Tuesday, September 16, 2014

WIKILEAKS II: Tribal Water Rights in Question, Again

All research is political, all politics is research(ed).

Of course, everyone--on all sides of the political spectrum--want us to believe otherwise. That their research is politically neutral because it is scientific; that their knowledge is unbiased because it is acultural; that their claims to truth are free from religious prejudice. And that is is everyone else who is bogged down with the weight of political interest, cultural blindspots, and faith. This is the nonsense of power.

As reported by 
WikiLeaks  the Congressional Research Service (CRS) is a prima facie case in point. It is institutionally located within the Library of Congress as the "bipartisan" or "nonpartisan" and otherwise confidential "think tank" of the U.S. Congress. It is linked to the Congressional Budget Office and the Government Accounting Office with the primary difference being that the its "reports" -- as if apolitically requested and produced -- are kept entirely confidential, distributed first to the specific official or staffer who commissioned them and only occasionally released to the public. Though some lawmakers have fought to make the reports public, the bills to do so have been rejected almost every year since 1998, reports WikiLeaks. "The CRS, as a branch of Congress, is exempt from the Freedom of Information Act."

So, just want kind of research is the U.S. Congress requesting concerning the legal scope and exercise of tribal sovereignty and self-determination? What issues are they "paying attention" to within Indigenous nations and communities? How are the investigations being used in congressional oversight, policy directives, and legislative proposals? How should Indigenous groups respond to these investigations, the majority of which they have not been made privy to either in conduct or in their circulation/use? Does the process of research being conducted in secret under the direction of the U.S. Congress respect Indigenous protocols for research, violate informed consent principles in international human rights law? Does it do harm, in production and circulation?

Water, Water Everywhere and Not a Drop to Drink

On September 26, 2008, Yule Kim, a legislative attorney with the American Law Division of CRS, issued a report of tribal water rights (Report RL32361) entitled Indian Reserved Water Rights: An Overview. Focused on four key state-tribal settlements concerning tribal water rights, Kim summarizes the importance of the issues in relation to he perceives to be the "severe pressure" from US/state citizens on their respective states for "secure access to water." (Emphasis on citizens and not corporations, non-Indian farmers or the fishing industry, or other what-might-be-perceived-to-be particularly politically charged, "special interest" entities.)
The Western states are under severe pressure from their citizens to secure access to water. In planning to meet this goal, Western officials have had to confront the doctrine of Indian reserved water rights, also known as the Winters doctrine. This doctrine holds that when Congress reserves land for an Indian reservation, Congress also reserves water to fulfill the purpose of the reservation. When this doctrine is applied to the water laws of the Western states, tribal rights to water are almost always senior to other claimants. Therefore, in order for Western water officials to effectively plan for a stable allocation of water on which all parties can rely, they must find a way to satisfy the water claims of local Indian tribes. The parties originally looked to the courts to resolve these issues, only to find themselves in an endless cycle of litigation that rarely produced definitive rulings. As a result, negotiated settlements -- which often require federal funding in order to be implemented -- have become the norm. This report provides an overview of the legal issues surrounding Indian reserved water rights disputes. Several settlements are being actively considered by the 110th Congress. H.R. 5293/S. 462 would approve the water rights settlement of the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation in Nevada. S. 3355 would authorize the Crow Tribe water rights settlement reached between the Crow Tribe and the state of Montana. S. 3381 would provide for the Aamodt Litigation Settlement Act and the water rights settlement of the Taos Pueblo. H.R. 1970/S. 1171 would authorize the Navajo Nation Water Rights Agreement.
Kim, working through a modest number of scholarly writings and the standard reserve of SCOTUS rulings concerning tribal water rights, provides an overview of what he perceives to be the key "doctrines" or "requirements" that effect mitigation of tribal water rights: namely, the Winters Doctrine, the McCarran Amendment, and the qualification by Practically Irrigable Acreage (PIA).

The Winters Doctrine, following from the SCOTUS opinion in Winters v. United States (207 U.S. 564, 1908), "holds that when Congress reserves land for an Indian reservation, Congress also reserves water to fulfill the purpose of the reservation." As a result, "tribal rights to water are almost always senior to other claimants because the creation of most Indian reservations predates most other non-Indian water claims," Kim argues. Therefore, Kim continues, "in order for Western water officials to effectively plan for a stable allocation of water on which all parties can rely, they must find a way to satisfy the water claims of local Indian tribes."

The McCarran Amendment, Kim explains, "allows state courts to adjudicate Indian water rights." It allowed for the "dismissal of Indian water rights claims filed in federal courts when there are ongoing, concurrent, and comprehensive state adjudications available to hear the claims." SCOTUS has "concluded that the McCarran Amendment's main purpose was to designate comprehensive state adjudications as the primary means to determine water rights claims; allowing concurrent federal proceedings would thwart this policy goal by creating unnecessary litigation that would lead to duplicative and possibly contradictory judgments."

The PIA qualification is the "assumption that the purpose of an Indian reservation is agricultural. Starting from that assumption ... the only feasible and fair way by which reserved water for the reservation can be measured is irrigable acreage." But in reviewing court precent, Kim finds that this qualification was overturned by a redefinition of the "essential purpose of an Indian reservation" not to be agricultural but instead "to establish a 'permanent home and abiding place'" for Indians "to achieve the twin goals of Indian self-determination and economic self- sufficiency."

With that purpose in mind, tribal water rights must be evaluated on a case by case basis and take into consideration: "(1) the tribe's history and culture; (2) the reservation's geography and natural resources, including groundwater availability; (3) the reservation's physical infrastructure, human resources, technology, and capital; (4) past water use; and (5) a tribe's present and projected population."

Kim concludes:
Many parties have concluded that issues as complex and important as those outlined in this report may be better resolved by settlement, with each party compromising in order to achieve its most important goals. As the drive for a dependable water supply in the West has grown stronger, so has the desire to quickly settle tribal water claims in order that Western water officials can effectively and accurately plan for the future. In addition, tribes understand the negotiating power that comes with a reserved water right -- power that can be leveraged to address other tribal needs. This transition from courtroom to negotiating table brings with it a larger role for Congress, which must approve a settlement if the settlement requires new federal appropriations.  
While offering that tribes yield some negotiating power in relation to states owing to their water rights, Kim concludes that the U.S. Congress, in light of SCOTUS and state court precedence, has a "larger role" to play in mitigating tribal water rights--both at the "negotiating table" and in the approval or not of state-tribal negotiations and settlements that require federal appropriations.

Part III: Questioning Tribal Sovereignty

“Just because you're paranoid doesn't mean they aren't after you.”
― Joseph Heller, Catch-22

Several issues are raised by Kim's report on tribal water rights. As mentioned in my previous blog, WikiLeaks I, several immediate matters are raised: 1) the report tells us nothing about the author of the report except the he is a legislative attorney with the American Law Division of CRS (a search in WikiLeaks reveals that he authored several reports on tribal legal issues, including the Indian Child Welfare Act, tribal civil ligation, and the Cherokee Freedmen issue, all also from 2008). 2) We do not know the name(s) of those in Congress who commissioned the report or what their intentions were in doing so. 3) We do not know how the report was used or circulated.

Since I've already suggested what the political implications of "what we don't know," I want to consider what this report's implications are in relation to tribal politics and culture.

I begin with two key current issues of energy development.

1) The Keystone Pipeline was proposed in February 2005 by TransCanada. It was approved by the National Energy Board (NEB) of Canada in September 2007. ConocoPhillips acquired a 50% share in the project in June 2009. The US Department of State issued a presidential permit authorizing the construction of facilities at the US and Canada border in March 2008. TransCanada bought out ConocoPhillips in June 2009. Meanwhile, the Keystone XL (eXport Limited) extension was proposed in 2008 and approved in March 2010 by the NEB. The South Dakota Public Utilities Commission granted a permit for its construction through the state in February 2010. As reported in various news outlets, the EPA stalled its construction in the US on the grounds that the environmental impact study was inadequate and should be revised. The report was subsequently revised and reissued in August 2011. The reported said that there were no deleterious impacts of the pipeline on the environment as long as protections were in place but that the proposed route through the US would present "significant adverse effects to certain cultural resources."

2) The "Halliburton Loophole" of the Energy Policy Act of 2005 excludes hydraulic fracturing or "fracking" from EPA regulation:
SEC. 322. HYDRAULIC FRACTURING.Paragraph (1) of section 1421(d) of the Safe Drinking Water Act (42 U.S.C. 300h(d)) is amended to read as follows:‘‘(1) UNDERGROUND INJECTION.—The term ‘underground injection’—‘‘(A) means the subsurface emplacement of fluids by well injection; and‘‘(B) excludes—‘‘(i) the underground injection of natural gas forpurposes of storage; and‘‘(ii) the underground injection of fluids or proppingagents (other than diesel fuels)pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.’’. 
It has also been used, such as within Pennsylvania, to prohibit doctors from revealing the medical effects of fracking.

Given the extraordinary amount of water used and contaminated--for an unknown period of time--by the oil and gas industry, and the deregulation of both activities from effective federal oversight, it is difficult to near impossible not to read Kim's report in their contexts.

In other words, his caveat about tribes being emboldened (unfairly? unjustly?) in negotiations with state governments because of their inherent water rights--long ago recognized under the Constitution by treaty and the courts--and his more direct conclusion about the power of Congress at the "negotiating table" and in the approval or not of state-tribal negotiations and settlements that require federal appropriations, have real political importance for tribal sovereignty and self-determination. Are members of Congress concerned about the ability of tribes to curtail or stop their acquiescence to the demands of the oil and gas industry for unlimited water access and use? From any real accountability for water contamination? As powerful energy corporations, lobbyists, and representatives in Congress work to deregulate the industry even further from public scrutiny, in deviance of growing public demands for the contrary, tribes become more and more central in questions about remaining water sources--above and below ground.


“The recovery of the people is tied to the recovery of food, since food itself is medicine; not only for the body, but for the soul, is the spiritual connection to history, ancestors and the land.” Winona LaDuke, Recovering the Sacred
Frankly, I don't like talking about the sacred in public spaces. It is too easily made into a cliche and so too easily dismissed as crazy new agey talk or misunderstood as some generic spiritual truth. So I'm not going to say it.

What I will say is this. Kim reports that state-tribal negotiations over tribal water rights are supposed to take the following into consideration: "(1) the tribe's history and culture; (2) the reservation's geography and natural resources, including groundwater availability; (3) the reservation's physical infrastructure, human resources, technology, and capital; (4) past water use; and (5) a tribe's present and projected population."

These considerations are not abstract, feel good ideas pulled out of the hot air of the government's faux multiculturalist good intentions. They were hard-fought for principles of global Indigenous political action (take a look at the Declaration on the Rights of Indigenous Peoples) that have insisted that any viable, effective legal provision for Indigenous rights by states ought to be historically and culturally relevant.

They are principles that inform Indigenous perspectives about the relationships and responsibilities they have as caregivers of water. Indigenous peoples do not consider themselves merely as consumers of water seeking revenue sharing or fair distribution (though some tribal elected officials and individuals have been snared by the capitalist's trap.)

They are also principles that inform Indigenous cultural protocols for conducting ethical and principled research on Indigenous issues. They mean that the nonsense confidentiality surrounding this and other CRS reports on Indigenous matters have no business being commissioned, researched, and submitted without consultation with tribal governments, at the very least.

According to those I have touched base with so far at Shoshone-Paiute, Crow, Taos Pueblo, and Navajo, none of the tribes knew this report was being produced, let alone by whom or for what purposes. Folded into the politics of U.S. surveillance, isn't this a gross violation of the Declaration on the Rights of Indigenous Peoples to which the United States is a signatory? of Article VI of the U.S. Constitution?
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Sunday, September 14, 2014

WIKILEAKS I: Tribal Sovereignty and U.S. Confidence

Part I: The Congressional Research Service

The Congressional Research Service (CRS), institutionally located within the Library of Congress, is the confidential, nonpartisan research unit for the U.S. Congress. Popularly referred to as a "think tank," it is where congressional members and staffers commission particular research on issues that might generate potential congressional action--including those both foreign and domestic, legal and economic. It is staffed by around 700 people, including lawyers, economists, librarians, social, natural and physical scientists, with an operating budget around $100 million annually.

CRS is linked to the Congressional Budget Office and the Government Accounting Office with the primary difference being that the reports generated by the CRS are confidential, distributed first to the specific official or staffer who commissioned them and only occasionally released to the public. Though some lawmakers have fought to make the reports public, the bills to do so have been rejected almost every year since 1998, reports WikiLeaks. "The CRS, as a branch of Congress, is exempt from the Freedom of Information Act."

As reported by WikiLeaks, "CRS archives as a whole are firewalled from public access," no doubt because they represent the "off the record" political agendas of those directing them. "The reports top the list of the "10 Most-Wanted Government Documents" compiled by the Washington based Center for Democracy and Technology."

In 2009, WikiLeaks secured over 127,000 pages of material from CRS, including those addressing the U.S. relationship with Israel, the wars in Iraq and Afghanistan, and the 2008 foreclosure crisis.

Over the next few blogs, I will review some of the CRS documents that pertain to American Indian tribes, Alaska Native villages, and Native Hawaiians--the three legal categories of Indigenous peoples, as defined by the United Nations, within U.S. territory. My initial inquiry is guided by concerns about how the U.S. Congress is "paying attention" to Indigenous nations and individuals--what concerns and issues do they request be investigated? How are those investigations important to congressional oversight, policy directives, and legislative proposals? How should Indigenous groups respond to these investigations, the majority of which they have not been made privy to either in conduct or in their circulation/use?

Part II: Tribal Sovereignty and Nonmembers

On April 2004, Nathan Brooks, a legislative attorney with the American Law Division of CRS, issued an analysis (Report RL32361) entitled Tribal Sovereignty Over Nonmember Indians: United States v. Billy Jo Lara. Brooks summarizes the SCOTUS case as follows:
On April 19, 2004, the Supreme Court handed down its decision in United States v.Billy Jo Lara allowing Indian tribes and the federal government to each prosecute nonmember defendants for the same on-reservation crime without violating the Double Jeopardy Clause. This case presented interesting questions of Indian tribal sovereignty and how Indian tribes fit into the American Constitutional structure of government. The case centered around a tribe's authority to prosecute nonmember Indians for crimes committed on that tribe's reservation. Billy Jo Lara, an Indian, was arrested by Bureau of Indian Affairs (BIA) officers on the Spirit Lake Indian Reservation in 2001 for public intoxication. In the course of his arrest, Lara, who is not a member of the Spirit Lake Nation, struck one of the officers and subsequently pled guilty to three violations of the Spirit Lake Tribal Code. Lara was later charged in federal court with assaulting a federal officer, and moved to dismiss on the ground that his having to stand trial in both tribal and federal court for the same offense violated the Double Jeopardy Clause of the Fifth Amendment. The Eighth and Ninth Circuits, when confronted with this issue, had each reached very different conclusions, and the Supreme Court granted certiorari to resolve this split. In order to answer the question of whether or not the federal prosecution violated Double Jeopardy, the Court had to explicate more clearly than in its previous cases the source of Indian tribal sovereignty. Relatedly, the Court also had to determine whether the answer to this question is grounded in the Constitution or in federal common law and legislation.
Brooks, working through a limited number of scholarly journals and the standard fare of SCOTUS opinions concerning tribal jurisdiction, provides a rather unremarkable conclusion about the implications of the case:

The Supreme Court's holding in Billy Jo Lara preserves Congress's ability to allow tribes to prosecute nonmember Indians, while retaining the federal government's authority to prosecute those same defendants. It seems likely that the Court's holding also, in essence, eliminates the long-standing distinction between inherent and delegated authority in that Congress now clearly has the power to classify authority as "inherent" at its choosing. It should be noted, though, that according to the Eighth Circuit's dissenting opinion, which utilized reasoning similar to that of the Supreme Court majority, delegation would still come into play in those situations where Congress does not have the power to restore aspects of tribal sovereignty. It is not clear, however, under what circumstances such a situation could arise.

Somewhat speculative, the conclusion emphasizes congressional authority to allow tribal courts to prosecute nonmember Indians even while federal authorities maintain ability to prosecute those same defendants. It likewise infers federal plenary authority and its rather meager limits under the U.S. Constitution as a central premise of Indian law. In other words, Congress can pretty much exercise whatever powers it wants in relation to tribes. Hardly a shocking revelation, at least for tribal people.

Part III: Questioning Tribal Sovereignty

While we learn a great deal overall from the documents provided in WikiLeaks about U.S. surveillance of tribal governments, we learn far less than the fictionalized drama of a novel or film might suggest we would.

For instance, we do not learn who Nathan Brooks is, only that he is listed as the author of numerous reports dealing with diverse legislative issues from the American Law Division of the CRS. We learn that most of the reports concern tribal issues are issued from the American Law Division and seem to concern the character and scope of tribal legal standing and rights to sovereignty and self-determination--constitutionally, congressionally, and otherwise.

Further, we do not know who initiated a given report or to whom they are circulated, including but not only this report on the SCOTUS decision in United States v. Billy Jo Lara.

As a consequence, we can only muse as to the report's intent and function.

2004, an election year, was a busy one for the members of the Senate Committee on Indian Affairs--including several who were up for re-election. It had generated or was partnered in producing 500 reports on its fiscal duties ending in 2004. There does not appear to be any specific bill or committee report that explicitly addresses issues for/at Spirit Lake Indian Reservation or Lara. Neither does it appear that the committee heard testimony concerning either Spirit Lake Indian Reservation or the Lara decision.

But clearly someone in Congress--on or off the Senate Committee--was concerned enough about the SCOTUS decision and its precedent to ask the CRS for a confidential student and analysis on the issues it raised. Was someone interested in or concerned about the American Indian Probate Reform Act of 2004 (amending the Indian Land Consolidation Act affecting ownership rights in trust or restricted lands)?

The issue, then, is not merely about the confidentiality of the request and the use of the report, but the short and long term goals of securing an analysis of tribal jurisdiction and due process on tribal lands.

Did these questions inform challenges later to the reauthorization of the Violence Against Women Act or the passage of the Tribal Law and Order Act, as questions challenging the scope of tribal jurisdiction over nonmember Indians and non-Indians on tribal lands? (See the Federalist Society, the FBI, the Red State, and Citizens for Equal Rights Alliance for an idea of how these arguments were made).

Was someone mobilizing evidence in support or challenge of tribal sovereignty? Shouldn't such efforts, federally funded, be transparent to tribes?

Monday, September 1, 2014

No Place (for Indigenous Peoples) to Hide

Glenn Greenwald, No Place to Hide: Edward Snowden, The NSA, and the U.S. Surveillance State (NY: Metropolitan Books, 2014).

Glenn Greenwald's No Place to Hide demands all kinds of attention for its fearless analysis of the United States as a surveillance state in service of its own political and economic interests and the protection of the rich and powerful. While U.S. surveillance programs -- overseen by the NSA and contracted with multiple transnational corporations -- directly violates U.S. constitutional protections for due process and against unwarranted searches, Greenwald's work exposes further the lies at the heart of American exceptionalist claims to being the premiere democracy in the world. These lies, perpetuated by the establishment media, must be publicly debated and appropriate safeguards put into place, Greenwald argues.

For here, in my abhorrence for the entire genre of book reviews, I would like to think with Greenwald's work in mind about how the U.S. surveillance state impacts Indigenous peoples in their relations to the "Five Eyes" or FVEY, including the United States, England, Canada, Australia, and New Zealand. The FVEY are the NSA's closest surveillance allies with whom and between whom it would appear that most if not all surveilled metadata is shared.

Basically, the FVEY enjoy liberal access to NSA and one another's archives, including surveillance records of calls, contacts, calendars, emails, and chats through virtually every social network site including Facebook, Yahoo, Google, SKYPE, and Microsoft and telecommunication's company including Verizon and AT&T. The NSA is central in the FVEY's exchanges because the US was central in defining the Internet as such.

What this means for the rest of us are full breaches of all of the security and privacy checks and browsing programs that we avail ourselves of in order to protect our privacy and online anonymity. Everything from who is involved in an email to where they are located to the content of their posts and exchanges -- social, financial, and otherwise -- are subjected to NSA collection. The NSA then shares that information either en masse or by request with other government agencies and corporate partners.

(Beyond the FVEY, Glenn Greenwald notes that the NSA generously shares its surveillance archives with Israel. Other nations are partners but not so freely exchanged with.)

"Collect it all"
“If they can get you asking the wrong questions,
they don't have to worry about answers.” 
― Thomas PynchonGravity's Rainbow

The NSA is every minute expanding its infrastructure -- personnel, administration, programs, buildings -- to store, catalogue, and assess its archives of the trillions and trillions of gigabytes of data it collects every day.

What I find particularly interesting about about its programs are their discursive frames of reference for Indigenous peoples -- both for what that framing represents about the kind of surveillance state we live in but as well what it forecloses in questions about the operation and implications of U.S. surveillance in relation to Indigenous constitutional and human rights.

The NSA -- and by implication the FVEY -- wants to know everything about everyone. At least, it wants to have the data readily available to access, distribute, and analyze in relation to political and economic policy decisions, treaty and trade negotiations, United Nations meetings, and long-term planning.

But the NSA -- and by implication the FVEY -- frame their efforts in the terms of U.S. and FVEY political and economic interests that locate Indigenous peoples under their plenary authority as domestic constituents whose individual concerns are matters of national security. By accepting the terms of U.S. and FVEY federal law, the NSA and the data and analysis of political affairs that it generates fails to account for the unique constitutional and international laws that provide for Indigenous sovereignty and self-determination.

For instance, shouldn't Indigenous nations in territories now claimed and often illegally occupied by the U.S. and other FVEY nations be fully consulted in the how, when, why, and what that they and their citizens are surveilled by the NSA? The how, when, why, and what their information is accessed and shared? Shouldn't they be involved in making decisions about how and if their territories are used for constructing and maintaining the NSA's surveillance infrastructure? Shouldn't they be able to say no?

The Patriot Act and Department of Homeland Security have, since 9/11, made it abundantly clear to Indigenous nations, particularly those whose territories implicate US-Canadian and US-Mexican borders, that they will be made to cooperate with border, drug, and AFT enforcement agencies or be punitively treated. Indigenous nations are coerced and bullied into partnering with federal departments and agencies, rarely if ever respected as sovereigns with self-determing powers over their citizens and territories in relation to U.S. political concerns or corporate interests.

Compare the treatment of the Mohawk Nation in upstate New York and the Tohono O'odham Nation in Arizona. As Brenda Norrell has frequently reported in Censored Newsthe Mohawk abjectly refuse cooperation and are subjected regularly to severe state and federal policing while the officials of the Tohono O'odham have cooperated with and are frequently awarded federal grants and services.


“Just because you're paranoid doesn't mean they aren't after you” 
― Joseph HellerCatch-22

Indigenous peoples in the United States and Canada know very well that they have been watched all along by federal and state officials and by corporations, particularly but not only those opposing government and corporate land grabs and resource extraction/exploitation.

As reported by Glenn Greenwald, OLYMPIA is the name of Canada's program that surveils the Brazilian Ministry of Mines and Energy. As Glenn Greenwald writes, the Ministry regulates an industry of greatest concern to Canada's energy development (119). In cooperation with the NSA, Canada's program has set up spying posts for communications around the world (121). In turn, the NSA is actively engaged in surveillance of South, Central, and North American energy companies under the guise of anti-terrorism but explicitly concerning economic trade concerns (134-5).

As reported by Christine Graef for Mint Press, based on documents available through WikiLeaks, energy corporations have been watching Indigenous peoples for years, perceiving them as "terrorists" standing in the way of their interests, reviewing both their political organizing and strategies but as well the contours of their personal lives.

In 2007, surveillance involved communications between members of the Tyendinaga Mohawk in Canada:
On June 29, 2007 a group of Mohawks from Tyendinaga Mohawk Territory blocked the CN Railway Line running through their territory, the Highway 401, and Highway 2 to protest conditions on Native reserves across Canada and the Government of Canada's sluggishness in resolving outstanding land claims. Blockade spokesman Shawn Brant faces multiple charges stemming from these actions, and the Crown prosecutor is currently seeking a 12 year minimum sentence. During the preliminary inquiry to Shawn Brant's trial, it came out that the Ontario Provincial Police, headed by Commissioner Julian Fantino, had been using wiretaps on more than a dozen different Mohawks without a judge's authorization, an action almost unheard of recent history in Canada. Those conversations between Julian Fantino and Shawn Brant were presented as testimony during the pre-trial hearing. The Crown obtained a publication ban during the preliminary inquiry, which was challenged last week by the Canadian Broadcasting Company after they found out that the O.P.P. had officers posing as cameramen during the Day of Action, a tactic that has recently been condemned by the Ipperwash Inquiry. The publication ban was lifted by a judge on Thursday, July 17th, 2008. A number of news agencies published initial analysis on the testimony. The next day, July 18th, the Ontario Court of Appeal ordered the publication ban re-instated until an appeal hearing next week.
WikiLeaks documents show further the tracking of Indigenous activities in the United States, such as those concerning a tribal coalition seeking trade relations with Turkey (from 2010), attorneys with the Native American Rights Fund in representing the National Tribal Environmental Council (from 2010), and federal and corporate concerns about how to respond to tribes involved in conservation management of the Klamath River basin (from 2005).

I am confident that Indigenous resistance in Canada and the United States to the energy industry -- ongoing and proposed -- is under NSA's radar. We can all be assured that anyone even remotely associated with Idle No More or other Indigenous groups and officials actively opposing energy corporations, most immediately within the territories through which the Keystone XL Pipeline is proposed or fracking occurs, are targets of NSA surveillance. We can assume that when we sit across the table or block a road that those on other side have NSA-generated information about us--our lives, our friends, our Internet habits, including how and when we have talked to each other and what our strategies and concerns are. I am very much looking forward to Naomi Klein's This Changes Everything to confirm my suspicions and provide the definitive "site map" for NSA surveillance.


Indigenous nations have constitutional and human rights to sovereignty and self-determination. These rights are violated by NSA operations at the collective and individual level. Clearly it is long-past the time for Indigenous leaders to demand a return to the treaty as the proper form through which US-Indigenous relations are adjudicated.
"Western civilization, unfortunately, does not link knowledge and morality but rather, it connects knowledge and power and makes them equivalent. Today with an information `superhighway' now looming on the horizon, we are told that a lack of access to information will doom people to a life of meaninglessness -- and poverty. As we look around and observe modern industrial society, however, there is no question that information, in and of itself, is useless and that as more data is generated, ethical and moral decisions are taking on a fantasy dimension in which a `lack of evidence to indict' is the moral equivalent of the good deed." ― Vine Deloria, Jr. (Lakota) 
"When you start talking about a surveillance state, certainly on an overall level I get worried and suspicious about it. But I also think, “Welcome to the Indian world!” All of a sudden all these white folks are feeling a slight taste of what it is to be black, living where they're being watched and judged and potentially a suspect. But of course the government has been spying on us. I was not shocked by the report. In fact, I was shocked that it wasn't bigger. Internet culture and internet technology have made it so much easier to spy on us and we willingly participate in it. We sign up with these places. Google scares me and I'm on Google. Facebook scares me. I get worried when capitalistic interests are the ones who contain all of our speech. These are giant corporations whose primary motivation is money, which it should be, but when you're talking about economic interests, you're talking about people who may not necessarily be loyal to their customers. So I worry about all of it. I worry that the world's largest bookseller is in court trying to become the repository for the CIA's online records. Do you really want to be buying your books from the same place that stores the CIA's records? For me, it's becoming one global thing which is going to control all of us. I turn into a leftist, paranoid conspiracy theorist and it makes me paranoid. It makes me feel like an Indian although I am already an Indian."  Sherman Alexie (Spokane)

Wednesday, August 20, 2014

Dispossessions in Ferguson

Part I: The Dispossession of the Illini

The city of Ferguson, MO, was built within the historical territories of the Illini/Illiniwek or Illinois Confederacy, including the tribes of the AlbiuiAmonokoaCahokiaChepoussaChinkoaCoiracoentanon, Kaskaskia, MoingwenaMichigameaEspeminkiaMaroaMatchinkoaMichibousaNegawichiPeoriaTamaroa, and Tapouara.

Through 1700, the confederacy was decimated by disease and warfare. By 1800, only five tribes remained—the Cahokia, Kaskaskia, Michigamea, Peoria, and Tamaroa. Under the terms of the Indian Removal Act of 1830, they were forced to cede their remaining territorial holdings and remove to Indian Territory.

Allegedly, some tribal lands were bought or otherwise acquired by Charles A. Lewis, who sold them to William B. Ferguson. In 1855, Ferguson deeded 10 acres as a right-of-way to the North Missouri Railroad Company--or, the Wabash, St. Louis, and Pacific Railroad Company. In exchange for the deed, the company located a train stop on the property and named the stop after Ferguson.

In 1876, the company built a spur line linking Ferguson and St. Louis. Ferguson Station then served as a rural place around which a suburb was built. It was incorporated as a city in 1894. Early settlers were primarily wealthy white landowners and investors following the railroad line.

Part II: The Dispossession of African Americans


  Total population
    One race
      Black or African American
      American Indian and Alaska Native
      Native Hawaiian and Other Pacific Islander
      Some Other Race
    Two or More Races
      Two races with Some Other Race
      Two races without Some Other Race
      Three or more races with Some Other Race
      Three or more races without Some Other Race


  Total population
    Hispanic or Latino (of any race)
      Puerto Rican
      Other Hispanic or Latino [2]
    Not Hispanic or Latino

According to the Census 2010, Ferguson is 29.3 percent (6,206) are White, 67.4 percent (14,297) are Black, 0.4 percent (80) are American Indian/Alaskan Native, 0.5 percent (103) are Asian, and 1.2 percent (260) are Hispanic or Latino.

As has been reported in relation to the murder of Michael Brown, often as a banal fact of life for African Americans, the overwhelming majority of Ferguson city officials, police, and school board members are White.

As reported in the New York Times
With primarily white police forces that rely disproportionately on traffic citation revenue, blacks are pulled over, cited and arrested in numbers far exceeding their population share, according to a recent report from Missouri’s attorney general. In Ferguson last year, 86 percent of stops, 92 percent of searches and 93 percent of arrests were of black people — despite the fact that police officers were far less likely to find contraband on black drivers (22 percent versus 34 percent of whites). This worsens inequality, as struggling blacks do more to fund local government than relatively affluent whites…. That helps explain why majority-black Ferguson has a virtually all-white power structure: a white mayor; a school board with six white members and one Hispanic, which recently suspended a highly regarded young black superintendent who then resigned; a City Council with just one black member; and a 6 percent black police force.
But this is not just a matter of the disparity between white men and everyone else in the public life of Ferguson (though there is that), but how racist and sexist ideologies and practices of violence inform and reproduce that disparity as banality.

Part III: Dispossession in Between

The current structure of power in the United States is predicated on the violent and fraudulent dispossession of Native nations from their historical territories and resources and the exploitative dispossession of Blacks from their bodies and labor.

Opposing that power demands that we not dismiss as banal either the erasure of Native peoples from Ferguson, Missouri, as a historical fact that those few Natives still around need to get over and stop making everyone else feel guilty about or the killing and disenfranchisement of Black people as an unfortunate deviance from an otherwise democratically principled society.

Opposing that power demands that we look for ways to connect our histories of dispossession in compassion, generosity, and solidarity. What would it look like if Native governments, in their government-to-government relations with the United States and Missouri, advocated with Ferguson leaders against police violence on Black male bodies? What would it look like if Black leaders in Ferguson and elsewhere demanded, as part of the necessary legal reforms needed to address violence against their communities, Native land rights? How might we rethink our histories and struggles as interlocked and interdependent against their fractured separation in the service of existing power relations? 

“A great many people in North America believe that Canada and the United States, in a moment of inexplicable generosity, gave treaty rights to Native people as a gift. Of course, anyone familiar with the history of Indians in North America knows that Native people paid for every treaty right, and in some cases, paid more than once. The idea that either country gave First Nations something for free is horseshit.” ― Thomas King (Cherokee)The Inconvenient Indian: A Curious Account of Native People in North America

“Where the really sincere white people have got to do their ‘proving’ of themselves is not among the black victims, but out on the battle lines of where America’s racism really is – and that’s in their own home communities.” -- Malcolm X, Autobiography