About a year and a half ago, having spent a summer in Palestine and a week on Pine Ridge Indian Reservation, I ventured the observation on Facebook that three political disputes I’d “recently encountered” (in a loose sense of “encountered”) struck me as fundamentally similar in nature, and yet attracted fundamentally different constituencies. For brevity’s sake, let’s call them “Malheur,” “Standing Rock,” and “Palestine,” taking those as shorthand designations for more complex things.
In a narrow sense, “Malheur” refers specifically to the case of a bunch of aggrieved ranchers who forcibly took over a wildlife refuge by that name in Oregon; they were arrested and stood trial, and have now been acquitted. In a broader sense, I take “Malheur” to refer more generally to the grievances that Western property owners have against American resource policy (state or federal), including riparian law.
In a narrow sense, “Standing Rock” refers to the dispute over the Dakota Access Pipeline, in which Native Americans of the Standing Rock Sioux Tribe disputed a federal policy permitting the construction of 1,200 mile-long natural gas pipeline on land that, while falling outside of the Standing Rock Reservation, was claimed by the tribe as its own (as a sacred burial ground). In a broader sense, I take “Standing Rock” to refer to what the Native scholar Ward Churchill describes as the indigenous “Struggle for the Land“: the entire list of Native/U.S. land disputes, from Standing Rock to the Keystone XL Pipeline to the Black Hills, and beyond.
As I’m using it here, “Palestine” refers to the entire swath of contemporary resource disputes involving Israelis and Palestinians–most crucially in the West Bank, where the primary mechanism of “appropriation” is the Israeli policy of declaring land that it regards as unused or underused “state land,” prohibiting Palestinian access or use to this land, and reserving it for Israeli use, e.g., for the Israeli military, for tourists with Israeli citizenship or Israeli entry visas, or for Jewish settlers. There’s no need to distinguish narrow and broad senses here: “Palestine” and “property dispute” are practically synonyms, and have been for at least a century.
From my perspective, these three disputes are fundamentally similar in nature despite the obvious (but to my mind superficial) differences between them. Here’s what I take to be the morally relevant similarities common to all three cases:
- All three involve marginalized groups facing both a powerful political adversary and widespread social skepticism that borders in many cases on overt hostility.
- All three cases involve disputes about land or resources that are held by a government exercising jurisdiction over the resource in a way that is sharply at odds with the property claims of each group.
- In all three cases, an aggressively positivist lawyer could, without much trouble, argue that the law is more on the side of the overlord than of the underdog–though of course a non-positivist lawyer might well successfully dispute the positivist case, and a realist moral or political philosopher might argue that both lawyers were missing the larger point.
- All three groups feel aggrieved, and given the intensity of the grievances involved, have protested their adversaries. These protests have won some limited sympathy from a small group of heavily-invested sympathizers (in each case), but in the end, all three grievants have gone largely forgotten by mainstream political culture, as have their grievances. Evidently, a suburbanized culture preoccupied with zoning, development planning, vehicle ownership, “Green Spaces,” historic preservation, and house-flipping finds the property claims of ranchers, tribal activists, and stateless Palestinians hard to understand or sympathize with.
- In all three cases, the protests involved a mixture of violent and non-violent activity by the protesters, as well as a substantial bit of procedural irregularity and/or disproportionate force-wielding by the government. Of course, in all three cases, one might plausibly argue that it’s the state that was the driver and initiator of the violence in the first place.
- In all three cases, the groups associated with the protesters–Western property rights advocates, Native American tribes, Palestinian nationalists–could, with some justification, be accused of holding some problematic beliefs, among them racism, sexism, and religious fideism, and of engaging in some problematic practices based on these beliefs. That said, a finding of racism and sexism with respect to members of a certain political group doesn’t nullify the rights of the individual members of the group, or even of the group as a group. You can’t, after all, steal someone’s property or invade it simply because you discover that some of the people who live on it are racists or sexists. Or so liberal rights theorists have long argued.
- All three grievances raise questions about the legitimacy of “state ownership of public lands.” In saying that, I don’t mean to be claiming that private ownership is everywhere and always superior to public ownership. I simply mean that there are times when private ownership comes into conflict with public ownership, or when claims of public ownership come into conflict with one another. In the first case, it’s not always clear that public ownership trumps private ownership. In the second case, it’s not clear how to resolve the relevant disputes. But I see no reason to think that claims of public ownership always trump those of private ownership.
- A deeper issue here concerns the normative status of public property itself. While philosophers have spent inordinate effort at puzzling over the rational basis for private appropriation and ownership, comparatively little effort has (to my knowledge) been spent on the justificatory basis for public ownership. Our brows are still (justifiably) furrowed over the Lockean thesis that homesteaders convert unowned resources to private ownership by laboring on the land and bounding it, subject to the waste and “enough and as good” provisos. But the history of public ownership is a history that presents a much deeper puzzle: how do sovereigns at a distance from (and entirely without physical contact with) a resource manage to convert the resource to public property by the sheer act of declaring it so? In other words, how do people who have never labored on anything turn resources into public property without ever coming into physical contact with those resources?
I’ll just stipulate that my sympathies are with the Malheur protesters, the Native tribes, and the Palestinians all at once. Though the legal standing of their claims is unclear, I think it’s clear enough that morally speaking, there is something to them.
Indeed, morally speaking, it seems to me that there is one and the same thing to them. To put the point in a minimal way: in all three cases, the groups’ property claims, though de-valued in the law, ought to be taken more seriously, and given more respect. At a minimum, it ought to be admitted that insofar as the blackletter of “the law” favors interpretations held by the U.S. government, the Israeli government, the pipeline companies, and/or the Jewish settlers, the claims of the law are defeasible rather than conclusive.
Ultimately, the competing property claims at issue have to be resolved by appeal to moral principles that may or may not have found their way into the law. Since our theories of property (private and public) are in a confused state (and threaten to remain that way for the foreseeable future), it’s unclear exactly how all of this is supposed to go. But it should be clear that it doesn’t obviously favor the U.S. government, the Israeli government, the pipeline companies, or the Zionist settlement enterprise.
I raise the issue (or these issues) less to argue or resolve anything, than to pose a question (or bunch of them). Whenever I’ve pressed what I take to be the similarities between these three groups, I’ve gotten angry objections. The objections have typically come from people on the left, but that’s mostly coincidence; similar objections could very easily have come from the right. The objection I consistently happen to have gotten is that one ought not to “equate” or even compare the grievances of Native Americans and/or Palestinians with those of “white supremacists” like the Bundy brothers (the brothers leading the Malheur takeover). Whereas Native Americans and Palestinians are oppressed, the Malheur grievants are not. We should (the argument continues) therefore focus on the grievances of real grievants, differentiating them sharply from the pseudo-grievances of violent land grabbers like the Bundy brothers.
Other ideological variants on this theme are obviously possible: I could easily imagine someone of right-wing libertarian (or Objectivist) sympathies saying that it’s the Malheur grievants and Zionist settlers who are oppressed, not the irrational, unproductive, mystical-collectivist Palestinians and Native Americans who claim to be. Or that it’s America’s modernity-positive natural gas producers and consumers who are oppressed, not their parasitical and modernity-hating Standing Rock Sioux and environmentalist adversaries. And so on.
Personally, I regard all such claims as beside the point. The fundamental question, as I see it, is who owns the resources and why, a question that perennially seems to take a back seat to other considerations in arguments on the subject. Those who justifiably own the resource have the right to use and dispose of it; those who don’t, don’t.
We could in principle raise other moral or epistemic questions about the moral-epistemic character of the owners–whether they’re generally virtuous or vicious, whether their beliefs are justified or not–but those questions do little to answer the fundamental question, and do little to change its fundamentality. Unless ownership is thought to vary directly with moral character (and I don’t see how it could), it doesn’t much matter that a ranch owner, burial plot owner, or home owner is (on your view, or even objectively) immoral or irrational. If they justifiably own the ranch, plot, or home in question, you wrong them by taking it away from them. In saying this, I don’t mean to be suggesting that claims of ownership are a matter of satisfying amoral or even morally neutral procedures. I simply mean that the correlation between moral judgment and ownership cannot be so fine-grained or tight that a person loses ownership to his property whenever he does something wrong.
I don’t claim to be an expert on any relevant topic here. I happen to know more about the Israel-Palestine dispute than I do about the others, and have at least a passing professional interest in issues involving property rights, including conflicts over property. But I’m very far from being an expert on the Israel-Palestine dispute, and there is in any case a huge gap between the passing knowledge I have of the mostly Locke-influenced literature on property in the philosophical literature, and the knowledge required to adjudicate property disputes in the real world. Besides, despite my sympathy for it, I have only a passing familiarity with Native American politics and activism, and have about that (maybe less than that) when it comes to the politics of Western resource claims (by ranchers, farmers, environmentalists, etc.). So I’m content to raise questions, and reflect quietly on the answers–asking only questions of clarification that might be needed to make sense of any answers I get.
Anyway, here’s my question (or questions). I’ve sketched what I regard as the basic similarities between Malheur, Standing Rock, and Palestine, or more precisely, between the claims to justice each group characteristically makes. If you regard their claims as fundamentally different, why so? Put differently, why do the differences that you see swamp the similarities I’ve adduced? Or is it that the similarities that I’ve adduced aren’t there, or aren’t important?
The one “difference” I can’t take seriously is the idea that the Malheur grievants lack real grievances because they consist mostly of white men, whereas the other two groups have real grievances because they don’t. Even if we grant the existence of white male privilege in this country (which I would), I don’t see any good reason to deny that white men can have grievances requiring rectification. If you really want to insist that they can’t, I won’t object, at least here; I’m just (morbidly) curious why anyone would think that. As I see it, it makes no sense to insist on white, red, or brown rights and pit them against each other. Either rights are colorless or they equally embrace all of the colors of all of their bearers. White males may enjoy a great deal of privilege, but they still have rights, and when those rights are violated, they ought to be rectified. I don’t find that a particularly controversial set of claims, but maybe they are.
At the end of the day, if you really want to insist that red or brown rights matter more than white ones, I guess I’m forced to infer that I have more in common with the Bundy Brothers & Co. than I have with you. It’s a funny thing to say about people I don’t know, but then again, I’ve heard some funny things from those I do.