Malheur, Doctrine of Discovery & Long Memory

Or… “Tolerating the Bundy Militia Cattleman Occupation of Malheur is comparable to tolerating a KKK occupation of a Black Church.” – the historical amnesia that got US there.

Witnessing the cattleman “militia” occupation of Malheur, and the governmental seeming tolerance of it, has been outrageous. Dumbfoundingly violent when viewed from a First Peoples perspective – in this case the Burns Paiute Tribe. The occupiers revealed common ignorance and insensitivity to the larger story of colonization in what has become the state of Oregon. By both domestic and international law, it can easily be argued that the Burns Paiute Tribe holds legitimate title to the land in dispute, based on their 12,000 years of occupation and ongoing un-ceded presence in the landscape. Citizen militias in the Oregon country were historically enlisted for decades, with the support of the regions public newspapers, in a public campaign of extermination against First Peoples, including forced marches onto distant reservations where they were forbidden to leave and not provided with nutritious food or medical care and died in prolific numbers. No one has ever been held to account for these crimes and in fact, many of the militia murderers in the early history were given financial reward by Congress.

The long story of militias, cattle and Land Title are at the heart of unreconciled and ongoing stories – that in modern legal terms – can easily be viewed as genocidal in impact. It is an important time to understand origins of the legal concepts of Land Title – and how they have been used – in the story of Oregon – together with cattle and “militias” to perpetuate an ongoing violation of First Peoples. Much of this history is not taught in schools. This educational omission can be viewed as active denial of the racist and violent underpinnings of the modern American State. Such repressions of history, pervasively evident in most mainstream media, are an ongoing aspect of unreconciled genocidal culture.   We hope you will take the time to consider the history and how it informs choices we can make toward a more just and abundant future together.

Roots of “Law”, Land Title, and Controlled access to meeting Biological Needs

To understand the current status of land title in Oregon and the unique status of the US government and First Peoples in the federal legal system, one has to go back to the origins of English Common Law and European International Law – which were imposed upon the North American landscape in the formation of the USA.

Ancient law exists in the American landscape and is often overlooked in thinking about legal responsibilities connected to the occupation of land in the Americas. All peoples can trace their lineages to indigenous place based, migrational rounds based peoples, with long cultural formations arising out of the marriages to ecologies and geographies of place. Within all indigenous communities legal orders have developed – sometimes in decentralized forms – sometimes in formal structures. Within indigenous communities first law is often taught as responsibility. Responsibility rather than license is viewed as the root of freedom. Law is legitimate in so much as it informs a people of their responsibilities, allowing the community to flourish and to protect itself from those within or without who might enact harm upon individuals or groups. Historically, indigenous law at its best, seeks to empower communities to heal those who, out of illness, or ignorance, bring harm, and to heal the wounds of those victimized by such actions. This form of indigenous legal understanding is reentering modern legal orders through the Restorative Justice / Restorative Practices movements – drawing inspiration from Canadian First Nations and the Maori among others. It is also entering into Nation State Common Law through the use of indigenous law provided as testimony in court cases and reference to it made in judicial rulings. These judicial rulings are beginning to place indigenous law into Common Law through the case law process.

The legal logic for the USA’s taking title from existing First People’s ancient occupation of North America is rooted in inheritances from English Common Law and European International Law. Specifically English Common Law definitions of Land Title and the first European International Law – the Doctrine of Discovery, which arises from Roman Catholic Papal Bulls going back as far as the 12th century and culminating in a 1493 bull. All US states except Louisiana (French) and New York (Dutch) have inherited English Common Law property doctrines and all Land Title in the US originates on Doctrine of Discovery legal principles. The Supreme Court made the Discovery Doctrine formal US case law in the 1823 Johnson vs. M’Intosh. The US Supreme Court last used this case law as recently as 1997, 2001 and 2005 to suppress Indian rights. The Doctrine of Discovery and the law, which arises from it, are based on the belief that European Christians are superior to all other peoples and so can bestow on themselves rights of ownership, which peoples of other races and religions cannot. That this law remains at the foundation of property law in the US reveals that genocidal violence is not simply a historic colonial period of expansion reality. These genocidal forces of US colonial law remain active through legal continuities of takings. Takings based on race, religion and monopolies of violence that established and continue inequities of property title in the USA. The occupants at Malheur seem  insensitive to the realities of this history and less than aware of themselves as manifestations of the continuance of this violence.

Modern Legal Systems Feudal Origins

The creation of modern legal systems, and their separation from the restorative practices of indigenous legal orders, can be traced back to the feudal systems of medieval Europe. The feudal legal principal of “might is right” gave feudal leaders power over existing indigenous systems.   Feudal lords saw themselves as having both power over and responsibility to their dependents / serfs – a shadow of indigenous morality. In order to keep the peace among those whose lives they controlled, feudal courts were developed. These courts were used to further concentrate wealth. Tenancy under an overlord required service to the lord, which increased the power and wealth of the lord. Victims of harm were not guaranteed any reparations – instead fines and property takings were paid to the lord – further concentrating the wealth and power of the feudal lord. In exchange for this, feudal lords had responsibilities, such as hosting the 12-day feast of Christmas and protecting people from the violence of competing lords.

Both the English language and Legal systems are viewed as having origins in the Norman Invasion of the British Isles in 1066. An invasion led from France by the Nordic family who had ruled there for several generations. The elite leadership did not have indigenous roots but rather were inheritors of the feudal principle of “might is right”, applied across an international landscape. English Monarchs feudal legal logic extended over the entire kingdom and was used to concentrate wealth and power. Local feudal courts were required to pay a portion of their takings to the Crown. Felons were required to surrender all land “title” to the Crown directly. Property without heirs was surrendered to the Crown. The terror of this legal system was such that it is said, when the first Royal Eyrie (Court) arrived in my family’s indigenous land of Kernow, the whole nation fled the villages and hid in the forests, in hope of avoiding the courts takings. Today over half of the land title in Kernow is held by the royal family, administered by the Duchy of Cornwall. My own family was sent into diaspora in the 1830’s as it became impossible to survive the consequences of such diminished access to our indigenous homeland.

What is important to note from these origin stories is that the origin of “state law” is not rooted in indigenous law or restorative justice and is built on concentrating wealth and power in an imperial force rooted in the feudal logic of “might is right”. Within these system’s “citizens” are guaranteed certain “rights” to keep the peace in a way that continues the imperial concentrations of power. All citizens exist in a state of tenancy in which they are obligated to provide services to the Crown – which in the US has been replaced by the local, state and federal government. Land taxes and regulation originates out of this old feudal logic.

In order to negotiate the competing realities of the Sovereign or King, Feudal Lords, and First Peoples of Europe, there developed several levels of legal imagination around the idea of “Title”. It is the racist/cultural injustice of some of this logic that has in part fueled the devolution movement in the modern British Commonwealth. This logic will become apparent when we look at the international law embedded in the Doctrine of Discovery – particularly how First Peoples are, in modern law, legally denied full sovereignty, self governance and economic freedom.

In the feudal system the fundamental right to biological needs is withheld from individuals unless they fully cooperate with wealth concentrating market structures of the feudal system. In the English system commerce was only allowed in Royal licensed “Markets”. Access to the market required a license and fee from and to the Crown. All commercial activity was regulated by and benefited the Crown, again concentrating capital and wealth. The trade off was protection from competing colonizing empires exercising the feudal legal principal of “might is right”. Taxation and regulation of commerce were the price for access to biological necessities of existence. This system of legal economic logic continues in US federal policy, which does not allow commercial business activity between Tribal businesses and non-tribal businesses without a federal license. The federal government claims the right to regulate all Tribal Commerce. Control of Tribal Nations economic activity was used to generate debt and then obtain land cessions during the colonial expansion of the USA. Many view this as an economic hit man strategy developed by Thomas Jefferson in forcing land cessions in which codes of honor were exploited to enforce poverty. 

European ideas of “Land Title” and their migration into North America

The Malheur Wildlife Refuge is Northern Paiute unceded lands – formerly the 1.8 million acre Malheur River Indian Reservation.

 Before Thomas Jefferson became a politician he worked as an attorney and almost half of the 900 cases he was involved with revolved around title disputes. His understanding of the creation of title by European Colonial Empires and their transfers to the US – between Indian Nations – and ultimately individual citizens was very nuanced. This understanding led to his drive in creating the Lewis & Clark Expedition of Discovery to consolidate US claims to title in the Oregon country and to develop a low cost economic hit man strategy for extinguishing Indian Title. He was an expert in sabotaging indigenous food systems and creating debt, which then led to “voluntary” sale and surrender of Indian Land Title. As in the feudal system this “conquer” process (used as a legal term of art, when done through economic methods) transferred responsibilities of guardianship to the federal government, which exist in perpetuity. It is out of this legal subordination of sovereignty that the Federal Indian Trust Doctrine has developed.

George Washington was an avid land speculator heavily investing in the individual purchase of Indian lands and the English refusal of acceptance of these title transfers was part of why he supported and led the revolutionary war. After becoming President he supported the US being the only entity that could purchase or “extinguish” Indian title and no longer supported the transfer of title directly from Indian Nations to individuals. This came out of his increased understanding of the European International Law – the Doctrine of Discovery and it’s usefulness in creating a unified empire building strategy, which minimized conflicts among settler-colonizers. The monopoly power also suppressed land valuation, as there were no competing bidders.

The idea of land ownership is taboo among most indigenous people. Land is a sacred trust, made up of the ashes and dust of ancestors. As the Duwamish leader Sealth is reputed to have said, “We do not own the land, the land owns us.” The concentration of wealth is also taboo among most indigenous peoples. Leadership arises out of the powers of giving rather than the powers of taking. Formal giveaway ceremonies in which the wealth of the landscape is shared with surrounding communities, is a part of the indigenous arts of peace, a responsibility in enduring occupations of place.

This is in sharp contrast to ideas of “title” which developed during the feudal period in Europe. Title is connected to ideas of entitlement – or right to extract and concentrate wealth with little equity of responsibility.

Here is a primer on the levels of title:

Allodial Title – constitutes ownership of real property (land, buildings and fixtures) that is completely independent of any superior landlord. The term allodium is rooted in the idea of taking hold of uninhabited land through occupancy and defense of the land.   In the modern developed world true allodial title is only possible for nation state governments. In the USA a few states, notably Nevada and Texas, grant a limited non-transferrable form of title they call allodial, which exempts the owner from taxes. State educational institutions, churches and Indian Reservations are granted limited forms of allodial title. All title in the USA is subject to imminent domain and civil and criminal law forfeiture.

Fee Simple or Fee Simple Absolute Title – This is the highest ownership interest in an estate in land. This title is limited by government powers of taxation, compulsory purchase, police power and escheat and can have additional encumbrances or conditions in the deed.

The word “fee” is derived from fief, meaning a feudal landholding. Tenure historically involved services or serjeanty, to the overlord. These services could be military, agricultural or cultural and involved an exchange of responsibilities between overlord and fief or tenant. When these personal obligations were abolished such title became “simple” and all obligatory responsibilities transferred to the state / citizen relationships.

Siesin in Law and Siesin in Deed – In medieval law strength of tenure was conveyed at two levels – “in law” and “in deed”. “Livery” or delivery occurred when within sight of the land the owner declared the recipient to have been granted possession. This however was viewed as an incomplete conveyance. Complete conveyance required an entry onto the land and a witnessed ceremony in which twigs, sticks or other artifacts were symbolically transferred to the new owner. Turf & Twig ceremonies were practiced into early Colonial America. When Fort Astoria was reclaimed in 1818 from the British, ceremony was held with local First Peoples as witnesses, in which soil was ceremonially turned over, representing the transfer of Allodial Title from the British to the Americans. In the modern era this is the delivery of deed, or the right to immediate possession. This right of possession can be transferred at two levels – legal title or equitable title, which can be separated. When a property is leased legal title is retained but equitable title is transferred to the lessee. Trusts are often set up so that the trustee maintains legal title and equitable title is transferred to the beneficiaries.

So how is it that these European legal structures of ownership were imposed upon the American landscape?

The Doctrine of Discovery and the Creation of Land Title in the Americas

Pope Alexander VI's Demarcation Bull, May 4, 1493. (Gilder Lehrman Collection)
Pope Alexander VI’s Demarcation Bull, May 4, 1493. (Gilder Lehrman Collection)

Joseph Campbell, in his work on the history and meaning of mythologies pointed out that patriarchal men’s society’s and the mythologies they create, have often been born or seeded by collaborations between men from a diversity of cultures – seeking to increase their personal power at the expense of their individual societies. In many ways the whole notion of land title can be viewed as a mythology unique to patriarchal “civilizations”. The forces and speciations of the natural world hold little regard for human ideas of ownership. They exist, it seems, only at the level that collective human belief enforces them. Most mammals do enforce territorial boundaries at sexual maturity – so there may well be a deep subconscious sexualization of the landscape at work in ownership rituals and mythologies – and in the levels of violence required to “conquer” a landscape an analogy to rape is apparent. In the story of the Doctrine of Discovery a magical ceremony that suddenly grants ownership to a select elite of self appointed Sovereigns appears. It has a distinct mythological quality. When any story is repeated enough times, and the requirements of its lines become conditions of access to the needs of biology, it achieves a status of a priori fact, regardless of it’s authenticity in any modern sense of equity or justice, let alone rational logic.

During the feudal period of Europe several nations began to convert their old growth forests into fuel for the manufacture of armaments and ships, which led to aspirations of empire building. In hopes of preventing conflicts with each other, guiding advice was sought from the Pope, as the Church was a force, which transcended national boundaries. This advice was dispensed through writings called Papal Bulls and became a first vestige of modern International Law. Roman Catholic popes worldview of the time represented Christianity as the only true religion for earth. As such, Christian Monarchs had a responsibility to bring the entire earth under Christian governance – (not unlike the current ideas of the ISIS Caliphate). They encouraged first the Portuguese, and later the Spanish, to go into the world and authorized their claims of new lands for Christendom. They were authorized to take these lands into possession, and to convert those who lived there into Christianity. They were authorized to take all possessions of those who resisted and to kill or enslave those who were not Christian. Obligation existed to the indigenous peoples, paid for with the “benefits of civilization” and Christianity as well as ongoing occupation of their lands under the new leadership. At a certain point the rivalry between Portugal and Spain in this empire building required the pope to divide the world between them. And so it was that Africa was given to the Portuguese and the “New World” was given to Spain. The line was drawn so that Portugal did get the most easterly edge of the Americas, which is why Brazil speaks Portuguese to this day.

Soon other European powers wanted in on the game and sought legitimacy in their claims by following the procedural actions to apply the concepts of Siesin and perfection of title as outlined in the papal bulls. This led to England, France, Sweden, Holland, Norway and Russia all making claims in North America.

In this mythology all original claims in North America were Spanish. Other colonial Nations often raced for “complete” title using 10 legal elements, which make up the Doctrine: First European Discovery; Actual Occupancy and Current Possession; Preemption/European title; Indian title; Tribal limited sovereign and commercial rights; Contiguity; Terra Nullius; Christianity; Civilization; and finally Conquest. And so it is that there was an imposition of the European Title imagination over the Indian First Peoples landscape reinforced by the “power of might” and the legal mythology imposed. In the American Revolution the Doctrine of Discovery was given continuity with two major changes. The Federal Government whose legitimacy was not to be the “right of might”, but theoretically the will of citizenry replaced the monarch or sovereign. “Right of Might” was however implied in all negotiations with Indian Nations. Citizen status was originally limited to white property-owning men. Individual Indians were granted citizenship in 1924 but Indian Nations remain limited in their sovereign, economic and property rights. Native American spiritual practices were banned and not made legal until the 1978 Native American Religion Restoration Act passed by Congress in its exercise of self appointed Plenary Power over First Peoples. Relocations and the banning of language in schools and the long period of banning cultural and spiritual ceremony are features of cultural genocide used to disrupt indigenous legal orders and sovereign governance.

Madison famously argued in the 1787 Constitutional Convention for property and commerce’s rights within the American system. The Commerce clause was written to as he said, “protect the opulent from the masses”. This republican democracy of ownership then made the possibility of becoming a property owner, a driving force behind settler colonialism. By occupying Indian country, settlers could argue the Discovery element of terra nullius or vacuum domicilium – the idea that the land was previously unoccupied and then by occupation make their claims to title. The American Revolution also separated itself from the church – though it continued to participate with the Doctrine of Discovery, which arose out of a fusion between Church and State. And so it is evident that American secularism is deeply informed in it’s existence by the Christian church. Some argue that this explain’s the common failure of secular democracy in non Christian societies. In Oregon, the early arrival of missions proved stabilizing centers of settler occupation, and were used in arguing for complete Discovery Title in negotiations with the competing British Discovery Claims.

In this legal framework only Christian’s had legal status to claim full occupancy of a landscape and so the arrival of any Christian for the first time resulted in “Discovery” (again, a legal term of art). By ceremonially planting a flag, burying coins or lead in the soil, simply turning a spade of soil or carving initials into trees they were viewed as conveying “Livery in Siesin” for their Sovereign. Such a conveyance was viewed as extending throughout complete watersheds connected to a river / ocean entrance or equidistant between any other Nations claim. The 1792 arrival of Robert Gray in what he named the Columbia River (mapping and replacing indigenous names with European names is an element of strengthening Discovery Title claims) was the USA’s first claim to title of what became Oregon. Thomas Jefferson fostered the Lewis & Clark expeditions, and the establishment of Fort Astoria, in his vision of expanding American Empire through Discovery Title. The Louisiana Purchase, the 1819 Treaty with Spain (Transferring all Spanish Title north of the 42nd parallel) and the contiguity between these claims were other elements of transferring previous Discovery Title Claims. These were all Discovery elements used in countering competing English Discovery Claims in the Oregon Territory.

The Doctrine of Discovery stands as the basis of US property law and has been used creatively by the Russians and Chinese in recent events. The 1823 case Johnson vs. M’Intosh is the first case most beginning law students are required to read in any college course of Property Law. In 2007 Russia used submarines to plant their flag in the bottom of the Arctic Ocean at the North Pole, to establish a Discovery Claim with regard to mining rights in the Ocean. In 2010, China planted a flag deep in the South China Sea to argue superiority of competing Discovery Claims. This old magical ceremonial practice is still being used and referred to in the modern moment.

Cattle, “Militias” and government “tolerance” roles in illegal “Extinguishments” of Indian Title in Oregon  

The Doctrine of Discovery is International Law based on a worldview that saw European Christians as intrinsically superior to all other peoples. It is a worldview that is repugnant from any modern perspective, yet it remains foundational to all property law in the USA. Interestingly, during the colonial process, which Thomas Jefferson was a primary driver for, he repeatedly publicly insisted that while the US held Alloidal Title or Sovereign title Native Nations continued to hold a modified preempted Alloidal Title which came to be referred to as Indian Title. He even emphasized that they would be free to continue the practice of their own governance. They were told that legally they could hold onto that title indefinitely unless they voluntarily ceded such title. The US however held a pre-emption over the right of transfer of any such title. Indian Title could only be transferred to the federal government. In some cases, states such as Georgia gave individuals siesin in law title to lands in which Indian Title had not been extinguished. The courts ruled that while the state did have the power to give such title, it could not be realized as seisin in deed until the occupancy Indian Title was extinguished. This is quite relevant early case law that relates to much of Oregon – particularly the Burns Paiute Tribe, which has never ceded their historic Indian Title. At one point in history they did negotiate a cession but Congress never ratified the treaty, and so it is that the Paiute remain in possession of Indian Title. Settler colonial titles are incomplete and cannot be argued as fully legitimate given this history, together with the archeological evidence and continued presence of the Paiute Nation.

While publicly early American political leaders assured Native Nations that they could maintain occupancy indefinitely, behind closed doors very different thinking and strategy was taking place. George Washington was known to have said that Indians would flee west akin to wild animals as European style agrarian “civilization” moved west. Jefferson did everything he could do to incentivize this westward migration – which eventually became the forced death marches of the trails of tears. The feudal system of Europe was an enclosure system in which free movement and access to the landscape became limited for most people. Indigenous food systems in North America are largely agricultural yet include light forms of management through fire and seasonal rounds that Europeans had little ability to see or recognize. And when they did, they accorded them little value. Colonial settler occupations of the landscape severely disrupted indigenous food systems creating collapses and impoverishments that created dependencies on the federal government. This was part of an intentional genocidal strategy rationalized as “civilizing”. As part of the Doctrine of Discovery Indian Nations lost their ability to practice free trade or negotiate politically with other sovereign Nations. Using the federal trading post system debt was created. Once this debt grew large enough First Nations were approached with offers of land cessions to pay their debts and sometimes lands to the west, which they could then move to. Jefferson argued that the dependent relationship created by this economic and political monopolization of Indian Nations would in the long run be cheaper than going to war. This economic hit man approach was successful in obtaining the cession of the majority of Indian Title in the USA.

The far west presented the problem of no land farther west in which to force Indians. Cattle did much of the early work of disrupting indigenous food systems. Within the first few years of Fort Astoria deer hunting expeditions up the Columbia and Willamette Valleys so decimated deer populations that impacts were being felt throughout Indian country. Once the deer populations were so weakened cattle were brought in. Cattle devastated camas fields and wapato, primary carbohydrates. They also disrupted spawning streams leading up to the industrial salmon fishing, and later hydro-dam blockages, which led to collapses in salmon runs – the primary protein of the region. Starvation forced Indians into working on settler farms for subsistence within the first decades of occupation. The cattle industry remains a primary element in the Oregon economy. I have personally been told by career Oregon state officials that they will not enforce salmon stream laws in cattle country because enforcement would lead to the defunding of their agency. The cattle industry remains a leading obstacle to the repair of indigenous food systems and ecologies.

The imposition of euro-agrarian and cattle based economies act to disrupt indigenous economies and food systems making it easier to weaken and control Indian Nations. The ongoing poisoning of waters, fish and disturbances to traditional roots grounds and hunting grounds can easily be viewed as an ongoing genocidal process. The commodities foods, which have been offered Indians out of the Trust obligations paired to the limitations of Sovereignty, Free Trade and the Preemption of Title, have led to epidemic diabetes and cancers in Indian country.

The Supreme Court itself has ruled that a

“treaty was not a grant of rights to the Indians, but a grant of rights from them – a reservation of those not granted.” (US Const. art. VI; United States v Winans, 198 US 371 (1905).

Northern Paiute Elders… date and names unknown… Malheur might be considered Federal Property but it is Indian Land

This is likely to significantly expand Indian Title and rights in a future where genocidal racism is not the norm. It was this common law understanding of Title that led to the Klamath being recognized as holding senior water rights in much of southeastern Oregon despite only holding a few acres of occupancy title.

In the years leading up to Oregon Statehood there was a lot of pressure to negotiate treaties in which Indian Title was extinguished so that settler colonists could be given siesin in deed fee simple land title. Title claims were being made well before Indian Title was extinguished and much of this title remains ambiguous in any legitimacy – let alone legitimate under Discovery Doctrine. The Mexican American War of 1846 and the discovery of gold in 1849 put fresh pressures on Oregon from the south and when gold was found in the Rogue River country things got bad.

Despite the USA’s claim to allodial title the land was still all in Indian Title status – no treaties or sales had been made. Because of the devastations from small pox which moved through the region beginning in the 1780’s via trade goods, and the weakening of indigenous food systems on the lower Columbia and Willamette, early settlers felt entitled to make land claims with little regard for the status of Indian Title. Settlers were emboldened and began occupation of sites with Indian occupancy. When Indians defended themselves and in some cases killed aggressors, self-appointed settler colonial militias formed. These militias proceeded to commit mass murder on Indian groups, killing all, whether elderly, women or children throughout the territory, forcing the federal government to come in and provide “protection” for the Indians. Despite the horror of what was happening expressed in the regional media of the time, Congress decided to reward the militias with funding “for their service to the nation”. This wealth for murder reward spurred the formation of additional militia’s committing mass murders of Indians throughout the region, (most of whom were not successful in getting back pay from Congress). It was under these conditions that most of southern and Western Oregon treaties were “negotiated” and Indians were forced into consolidation on reservations given “federal protection”. When Indians were off reservation to exercise their reserved hunting and fishing and gathering rights they were often killed and despite seasonal round occupancy, settler claims to the land were unsuccessfully contested. Surviving Indian witnesses to these atrocities were not allowed by law to testify in court against a white man. When promised food stores were not funded or delivered to reservations some Indian women were forced into marrying the killer settler colonist’s in order to get their children access to food.

The Paiute people were “given” the 1.8 million acre Malheur Indian Reservation in 1872. Within just a few years they were killed in the hundreds or thousands, depending on your sources, when forced out of Oregon altogether. By the 1950’s many Tribal Nation citizens were being “terminated” by accepting relocation fees to move to cities. This was all done outside of the scope of the accepted interpretation of international Doctrine of Discovery as it evolved. According to the Oregon History Project:

All of the Paiute who were removed to Washington Territory had left the Yakama Reservation by 1883. Some moved to the Warm Springs Reservation or to Nevada, while others returned to the Harney Basin, settling near Burns. In 1972, the Burns Paiute Tribe acquired title to 771 acres of land, forming the Burns Paiute Indian Reservation.”

The pairing of cattleman and militia and “tolerance” echoes the genocidal violence that led to the current settler colonial occupation of the Indian country of Oregon. It is ugly, racist and evocative of the profound inequities in the foundations of the American State.

Indigenous legal orders are present and the ancient first laws are continuing to be taught in the first food ceremonies, storytelling’s and many other cultural transmissions despite the banning of religion and language by the federal government up until 1978. None of these land ownership concepts were negotiated, but rather they were imposed by the feudal legal principal of “might is right”.   Again, the Supreme Court has reminded us…

“treaty was not a grant of rights to the Indians, but a grant of rights from them – a reservation of those not granted.” (US Const. art. VI; United States v Winans, 198 US 371 (1905).

Perhaps it is time that we give the Paiute people the chance to teach the ancient First Law of this land – and we all get an education on our responsibilities. They never ceded the land and ethically, all occupiers should be looking to their leadership, as guests in these lands they have stewarded for thousands of years.

There is a huge truth and reconciliation process that we have ahead of ourselves if we are to stop and heal the impacts of genocidal violence, which has continued in such law retaining “legitimacy”. The impact of repressed history, a part of an ongoing cultural genocide, is being expressed in the widespread ignorance of this history. An open question is how do we responsibly enter into such a truth and reconciliation process that is healing rather than re-traumatizing?  Canada has entered into such a process and many communities have been devastated by an aftermath of suicides as a result of re-traumatization.  The occupation of Malheur by cattlemen is a re-traumatization reenactment of this history of violence – it’s tolerance only points to the need for the work of truth telling and listening to First Peoples. May we turn this tide and realize a path of reconciliation.


Burns Paiute Children - photographer unknown - From the Burns Paiute Nation website.
Burns Paiute Children – photographer unknown – From the Burns Paiute Tribe website.

Resources –

Thinking on the Doctrine of Discovery leans heavily on the work of Robert J Miller’s Native America, Discovered and Conquered – Thomas Jefferson, Lewis & Clark and Manifest Destiny  – to hear him speak on this subject check out Roots of Contemporary Genocidal Law in North America

The implications of active genocide in the USA as defined by the UN Treaty on the Prevention and Punishment of Genocide,  have been heavily influenced by the work of Roxanne Dunbar-Ortiz author of An Indigenous Peoples” History of the The United States

Dr. David G. Lewis has written several informative histories and commentaries related to the Norther Paiute and the Malhuer Occupation on his blog NDNhistoryResearch

Thinking about Indigenous Legal Orders has been influenced by Val Napoleon and her work at the Indigenous Law Research Unit

History of the colonial, cattle impacts on disrupting indigenous food systems and the use of militias in Oregon Indian removals is well researched by Gray H. Whaley in Oregon and the Collapse of Illahee – US Empire and the Transformation of an Indigenous World, 1792-1859 

Clarity and calm direct words of Burns Paiute Tribe members, about their deep relationship to place and the failure of the Federal Government to respond to the ongoing desecration of their sacred homelands have been inspiring.  We believe that they have been patient long enough and hope that the federal government fulfills it’s trust responsibilities immediately.

Burns Paiute Trabal Council Resolution: 2016-2Burns Paiute Tribe Resolution No: 2016-02Burns Paiute Tribe Resolution 2016-02


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  1. Nice essay, lots of good information here. It will take some time to go through and parse it out. I would suggest checking some of Dunbar-Ortiz’s information as I have found many factual errors in that book. Most are generalizations and glosses that are just not true. One example is her assertion that all native peoples grew corn. That is not true. Check her sources well.

    • Thanks David – Appreciate all the great work you have been doing on this issue. I have noticed that her numbers are occasionally off and have already found myself checking for second sources in connection with her work. What is most powerful about her work from our perspective is her thinking about the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, which really turns the ethics of the Doctrine of Discovery, and the core values of International Law on it’s head. This legal document was written not just to hold to account historic acts of genocide but also to stop activity which leads to wholesale genocide. She does a great job of giving historic and contemporary examples of acts in North America which are illegal according to a meaningful interpretation of the treaty. Given the expulsion of college students this year for arguing for recognition of genocidal history, a part of repression of the history, her work is quite important – even if occasional details of fact distract from the larger truth.

  2. Great work, thanks. I learned a lot, even though I have been writing about these legal title issues for a year now. I’ve uncovered some complementary material: the vital role of the philosophy of John Locke, which helps to both put common law into pre-feudal croft title in the European North and islands, as well as deepening explanations of the process of converting land to property, as part of the story of slavery and the story of Methodism; the vital role, in Oregon and Washington, of the Canadian French, and the complexity of the legacy of the Hudson’s Bay Company, The Red River Settlement, and the Northwest Company; and the disasters of California and Mexico. Hopefully I will have that manuscript finished soon and can share it with you. We’re mapping the same territory here. You have given me great insights here. Some day I hope to return the favour.

    • Thanks Harold! Glad to know this work gave new insight! I will look forward to reading your work! I have become aware that some of the lands in northern Scotland have a form of title that comes from old pre-feudal nordic law – I assume that is the croft title you are referring to. Nordic countries did not experience the feudal period so directly and have maintained a deeper sense of dignity and sovereignty in relation to free movement and access to “wild” foods across all landscapes. I know that the Ho Chunk Nation revised their constitution this last fall to give the Earth herself standing and rights and many First Peoples are entering into treaties with each other across international boundaries… We are at a moment where ancient indigenous legal orders are becoming manifest in ways they may well illuminate a path out of the current devestating legal mythologies of property.

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