undermine the validity of the protests.

This clearly situates the blockade and surrounding issues as an internal, and thus minor, issue that can, and will, be resolved solely by the State of Hawai’i. As elsewhere, the mendacity is clear, the deflection obvious, and the disavowal of responsibility breathtaking. In no particular order, the fallacy of this statement can be easily refuted:

• This sentence is part of a formal statement in direct reaction to the ‘protests.’
• The formal statement has already included several key moments of commentary on the protests and placed them as oppositional to the legal processes that TMT’s board undertook.
• The formal statement openly frames the TMT project as an international collaboration including multi-million dollar investment from the Canadian government and including the active participation of Canadian astronomers.
• The majority of protestors are Indigenous. Indigenous relations in the United States are not internal state affairs unless explicitly mandated. Formal relationships with Native Hawaiian issues are directed through the United States Department of the Interior, under the Office of Native Hawaiian relations.
• The language and articles of United Nations Declaration on the Rights of Indigenous peoples clearly apply here, which situates this as an international, rather than internal/domestic, issue.

Perhaps, the statement reflects an opinion among ACURA universities that Indigenous Peoples in Canada are domestic populations, rather than sovereign nations, but I do not plan to comment on that…

So, to the statement itself. ACURA opens with a claim to respects the rights of both supporters and protestors, despite the clear disrespect shown to the ‘protestors’ in the preceding preamble. It follows by repeating the legal processes undertaken in the lead up to the construction of TMT while identifying Mauna Kea as special and asserting the project’s commitment to good stewardship, and respect for Mauna Kea’s “rich ancestral history.” This is all while disrespecting those Kanaka Maoli descendants of Mauna Kea who oppose the TMT construction. “Special” is also a rather poor substitute for “Sacred.” Kanaka Maoli scholars, such as Noelani Goodyear-Ka’öpua, Uahikea Maile, Iokepa Casumbal-Salazar,  Williamson B.C Chang –  and more – have spoken and written on this in more knowledgeable ways than I will ever be able.

The statement includes a note about ACURA “concerns” for the protest and a desire for a path forward that “respects the wishes of Native Hawaiians.” Given opening assertion of support for TMT, and the repeated assertion that the majority of Native Hawaiians ‘support’ TMT, it is clear what this path forward looks like.

The statement continues by championing a separate July 23rd, statement made by the Governor of Hawai’i, in which he expressed “understand(ing) that the issues underlying whatis taking place today are far deeper than TMT or Maunakea.  They are about righting the wrongs done to the Hawaiian people going back more than a century.” This is a spectacularly tone-deaf quote to include in multiple ways. These wrongs include (and this is a very short snapshot):

• The 19^th century illegal coup against the Hawaiian throne by US planters -supported by the US Marines.
• The subsequent illegalization of Kanaka Maoli language, culture, history and confiscation of land.
• The illegal annexation of the Kingdom of Hawai’i into a US territory.
• The subsequent imposition of US law over a sovereign people. This includes the very legal system that ACURA is using to support its claims for the validity and legality for the construction of TMT on Mauna Kea.
• Statehood

Therefore, through the simple act of including this statement from Governor Ige, ACURA is acknowledging that this situation is much more than an “internal Hawaiian matter.”

The statement ends with ACURA asserting its position as a partner in TMT, which clearly renders its previous positioning of separation from the issues around construction as false. It also asserts its belief in the science behind the project. None of the opposition to the construction on Mauna Kea is in opposition to the science. The inference that it is another insult to contemporary Kanaka Maoli, descendants and members of one of the most accomplished and sophisticated sea-faring cultures in world history.

The statement ends with a desire to “progress in the spirit of respect and reconciliation.” Unfortunately, there is little in the statement or its preamble to suggest that this desire is sincere.

Within this statement and its preamble ACURA affirms its support for and commits itself as a partner to the TMT project. It positions the protests as a minor difference of opinion, casts the protectors of Mauna Kea as troublemakers: a small, insignificant group of people determined to reject the majority view of their community/ies and determined to stir up international opposition. It ignores and belittles the reasons for the opposition to the construction of TMT, and pays lip service to respecting those voices of opposition. It acknowledges that the protests are peaceful, but fails to even mention the violent state responses to this peaceful opposition. It falls short of the University of Toronto’s rejection of police violence, and of the University of British Columbia’s call for a moratorium while alternative sites are considered. As a document in total, it is a litany of lies, insults, and misdirections, that are the common tactics of the public face of settler-colonial dispossession of Indigenous peoples.

The remaining 18-member Canadian universities of ACURA, including my own home institution of the University of Lethbridge, would do well to consider their decision to stand behind ACURA’s formal position. If they do not separate themselves from such a mendacious statement of self-interest at the expense of Indigenous sovereignty and spiritual autonomy, they invite questions about the veracity of institutional commitments to Indigenization on their campuses. They also risk alienating Indigenous students and community members who support the actions of Kanaka Maoli in protecting their sacred land.

If you read this, please ask your university, whether connected to ACURA or not, but especially those 18 member universities, to take a firmer stand in support of the sovereign rights of Kanaka Maoli to say NO without being criminalized by the settler-state.

 

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Teaching Treaty History through Treaty Making

I should start by stating that I am aware I’m probably not the first to use such an assignment technique, and that there are undoubtedly more refined versions of this assignment out there, but I do feel that the success of my treaty assignment this semester does warrant some discussion.

It was also not a project I intended to have the students work on when the semester began, and group work was noted on the syllabus in the more traditional format of research project and class presentation. It was during one of you weekly dissections of the numbered treaties – Treaty 4, if I recall correctly – as I was listening to the students trying to grapple the task of reading beyond the words, that the idea of asking them to create a treaty bubbled up from my subconscious.

It was watching the students, both Indigenous and non-Indigenous, try to make themselves understood across the classroom; filtering their lived experiences into how the treaty informed their worldviews, (or how their worldviews informed their understanding of the treaty) and attempting to discern intent, and read what was not written in the treaties rather than taking them at face value; that it became obvious that they needed a way to get their hands dirty to truly understand what makes a treaty happen. Hopefully in the process, treaties would cease to be historical relics to be used in theoretical discussions, and a greater appreciation for their immediacy and legacy in the contemporary world would surface.

So I threw out the groups research presentation projects and set them the task of agreeing an inter-group treaty by the end of the semester. The parameters of the assignment itself were pretty simple, once I managed to find the software to create a (pretty basic) fantasy map.

The Treaty Assignment Map was an important component because I did not want to ask them to negotiate an imaginary treaty using territories that legitimately already belonged to Indigenous nations. We were already discussing multiple documents of settler-state land theft with the need to add further insult to injury. Once the map was created, the groups were asked to privately claim territory, and create an identity – ranging from Indigenous nation to settler community – replete with resources, history, culture etc.

Once these identities and territories had been established, each group was asked to create their treaty negotiations framework – what type of treaty they wanted, what they were willing to negotiate, what protocols they wanted to follow and other such issues. They essentially had complete intellectual freedom to build their treaty discussions, with the understanding that there were not to simply recreate a numbered treaty.

Moving into the negotiations, several of the groups were a little too confident that they had everything under control, until the reality of negotiating with several other groups at the same time began to hit home. Conflicting sub-treaties were agreed, lies were promised as truths, details agreed orally never made it onto paper, maintaining consensus within the groups themselves became more difficult as competing offers and/or threats manifest themselves in negotiations, while concurrent negotiations using a variety of negotiators often resulted in confusion as to who had agreed what, with whom, and what terms. One group even managed to sign a treaty with another group agreeing to help remove a third group from their territory while at the same time agreeing terms of kinship and intermarriage with the same group they had agreed to remove, essentially removing themselves in the process.

And by the end of the exercise, when in a scramble to produce an actual treaty, they all caved in and agreed a very simple agreement of peace and friendship containing very few clauses, this is where the students found the beauty in what they learned. Treaty history is often portrayed with Indigenous groups represented as a homogenous collective all settling for the same mutually agreed terms from the Crown in each specifically numbered negotiation. In the chaos of the classroom setting, where frustrations often boiled over, the students realized that this was never the case. That settler-colonialism was not benign as they had been taught, and that the idea that Indigenous nations knew exactly what they were signing was a falsehood. They also recognized that this failure to understand did not represent lower intellectual capabilities among Indigenous communities, but was more a case of incompatible worldviews. Even groups allied to each other were distracted and divided with mis-stated intent or duplicitous promises from another group. The issue of territorial sovereignty was one of the most hard-fought contests during the exercise, and gave many students pause to reconsider how the treaty relationship to the land – as well as the Indigenous relationship to the land – is taught, and what lessons are hidden from them in this teaching.

Several students demanded to know where the Indigenous perspective was in the exercise and there was an important lesson here too. While some wanted a more overt representation of Indigeneity in the negotiations, this had deliberately been left under the purview of each individual group. While each classroom proceeding began with formal introductions and statements of intent, the non-Indigenous students were careful to respect their Indigenous classmates by not overstepping cultural boundaries or protocols. Thus, the best method of identifying Indigenous perspectives were in the negotiations themselves. Each student spoke English as a first language and were confident they knew how treaties were negotiated, only to find themselves outflanking each other or being outflanked on a regular basis. In a real-time setting they understood how difficulty it was to negotiate in a foreign language, with a party intent on consolidating them into a single homogenous group and using duplicity to reach those aims. The non-Indigenous students said that they now understood the magnitude of what the treaties represented, while several Indigenous students responded that they too understood more about the reality of sitting in negotiations with the weight of responsibility for future generations depending upon the outcome.

There are some tweaks I need to fix before offering the assignment again, such as making it a semester-long project rather than the final two weeks of the semester, and asking students to consider Indigenous perspectives more beforehand. Listening to the students offer their thoughts on how they are now reading the treaties differently than before, and understanding more about reading what is NOT written as much as what is, as well as having a better grasp on the literal effects of settler-colonialism and settlerism more generally, it is definitely an assignment I will be keeping for the future.

 

Staying relevant in Indigenous Studies as a non-Indigenous scholar.

Source: Staying relevant in Indigenous Studies as a non-Indigenous scholar.

Staying relevant in Indigenous Studies as a non-Indigenous scholar.

Source: Staying relevant in Indigenous Studies as a non-Indigenous scholar.

Staying relevant in Indigenous Studies as a non-Indigenous scholar.

Source: Staying relevant in Indigenous Studies as a non-Indigenous scholar.

Staying relevant in Indigenous Studies as a non-Indigenous scholar.

I will start with these quick, but unequivocal, statements. I am not Indigenous. I do not claim a mythical ‘cultural heritage.’ I do not seek validation by parading Indigenous family members as ‘proof’ of my connectedness. I do not claim DNA (I actually have no idea what random mixture my DNA consists of). I do not claim to speak for Indigenous Peoples. Although I identify as Scouse, I am, for all intents and purposes, white. I am also, in the most literal sense of the word, a Settler, having migrated to the USA only twelve years ago – in 2005.

I do not make these statements seeking applause for owning my whiteness or settlerism, but to make a point. The point being: It took me less than a minute to type these words. It is THAT easy to acknowledge my whiteness. Why am I making this point? Because of the increasing number of examples of PretIndians in academia, (faculty and support services), literature, politics, and other aspects of public life, who continue to falsely claim Indigeneity for themselves. Or, as with the current furore over Write magazine in Canada, seek to dismiss the very existence of cultural appropriation, or as is more often the case, to deny that settlerism is real.

How is this connected to staying relevant in Indigenous Studies? I believe that answer is twofold. First, because such actions are quite possibly the most invasive and damaging forms of cultural appropriation; are by their very nature unethical; reinforce structural and institutional racism; and create pain, anger, and suspicion, among Indigenous peoples. Second, because those who seek to falsely claim Indigeneity, either through identity or heritage, appear to do so as a means of acquiring instant validation, and therefore relevance in their field, which is usually only at least a couple of degrees away from being connected to indigenous Studies (or it various incarnations – American Indian Studies; Native American Studies, First Nations Studies; etc.), and without any concern for the damage that they are causing.

Such actions mean that spaces often reserved or at least intended for Indigenous voices are now being occupied by imposters. Why this is dangerous and problematic has been articulated much more eloquently than I could ever hope to do so by such Indigenous thinkers as Kim Tallbear, Vince Diaz, Suzan Shown Harjo, Glen Coulthard, Tanya Tagaq, Robert Warrior, Adrienne Keene, and too many others to mention. In most cases, the issues that result from such imposters taking these spaces include silencing actual native voices, stories, and intellectualisms; creating false narratives; of claiming lived experiences that never happened; of exemplifying and strengthening the sense of settler entitlement; and the commodification of Indigenous identities and cultures. Settler entitlement itself ensures that Indigenous realities remain secondary to the false narratives being displayed, or claimed, or validated.  And such pursuit of validation and relevance renders, at least in the eyes of willing audiences, actual Native voices as invalid, and irrelevant, especially if the imposter is rehashing the age-old, hyper-romanticized, notions of Indigenous peoples. Hearing these romantic myths ‘validated’ by imposters is the epitome of settler entitlement, and the mirror reflection of the imposter’s own desires. As the imposter seeks validation through perpetuating agreeable stories, so too does the non-Indigenous audience seek validation in hearing such tales of innocence and inferiority, which remove all evidence of settler guilt/responsibility in the process. In such instances, actual Indigenous voices, especially those seeking to dispel such romantic and racist idealism, sound discordant and are unwelcome intrusions to the blissful white noise of settler entitlement.

On a basic, subliminal ego level, the idea of being immediately accepted as an ‘expert’ on Indigenous histories and cultures is appealing,  as is the idea of being welcomed without question or mistrust by Indigenous peoples and scholars, but personally, never to the point of pretending I am actually Indigenous. As a scholar I expect my work to be critiqued and peer reviewed anyway, so while it sometimes feels ‘inconvenient’ to have an extra level of scrutiny attached because I choose to work in Indigenous Studies/History, it is also entirely expected. After generations of historians, anthropologists, sociologists, and other ‘ists’ writing paternalistic, patronizing, dismissive texts that claim to speak ‘for’ the ‘simple’ and ‘innocent’ yet ‘tragic’, and ‘tragically misunderstood,’ Native peoples; or creating laws, policies, and systems, that sought to suffocate Indigenous peoples; those of us who inherit that legacy must be prepared to prove we do not continue it. We must be prepared to answer any and all questions about our motives and intentions for working in this field. And we must be prepared to show that when we write about, and not for Indigenous Peoples, we are being informed by Indigenous scholars, academics, artists, and storytellers, rather than by the western worldview which we naturally inhabit. We must be prepared to prove that we are not distorting Indigenous voices, claiming these voices and experiences as our own, simplifying these voices, or seeking to translate these voices into our own western framework. And in addition to the growing number of exceptional Indigenous scholars out there, we also have some outstanding non-Indigenous scholars that we can learn from – scholars like Frederick Hoxie and Theda Purdue, who created a new legacy decades ago by writing ethically sourced histories of Indigenous peoples, and always ensured that their works showcased, and were informed by, Indigenous voices.

And for me, this is how to stay relevant as a non-Indigenous scholar in Indigenous Studies. To listen to, and learn carefully from, Indigenous voices, scholars, activists, educators, artists and community members, and to as often as possible, use my position to shine a light on, and hold a torch to these voices and peoples, humbly moving to the side as I do so. To always stand next to, and not in front of, or in place of, Indigenous peoples. To be an ally and advocate in ways that actually help rather than ways that make me feel good. To accept that I will always be learning, and will always, at least to some,  be outside of the cultures and communities I work with and write about, no matter how deeply I am welcomed into them. To always ask permission, and accept that I am likely to hear ‘no’ when asking if I can write or speak about certain issues or aspects of cultures. To respect every no that I hear. To learn to engage with Indigenous peoples on their terms and in their spaces – or more bluntly, to show respect. To be willing to accept that I will make mistakes, and to be willing to hear what those mistakes are (I may well have even made a few in this essay, although I sincerely hope not). To accept that I will often be met with caution, if not outright mistrust by Indigenous individuals and communities, and that it is my responsibility to earn a way past that caution and mistrust, rather than an inherent right to be accepted openly without my motives being questioned. To accept that I will be questioned, often, by students, and colleagues, and even family members, and asked to prove myself, often on a daily basis. To accept that for every interview with a ‘source’ that I wish to conduct, I may have to submit to being interviewed by them beforehand. To accept that if I take from a community – whether that be through knowledge, stories, memories, or lessons shared – I must be willing and prepared to give back to that community.

And finally, to accept that even though I am a settler who does not try to seek validation by falsely claiming Indigeneity, I will constantly have to answer and apologize for those of us who do. As I said at the beginning, I did not write this for applause or validation, but to make a point. From my perspective it is far easier, and much more ethical, and intellectually and emotionally rewarding, to acknowledge and own my whiteness and work my way to trust from there. And so, on that note, even though I try always to earn respect and validation through hard work and ethical scholarship, I sincerely apologize for those of us who seek to cheat their way to such respect. And I sincerely wish that they would stop.

Fighting for Our Lives: #NoDAPL in Historical Context

by Nick Estes

Little has been written about the historical relationship between the movement against the Dakota Access Pipeline and the longer histories of Oceti Sakowin (The Great Sioux Nation) resistance against the trespass of settlers, dams, and pipelines across the Mni Sose, the Missouri River. This is a short analysis of the historical and political context of the #NoDAPL movement and the transformative possibilities of the current struggle.

Thousands have camped along the banks of the Missouri River at Cannon Ball in the Standing Rock Sioux Indian Reservation to halt the construction of the Dakota Access Pipeline (DAPL), which promises to carry half a million barrels of heavy crude oil a day across four states, under the Missouri River twice, and under the Mississippi River toward the Gulf of Mexico for global export. Camp Oceti Sakowin, Red Warrior Camp, and Sacred Stone Camp, the various Native-led groups standing in…

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Standing Together: On the Brink of History

We are currently witnessing the largest collaboration of North American Indigenous nations in a generation, coming together to stand with the Standing Rock Sioux to protect water and land resources against yet more oil pipeline expansions in North Dakota. However, when I say we are witnessing, I mean those of us who follow the relevant social media accounts, Facebook pages, or have friends and family who are there, at the blockade. What is happening in North Dakota is a movement of historic proportions, a display of Indigenous unity not seen since the Red Power era of the 1960’s and 70’s, and yet to the larger public, this event is invisible, unreported, and unnoticed, much like Indigenous people themselves for the past century or so.

I was originally planning to write a blog about national monuments and the erasure of American Indians through commemoration, and I may still do so, but current events have taken over my personal news feed to such an extent that I felt compelled to write about this. In 1964, Herb Blatchford described the fish-in protests of the Pacific Northwest as the “largest intertribal gathering since the Little Big Horn.” Clyde Warrior described it as a “the beginning of a new era in American Indian history” when “American Indians would no longer sit on the sidelines.” That event kick-started a movement that led to Alcatraz in 1969, Wounded Knee in 1973, and the passing of the Self-Determination and Education Assistance Act in 1975. Self-determination was a massive shift in federal Indian policy away from termination and assimilation that is still (mostly, when the Supreme Court is not busy undermining it) in effect today. A new era indeed.

Current events feel that significant, as if a major point in history is happening again, right now. Back then the issue at stake was the right to expect treaty promises to be upheld. Now it is the right to expect access to pure, uncontaminated, and water. It is inspiring to watch video links of tribal coaches bringing people into the campground, to see photographs of people filling up their cars with supplies before travelling to the campground. To read statement after statement from Indigenous nations offering support to the Standing Rock Sioux. To see video of horses in full regalia being ridden at the front-line of the blockade. And so much more. In 1964, Blatchford, Warrior, and other Red Power leaders such as Mel Thom, Hank Adams, Billy Frank Jr. made local news, international news, and even an appearance on the Today Show for a few of them, bolstered as their fight was by public support from Marlon Brando, one of the most famous actors in the world at that time. Even then though, there was no major national news coverage, and even now, that support has been historically erased and replaced by his public support for the American Indian Movement at the Oscars in 1973. Moving back to the present however, and rather ironically, another Little Big Horn reference has been made. I apologize in advance that I cannot remember exactly who said it, or whether I saw it on Facebook or Twitter, but in reaction to the alliance of the Lakota, Cheyenne and Arapaho at this time, in this era, it was noted – to paraphrase – that the last time these three nations came together, they kicked Custer’s ass. Such is the sense that history is being made. Again.

Pipelines leak. A lot. And this has motivated this current collaboration of indigenous peoples. The sheer scale of collaborations between citizens of so many nations, many traditionally enemies, and formal letters of support from tribal governments, is unprecedented in the modern era. On a numbers scale, there are probably as many people – it has been noted that many are not warriors, activists, protestors (protectors is much more apt) but just people. Concerned Indigenous people standing up for clean, unpolluted water – gathered at the pipeline as there were at the 1964 fish-ins.

So, we currently have over 1000 American Indians blockading a pipeline construction site in North Dakota, and almost no major media coverage. Despite the country’s obsession with oil. So far, I have seen only a story on NBC news’ website, but no television coverage beyond Democracy Now. Likewise, no major newspaper coverage beyond Indian Country Today and The Guardian. In a ‘news’ cycle perpetually looping on Hillary Clinton’s emails, Donald Trump’s latest faux par, and Ryan Lochte’s bathroom shenanigans, it seems there is no space to cover an Indigenous movement to protect the land, the water, and the planet. Not that this is especially surprising. In January, when global leaders gathered in Paris to discuss climate change, they, and the media, ignored the thousands of Indigenous people, from all over the planet who were demanding access to the talks and the ability to share their knowledge, and thousands of years’ worth of experience in sustainability. Despite the fact that 80% of world’s biodiversity is found on Indigenous lands, which accounts for 10% (legally recognized) of the global landmass, Indigenous voices and concerns are too often ignored when it comes to solving current climate issue, or trying to prevent future problems such as pipeline leaks. The media were quick enough to congratulate themselves for covering the Flint water crisis after thousands of homes were supplied with contaminated water, but are slow to cover this attempt to stop such future contamination taking place. Maybe human misery makes better headlines, and so the media would rather wait until after the water has been contaminated, which will eventually happen.

Pipelines leak.  A lot. And river cleanups are a lengthy and expensive process. According to reports, the pipeline under discussion was deliberately moved south away from urban areas to avoid potential leakage issues. It was this decision that has brought the pipeline route so close to the Standing Rock Sioux and their reservation. Which to some observers, makes this simply an “Indian issue” which is something that can be conveniently ignored. As it was when the Navajo had their rivers poisoned by the EPA, of all organizations. And that speaks again to erasure, which I will cover more in the other blog.

But this is also the crux of ignoring the current clarion call of America’s Indigenous nations, who are also beginning to receive support from Indigenous peoples from other continents. This water that they are trying to protect, is not just theirs. This water is for all of us. As a popular saying goes, and again I’m paraphrasing, “everybody loves the Indian who talks about the land and the water, but they hate the Indian who talks about the genocide and removal.” It’s about time we started listening to those who do both.  Instead of romanticizing and eulogizing about the indigenous relationship to the land, we should recognize that this romanticized relationship was science then and is science now. Indigenous people are our global conscience. They didn’t ask to be, our incessant desire for land, expansion, subjugation and plunder has created this role for them. And I’m sure they would much prefer it if we were capable of nurturing the world without them having to remind us all the time. But, now that they are, we need to listen.

Pipelines leak. A lot. And the leaked oil gets into our land, and our water. Without land, we cannot grow, or graze, food. Without water we cannot grow, or graze, food. Or plants, for oxygen. And without land, or water, or food, or oxygen, we die. Or become ever more dependent on those who do have land, and water, and food, and oxygen. So we need to take notice, and bear witness to what is hopefully the beginning of a new cycle. Of Indigenous voices being heard. Of Indigenous people being recognized, as people, as experts, as equals.  We need to stand together with the Indigenous peoples of the world. We need to bear witness to history being made, as the black snake of Lakota prophecy is beaten back, and the 7th Generation speaks up for us all.  We need to start listening, before water is like oil – inaccessible for everyday people at the sources, and only accessible from a few corporate monoliths who have complete power over supply, demand, and (inexorably ever-rising) cost.

Ethical Research, or Lessons I Have Learned

Source: Ethical Research, or Lessons I Have Learned