This article was originally published by Pro Libertate.
The conflict between the Bureau of Land Management and Nevada rancher Cliven Bundy has laid bare evidence of deeply entrenched institutional racism.
No, I’m not referring to Bundy’s awkward but earnest effort to encourage people of all ethnic backgrounds to seek an end to the suffocating embrace of government paternalism. I’m talking about the fact that the BLM is an enforcement arm of a regime that continues to treat American Indians as “heathens” and “savages” with no rights worthy of official recognition.
Like Bundy, Raymond Yowell operated a small cattle ranch in Nevada and refused to pay the Federal government grazing fees to which it is neither morally nor legally entitled. In May 2002, the BLM mounted a paramilitary operation to confiscate Yowell’s 132-head cattle herd for refusal to pay grazing fees. The rustlers then billed the rancher $180,000 and began to garnish his monthly Social Security check when he declined to honor their impudent demand.
Yowell, 84, is a former chief of the Te-Moak Band of the Western Shoshone tribe. His ancestors were among the signatories of the 1863 Ruby Valley Treaty with the Federal government, which recognized the tribe’s sovereignty over a 24 million acre swath of Western lands the Shonshone called Newe Segobia, “The Land of the People of Mother Earth.”
As is the case with every such agreement, the Federal government acted in cynical bad faith, using the treaty to secure a foothold within a territory slated for assimilation into the continent-straddling behemoth being constructed through Manifest Destiny.
While demanding that the Shoshone refrain from interfering with telegraph lines and stagecoach routes, the Feds did nothing to discourage or deter illegal settlements on Shoshone land. In 1962, one year shy of the centennial of the Ruby Valley Treaty, the Federal Indian Claims Commission proclaimed that this pattern of Federally abetted “gradual encroachment” by Euro-American settlers and speculators had “extinguished” all Shoshone claims to their lands.
In the fashion of a rapist who offers to buy his victim breakfast in order to re-fashion his crime into a “date,” the Feds offered to “compensate” the Shoshones through a settlement amounting to 15 cents an acre. This figure was based on a valuation of the lands conducted in 1872 — long before the discovery of significant mineral wealth on the property, which included the Carlin Trend, which contain North America’s largest gold deposits.
The Shoshones refused to accept the Federal proposal. Those in charge of the land-grab bureaucracy replied with a “Sucks to be you shrug” and “paid” the money to itself, insisting that this bookkeeping feint somehow made the “transaction” legally binding.
At this point, it’s worth remembering this pious utterance by Commissar Harry Reid: “We can’t have an American people that [sic] violate the law and then just walk away from it.” This is precisely how the purulent regime Reid serves acquired its supposedly legal claim to lands in the State he supposedly represents.
The BLM was correctly described as part of a criminal syndicate in a Federal court ruling last year in the case of Nevada rancher Wayne Hage. The agency displayed its irrepressible criminal nature in its dealings with Yowell, conducting an officially licensed rustling operation in defiance of a Federal injunction that the Shoshone chief won through a pro se appeal. But the foundational assumption of Federal Indian policy is that Indians have no standing to assert their property rights. So Yowell’s legal victories did nothing to restrain official lawlessness.
“I looked at it as an illegal seizure,” Yowell said of the 2002 confiscation of his herd. “They took cattle without a court order. Now they are taking from my Social Security check.”
Before the BLM laid siege to his property, Yowell — like Bundy — made a futile appeal to his local sheriff for protection. For several years after the BLM stole his livestock and deprived him of his livelihood, the elderly rancher continued to petition the agency for relief.
“I kept writing letters to them saying I didn’t have a debt with them, that I never signed a contract,” Yowell observed in an Associated Press interview three years ago. “But they just ignored it. There’s no use talking to them.”
Yowell has filed an appeal to the U.S. Supreme Court. The U.S. Solicitor General’s Office is scheduled to file its response — most likely a motion to dismiss the petition — on June 4.
The regime has the luxury of time. It can continue mulcting the octogenarian victim’s Social Security checks while waiting for him to expire, along with the residual legal claims made by the surviving Shoshones.
From the regime’s point of view, all of this is a justified exercise of “plenary” authority over Indian lands obtained through conquest of an inferior race.
In the 1823 case Johnson and Gram’s Lessee v. William McIntosh, the U.S. Supreme Court held that while Indians “were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it,” they were denied clear title to their property — that is, the “power to dispose of the soil at their own will, to whomsoever they pleased.”
Ownership of the land on which the Indians lived was supposedly transferred from them to the newly arrived Europeans through royal grants issued by monarchs acting on authority derived from the Pope. According to the court, those decrees by distant kings of whom the Indians had never heard were sufficient to “convey the soil as well as the right of dominion to the grantees.”
Henry Wheaton, who was the reporter for the Supreme Court at the time of that ruling, later wrote that the Indians tribes, as “heathens,” were “the lawful spoil and prey of their civilized conquerors” and that it was a “maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverer.” Arch-nationalist legal commentator Joseph Story elaborated on this idea, describing the Indians as “infidels, heathens, and savages [who] were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations.”
A brief filed on Yowell’s behalf observed that while cases subsequent to the 1823 Johnson decision “tended to omit explicit reference” to this doctrine of Christian conquest, its core precepts did occasionally bob to the surface. Thus in the 1877 Beecher v. Weatherby case, the court decreed that Indians should be dealt with in a fashion appropriate to “an ignorant and dependent race.” In 1946, the year Congress created the Indian Claims Commission to dispose of Indian land claims, Justice Stanley Reed batted away a suit filed by the Alcea Band of Oregon’s Tilamook tribe by breezily stating that “discovery by Christian nations gave them sovereignty over and title to the lands discovered.”
Nothing in the US Constitution justifies the institutionalized assumption that the Federal government had the right to act as “trustee” on behalf of its so-called Indian “wards.”
The Supreme Court struggled to find Constitutional warrant for that belief in the 1886 case United States v. Kagama. When the text refused to yield the desired outcome, Justice Samuel Miller (a Lincoln appointee, natch) threw up his hands and concluded that the plenary authority to regulate Indian affairs grew out of “the ownership of the country… and the right of exclusive sovereignty which must exist in the National Government, and can be found nowhere else.”
That ruling, one commentator wryly observed, introduced the “`it-must-be-somewhere’ doctrine of Constitutional interpretation.” Presumably, the power to treat Indians as dispossessed wards, like authorization for Obamacare, resides within the Constitution’s vast but inaccessible “Good and Welfare Clause.”
The “finders keepers” or “might makes right” approach to Indian affairs “has never been repudiated,” notes Yowell’s brief. “It is the continuing basis for all aspects of federal Indian law.” The Federal government insists that it is acting on “well-settled” legal principles. The brief ripostes that “slavery and racial segregation were considered `well-settled’ law, and were nonetheless subject to challenge as fundamentally incompatible with the Constitution and the principles of respect for human rights.”
About two years ago, the custodians of acceptable opinion held an orgy of outrage over a monumentally foolish essay published by Bryan Fischer of the American Family Association, in which the author defended the subjugation of the Indians as a legitimate exercise of “the right of conquest” by European settlers.
“The Native American tribes at the time of the European settlement and founding of the United States were, virtually without exception, steeped in the basest forms of superstition, had been guilty of savagery in warfare for hundreds of years, and practiced the most debased forms of sexuality,” Fischer opined. Since Indians, on Fischer’s proudly ignorant reading of the relevant history, “resisted the appeal of Christian Europeans to leave behind their superstition… for the light of Christianity and civilization,” their dispossession by the Federal government was not only defensible, but morally necessary.
Many of the same bien-pensants and self-appointed watchdogs who performed cadenzas of indignation over Fischer’s foolish little screed are prominent defenders of the BLM in its confrontation with Bundy, as the agency — following the same premises as those endorsed by Fischer — seeks to do to Bundy what it has done to Yowell, the Dann family and other members of the Western Shoshone nation who have sought to defend their lands.
The BLM is an indispensable element of the apparatus of dispossession that invokes a medieval doctrine of racial superiority and religious conquest to justify denial of Indian property rights. It continues to scourge people officially designated as “lesser breeds without the law.” And it enjoys the unqualified support of the same progressives who have dishonestly made Bundy a totem of intolerance.
–William N. Grigg