By What Authority?

The Dakota Access Pipeline protests, and a brief history of insurrection

Hawa AllanNovember 23, 2016
Fibonacci Blue

Protesters in Minneapolis. / Fibonacci Blue

The 1890 massacre of as many as 300 Lakota men, women, and children at Wounded Knee, South Dakota, by a U.S. Army regiment was precipitated by a Ghost Dance. The dance was originally envisioned by a Paiute shaman in Nevada, a turning point in a prophesy of his in which Jesus Christ had been reborn as a Native American, Paiute ancestors, too, would be resurrected, buffalo herds and other animals would return in multitudes, and “the white man” would relinquish all indigenous lands. The prophecy sparked an eponymous movement, which helped galvanize Native Americans of other tribes, including the Lakota, to use the sacred dance to appeal to their own powers that be and bring this forecast to life. Lakota at Wounded Knee were engaged in just that when nearby white settlers became alarmed, afraid that the dancing signaled insurrection.

The authorities were summoned. First they came in the form of reservation police, then—after a fatal scuffle with chief Sitting Bull that resulted in the death of one officer—as the 7th calvary of the United States army. According to one version of events, yet another scuffle ensued, this time between a deaf Lakota man and a U.S. soldier who had moved to disarm him after another Lakota tribesman broke out into the Ghost Dance. Gunfire was exchanged between the soldiers and armed Lakota, while other Lakota fled for cover. Many tribespeople who were not gunned down by soldiers on the spot were hunted and killed. In the end, after a blizzard, the few hundred dead Lakota, their bodies frozen and contorted, were buried in mass graves. 

More than eighty years later, in 1973, Wounded Knee was occupied by about two hundred members of the Sioux tribe and some armed members of the American Indian Movement (AIM)—a civil rights group formed to fight for Native American self-determination. At this juncture, they weren’t protesting the authority of “the white man” in general, but that of one man in particular: Dick Wilson, a Sioux tribal president renowned for packing his administration with cronies and suppressing dissent with a private militia called the Guardians of the Oglala Nation (GOONs). AIM occupiers had selected the Wounded Knee site to pay homage to those slain there but, unlike their predecessors, appealed to the authority of the State to respect demands that various treaties with Native Americans be honored. Presaging Ammon Bundy and his armed militiamen during the recent standoff at an Oregon wildlife refuge, AIM made demands of federal agencies and exchanged gunfire with surrounding federal law enforcement over the course of an occupation that lasted for seventy-one days until their arrest.

The DAPL protesters’ purported “violence” or “aggression” appears to have been to question the abstract notion of the authority of law enforcement.

Moreover, as Bundy and his crew would, several AIM defendants were able to upend their charges. Among their arguments in federal court was that the federal military was improperly engaged in law enforcement activities in violation of the Posse Comitatus Act. The Act generally prohibits the domestic deployment of federal troops as law enforcement or as a posse comitatus (Latin for the “power of the body”), a body of armed men summoned by a sheriff to enforce the law. Enacted in 1878 after the removal of federal troops from former Confederate states, the Posse Comitatus Act was a coda to the Reconstruction Era, a legislative bar to the military administration of the secessionist South following the Civil War. One surviving exception to the general prohibition under the Posse Comitatus Act, however, is the Insurrection Act of 1807, which authorizes the president to domestically deploy federal troops in order to suppress “insurrections,” “rebellions,” and other “unlawful combinations.” Presidential power under the Insurrection Act is conditioned upon the official proclamation of “insurrection,” either unilaterally or at the request of the state governor. AIM activists relied, in part, on the absence of any such State-authorized utterance to challenge the lawfulness of their search, seizure, and arrest.

Flash forward to 2016. The Oregon Patriot Movement, the sovereign citizen movement that fueled the Bundy brothers’ opposition to federal authority, was inspired by a militant far-right precursor called the “Posse Comitatus” movement. Posse Comitatus members do not recognize the authority of any official above the county sheriff, and typically adhere to white nationalist sentiments, rejecting the citizenship of African Americans as “federally” compelled. These convictions, however bizarre, do reflect the reality that (landed) white men were the “original” citizens of the United States, and help make sense of how such militant right-wing groups can reject governmental authority while wrapping themselves in the flag and calling themselves “patriots.” Such views are evident in the insurrectionary rise of the so-called alt-right wing of Trump enthusiasts and Trump himself, who vows to “Make America Great Again” by rejecting establishment politics and consolidating the entitlements of white Americans.

On October 27 of this year, Bundy and his fellow militiamen were acquitted of federal conspiracy and weapons charges and, on the same day, about 150 “peaceful” protesters were arrested for supporting the Sioux Tribe’s opposition to the Dakota Access Pipeline. This past Sunday, when protesters in North Dakota attempted to remove a barricade on Backwater Bridge in order to advance toward a construction site of the DAPL at the Standing Rock reservation, the Morton County Sheriff’s Department characterized the situation as an “ongoing riot.” Citing aggression, militarized police fired, among other things, a water cannon at protesters in below-freezing temperatures. Obviously, many public supporters swiftly denounced the use of such force as excessive and, in light of dire weather conditions, potentially lethal. Given that even mainstream news outlets have generally described the DAPL protesters as “peaceful,” and this is how they present themselves, what about their actions did police deem to be “a violent disturbance of the peace” sufficient to warrant such force?

Reports have emerged of bonfires started by protesters for warmth that police considered threatening and so doused with water cannon spray in an effort toward “crowd control.” However, the immediate spur for last Sunday’s clash was a move by hundreds of protesters to dislodge a burnt out truck police were using to block access to a DAPL site. Police did not want the protesters to cross the bridge. The protesters wanted to cross the bridge. The protesters’ purported “violence” or “aggression,” in other words, appears to have been to question the abstract notion of the authority of law enforcement. Such use of force by militarized police cannot be justified as a form of self-defense, a bid to protect any of their actual persons.

Insurrection, like beauty, is in the eye of the beholder.

The authority of the police is the authority of the State. Of course, the citizenry has rights and liberties within the context of State authority, and can even challenge how the State wields its authority, but that the State has authority in the first place is beyond question. While law enforcement typically cites practical reasons like physical violence—whether actual or threatened—to justify its use of force in upholding “law and order,” such force also functions to maintain and enforce this authority. The idea that law enforcement would only use force to prevent or curtail harm to an actual living being, and not simply to underline its own dominance, certainly appeals to one’s personal sense of justice. But DAPL, and its particular confluence of police violence against “peaceful” protesters supporting the respect for Native American sovereignty, puts the nature of the authority of the American State into stark relief.

Insurrection, like beauty, is in the eye of the beholder, and a “violent uprising” might only be visible to those whose vested interests are at stake. That North Dakota law enforcement characterized “peaceful” DAPL protesters as “violent” during this recent clash is a testament to the fiction that State authority is legitimized by something other than its mere existence. “The option is not open to us to change our minds,” writes J.M. Coetzee’s protagonist in Diary of a Bad Year, “to decide that the monopoly on the exercise of force held by the state, codified by the law, is not what we wanted after all, that we would prefer to go back to a state of nature.”

Almost all the rare instances in which a U.S. president proclaimed an “insurrection” under the Insurrection Act, daring to encroach upon fiercely protected states’ rights, involved either the enforcement of black citizens’ civil rights (like enforcing school desegregation and protecting the rights of protesters to march from Selma to Montgomery) or the restoration of “law and order” in the midst of a so-called race riot sparked by the inevitable frustrations of fully realizing the rights promised by citizenship (crushing riots incited by Martin Luther King’s assassination and by the acquittal of Los Angeles police who attacked Rodney King).

Indeed, underlying different “insurrections” are different claims. A claim for full incorporation into the citizenry by black Americans; a claim for the fullest respect of states’ rights to reject this incorporation by, say, a George Wallace; a claim to a sort of primordial form of white male citizenship by the Bundy brothers and their cohort. The claim made by Native Americans, unlike these, is ultimately not rooted in the respect for any particular form of United States government or the guarantee of any particular form of United States citizenship. The claim is not one of entitlement or for inclusion—rather, it is borne from a desire for full sovereignty, from a core rejection of the authority of the American State.

Surely, as Native American sovereignty technically exists within the authority of the American State, appeals are and will continue to be made to the State itself, in particular through the courts, to stop the pipeline construction entirely. However, as Sarah Jaffe at Bill Moyers reported, some protesters are not particularly inspired by these administrative machinations: “It’s always a risk when you go into the courts,” said Spotted Eagle of the Great Sioux Nation. “These courts are the courts of the conqueror.” According to Jaffe: “The word I heard over and over again from the people I interviewed was ‘decolonize’.”

About a month after that article was published, DAPL protesters reported a miraculous sight. During a violent showdown with law enforcement on the Standing Rock reservation, a large herd of wild buffalo appeared, as if out of nowhere.

Hawa Allan is a writer of cultural criticism and fiction whose work has appeared in the Chicago Tribune, the Los Angeles Review of BooksSalon, and Transition, among other places. She is Essays Editor at The Offing as well as a graduate of Columbia Law School, where she was a fellow at the Center for the Study of Law and Culture. Her website is www.hawaallan.com.