The Color of Rights: Malheur, Standing Rock, Palestine

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:

  1. All three involve marginalized groups facing both a powerful political adversary and widespread social skepticism that borders in many cases on overt hostility.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.

17 thoughts on “The Color of Rights: Malheur, Standing Rock, Palestine

    • I’m sorry you lost the comment. So frustrating! I once interviewed the historian James McPherson by email for the History News Network. Apparently, he answered all of my interview questions within the email I sent him; after awhile, his account timed out while he was responding, and the whole interview became history.

      Thanks for sending me the paper, which I’m eager to read, as it’s on the very topic I’ve been thinking about lately. I’m currently in the middle of Ted Morgan’s Wilderness at Dawn: The Settling of the North American Continent, whose first chapter overlaps with the topic of your paper.


      • Stephen,

        I haven’t yet had the chance to read your essay, but I quickly browsed part of it, and wonder whether you’d consider posting the whole thing here at Policy of Truth, maybe in parts or installments. I think it’d contribute to a great discussion. Just a thought.


  1. Great post. The similarities you list seem right and relevant. It also seems right, and pretty much in line with what you say, that, at least in this sort of case, it is hard to see how being a member of a socially-privileged group matters with regard to the relevant (appropriately state-coercively enforced) property claims and obligations. And yeah let’s have some more good theory justifying public land ownership! However, your points more clearly address what the law should be rather than how the disputes should be settled given that we have an obligation to obey existing, reasonable-enough laws (Michael Huemer notwithstanding). Taking this point into account, I’d say that the Malheur (ranchers) and the Standing Rock cases are pretty clear: if the law was followed by the government, and I’m pretty sure it was in both cases, then each of these sets of grievants lack sufficient moral standing to press for these disputes be settled in their favor. In which case the more sensible aim of protest is for getting the law changed. In the case of at least certain Palestinian land-claims, I’m more sympathetic to the idea that the relevant laws are sufficiently unreasonable or unjust that disobedience (perhaps even violent disobedience) is justified (the obligation to obey the law is defeated).

    Liked by 1 person

    • We’re agreeing on a lot here, including your claim that I have more to say about what, ideally, should be the case than how we should resolve the existing disputes. Resolution of the existing disputes requires more factual and legal knowledge than I currently have, so I’m reluctant to say much about it. Suffice it to say that I don’t think the issues are simple.

      Even so, I disagree with this claim of yours (slightly reworded):

      If the government basically followed the law in the Malheur and Standing Rock cases, and they did, then the grievants lack sufficient standing to press for the disputes to be resolved in their favor.

      I would reject the conditional, but even if I accepted it, I don’t think the antecedent is satisfied. I’m away right now, and using Alison’s Mac (which I honestly do not understand how to use), but when I finally get access to a normal computer, I’ll fill in the gaps of the argument I’m about to give you.

      Let’s accept the conditional for argument’s sake. Even so, I think it’s clear that the verdicts in the Malheur case prove that the government did not follow the law, and cannot be trusted to do so (see the links in the original post, but I’ll supply some more when I get the chance). The Malheur case reached the verdicts it reached precisely because the government systematically flouted the law. The Malheur grievants have consistently argued that the government has employed underhanded tactics with them–some unfair, but some illegal. They’ve now been proven right. I’d say the same thing about Standing Rock. What we have in both cases is not just an unfair law or potentially unfair law scrupulously enforced, but a potentially unfair law arbitrarily and dishonestly enforced. If so, the antecedent of the conditional was satisfied in neither case, and the modus ponens inference to “they lack sufficient standing” doesn’t follow.

      But I would dispute the truth of the conditional as such. If a law is deeply unfair, then even if the government follows the law, I don’t think it follows that those aggrieved by the law lack standing to press for resolution in their favor.

      Suppose that the law doesn’t so much demand a specific outcome (fee or no fee; pipeline or no pipeline) as require a specific procedure leading to an outcome, with discretion permitted as to which outcome obtains. In both cases, the procedure may well (probably will) stipulate that the government has the final say, but doesn’t necessarily stipulate what it will say. The same government that demands that ranchers pay registration fees has the discretion to waive those fees. The same executive branch that says that construction of the pipeline should go forward has the power to say it should not. I am not 100% sure this was the case in the Malheur and Standing Rock cases (I’d have to double check), but I’m strongly inclined to think it was.

      But suppose my inclination is right. In that case, the civil disobedience of both sets of protesters was aimed at influencing a procedural outcome, not in demanding that the government literally break the law on behalf of the protesters to achieve their desired outcome. In that case, they surely have standing to demand that the government take their grievances more seriously, and use its discretion in their favor when applying its procedures (deliberating on an administrative decision).

      Something similar is true of protests on immigration issues. The demand that protesters have made is that the authorities use their legal discretion a certain way, not that they literally violate the law because the grievants demand a certain outcome. That’s what I took myself to be doing when I wrote the letter of support for Sarah Ibrahim’s J-1 visa waiver (see “One Little Victory“). I wasn’t arguing that the immigration authorities break the law on Ibrahim’s behalf; I was suggesting that they grant a waiver so as to dispense with the usual J-1 visa process in Ibrahim’s case because the usual process didn’t apply. But a waiver is as legally sound a procedure as the usual procedure.

      Granted (as is obvious) that my letter to the immigration authorities wasn’t a case of civil disobedience. But even if I’d engaged in an act of civil disobedience on Ibrahim’s behalf, I don’t think it would follow that I lacked standing to suggest that the authorities issue a J-1 waiver, simply because in the usual case, the J-1 visa would have required that Ibrahim return to Pakistan for two years before applying for U.S. citizenship. The point of the disobedience might have been to underscore that very fact: that the authorities had the legal discretion and power to grant a waiver and ought to exercise it.

      Even if the authorities had been scrupulously following the law at Malheur and Standing Rock, it’s plausible to think that the grievants had grievances of a sort that gave them standing to influence the legal processes in question. Whether the grievances were sufficiently severe to justify civil disobedience in that quest is another matter. But the legal processes didn’t so rigidly dictate a given outcome in either case.

      I would factor one last thing in. In both cases, the grievants alleged that they had legitimate customary property claims that were being flouted. Both sets of grievants dressed these customary claims in the guise of law, but suppose that they were wrong about their legal claims. Even so, I think one has to look at the substantive merits of their moral claims to decide whether civil disobedience was justified (something that was rarely done in press coverage of either group). If I have a longstanding moral claim to a piece of property, and some bureaucrat were arbitrarily to decide that my claim be dismissed as morally trivial or insignificant (which was repeatedly done in both cases)–and I have no real legal recourse to the decisions of these essentially unaccountable bureaucrats, who shut me down whenever I raise an objection to their activities–then civil disobedience starts to look like a plausible and justifiable option.

      It’s worth remembering that most people under strict regulatory administration cheat. They have to cheat if they’re to survive and function. Were they “work to rule” (as the union phrase goes), life might well come to a standstill. Some people get away with this covert sort of civil disobedience, and some don’t. Some get shot in confrontations with law enforcement over it. But it’s widespread. This ought to be a tip-off that the regulatory-administrative state has gotten somewhat out of control. And I don’t say this as a laissez-faire libertarian. I think it’s just obvious to anyone who has to deal with regulation.

      As I said at the outset, I don’t know enough about the facts and the law to say with confidence that the authorities in the Malheur or Standing Rock cases were as arbitrary/dishonest/unfair, or the laws themselves were as unjustified/unfair as my criticisms of the conditional would suggest. Some more research is in order. But if they were, the government has a lot more to answer for than a few procedural irregularities or disproportionate force-wieldings. The authorities are basically fucking up people’s lives in the name of the law. And their doing so sets themselves up to be fucked up in turn.

      (I cleaned up this comment a day after posting, but I have the double-barreled excuse that I drafted the original version on a Mac, a bizarre and confusing device masquerading as a computer, and did so while under attack by Hugo, our savagely ferocious ragdoll kitten. I trust that that explains and excuses the somewhat incoherent character of the original comment.)

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      • No worries – I did not see the initial version!

        (a) I pretty much agree with the general points you make. I too reject the conditional as stated because I take it that, if a law is sufficiently unfair, then one is not obligated to follow it (and one has standing to seek a different outcome in the present case, not simply agitate to change the law). We could formulate a similar conditional that takes into account standing to dispute based both with regard to gross injustice of the law itself and with regard to gross abuse of discretionary authority. So I’m not sure we are actually disagreeing here.

        (b) That there is discretion in the enforcement of the law (and that there must be and should be) needs to be factored in to deciding whether Malheur or Standing Rock grievants had moral standing (should have legal standing) to seek to resolve the dispute in their direction. At least in principle, this gives a lot more (and different) wiggle room for having standing. However – as much as, as a property owner, I don’t like to say this – it may well be that proper legal standing for disputing outcomes due to procedural, discretionary injustice is quite limited. If we don’t run it this way, maybe the legal system gets clogged up or the modern, regulatory state cannot very well do what it seeks to do. Maybe all the worse for the modern regulatory state! (I take the political left to be right that, due to imbalances in power and “voice,” discretionary authority tends to favor the powerful, connected, educated, wealthy, etc. But this set of favored groups includes, quite prominently, the government and whatever reigning ideologies and personalities are influencing it. I recognize the bias here, but I’m skeptical of ambitious efforts to systematically eliminate it – in realistic conditions, this is neither possible nor desirable. So I don’t like this avenue for expanding the category of discretionary abuse. However, I’m very much open to the idea of expanding the legal discretionary abuse category beyond its present dimensions, including some limited dimensions that address power/voice. And very open to the idea that the injustices in discretionary enforcement often outweigh the regulatory benefits, justifying regulatory roll-back.)

        (c) Just from newspaper accounts, I’m (still) inclined to say that the alternative conditional, revised to account for whatever gross injustices of discretionary enforcement of the law should warrant standing to dispute the authorities, would be satisfied in the Malheur and Standing Rock cases (the prosecutorial abuse in the Malheur case seeming to me to be a different ball of wax). For the authorities, in both cases, seem to me to have followed all the (reasonable enough) rules and not abused their discretionary authority in any gross, obvious way. Decisions were made regarding grazing-rights enforcement (to the detriment of the ranchers), hearings held and permits issued for building the pipeline (to the detriment of the American Indian tribe). Perhaps in both cases the opportunity for better and more just results was better political organization – and the boat was missed. But once such political battles are lost, the results need to be respected. (In each case, there is the potential for gross discriminatory intent in the discretion. If so, there might well be moral – or even legal – standing to dispute the results – standing to void the grazing orders or revoke the pipeline permit. I just did not get wind of any such thing, or any similarly egregious procedural injustice, in the newspaper accounts.)


        • I agree with you on (a). I agree as well on (b) up to the parenthetical. I don’t quite follow what you’re saying within the parenthetical.

          On (c), I have two different responses. My initial response is to say that I think the facts here are complex; since I don’t entirely have them under control, I’m hesitant to say much, and can only voice very preliminary, tentative claims.

          But (and this is my second response) for that very reason, I think you’re over-stating your case. You say that the authorities seem to have followed all the reasonable enough rules despite the findings of prosecutorial malfeasance in the Malheur case. But it’s not clear that the rules are reasonable, and it’s not clear (to me) that they were followed in either the Standing Rock or Malheur cases. The egregiousness of the prosecutorial conduct in the Malheur case makes me skeptical of the government’s handling of the whole case: the prosecutors, after all, worked hand-in-glove with the regulators, and both stand condemned by the judge’s ruling.

          This article deals with some (not all) of the complexities of the Standing Rock case.

          The court handed the tribe a “mixed result,” but a mixed result implies some malfeasance on the part of the government. The ruling holds that the environmental study done by the Army Corps of Engineers was legally deficient.

          Note in particular the technical issue concerning whether an environmental justice study was required for Native residents 0.55 miles from the site. This is the sort of thing I had in mind when I was contrasting positivist and non-positivist approaches to the law. A positivist might insist that no study had to be done because no affected group lived within a half mile of the project. But a non-positivist might justifiably argue that that reasoning is ridiculous. And that is exactly how the judge ruled. I am not saying that I necessarily agree with the need for this study (or not). Nor am I necessarily agreeing with the judge’s reasoning. I’m just saying that it’s not obvious that the government followed the rules in the Standing Rock case. And this is bracketing the government’s use of eminent domain and its abuse of police powers at the protests.

          In the Malheur case, the first thing to note is that it takes enormous effort to wade through the liberal cant written on this topic to get a semi-objective account of what it is that the Malheur protesters are saying, and why. There’s a lot of name-calling and red herring-mongering, but very little bona fide reporting. Apparently, it’s more fashionable to feel sympathy for the Standing Rock Sioux in some quarters than it is for the Malheur protesters. Here’s one of the few approximations to an objective account:

          This is a pretty crappy article, but contains some important facts:

          Here, it seems to me, one has to cut to the case and ask: what, exactly, is the moral justification for the government’s owning so much Western land, and claiming the right to restrict it as it does? I don’t accept the idea that a government can appropriate resources without limit, but that seems to be the reasoning presupposed by the government’s Western resource claims. The government claims to own rainwater. That strikes me as a WTF-level reductio, but apparently it doesn’t strike everyone else that way.

          The Malheur protesters argue on constitutional grounds that the extent of government ownership is excessive (US Constitution, Article I, Section 8, Clause 17). Their opponents argue that the government has the power to make all “needful rules” on the property it owns (Article IV, section 3). The text of the Constitution by itself can’t resolve this dispute. It can only be resolved–and is constitutionally designed to be resolved–by recourse to more fundamental moral principles.

          Now suppose that the Malheur grievants are right (or even approximately right) in their moral judgment that the government owns too much in the way of Western resources, indeed, that the process of the government’s coming to acquire that much land was morally problematic. In that case, I infer that they have a strong legal case: the Constitution is the law of the land, and the Constitution is designed in cases like this to incorporate the moral truth about rights. If so, the entire history of the government’s ownership of the Western lands (or resources) would morally, constitutionally, and legally be called into question.

          In other words, if the Malheur grievants are right that government property claims are excessive (to the point of being rights violative), we would come to see the government’s treatment of white ranchers in something like the way we are often urged to see its treatment of Native Americans: which is to say that both have been treated like shit. And “like shit” would then come to mean: unfairly, unconstitutionally, and illegally. If so, the government’s conformity with the minutiae of its existing administrative/regulatory apparatus would be trumped by the fundamental unconstitutionality of the overall set-up–the unconstitutionality of acquiring and monopolizing so much land.

          I’m not prepared to come down wholeheartedly on the side of the Malheur protesters; I have a lot more reading to do. But I am confident enough of my judgment in the Palestinian case to side with the Palestinians against the Israelis, and I’m struck by the similarities between the Palestinian case and that of ranchers (and the Indians)–which I outlined in the original post. Hence my (defeasible) sympathy. Left theorists like Angela Davis have commented on the (very real) similarities between the Palestinian case and that of African American males, but I haven’t encountered anyone who’s discussed the similarities between Palestinians and ranchers. Someone should.


  2. These two articles, with nearly identical titles, make for interesting side-by-side reading.

    The first, by David Quammen, is a defense of “our” public lands.

    The argument seems to be: public lands are public, and they should remain public, so let’s keep them public, because they’re public. Which means that they’re public. And not private. We all believe that, and a set of hallowed authority figures believes it, so how could it be wrong? Let me add, by way of conclusion, that public lands are public, and should remain that way, because that way, they remain public and belong to all of us–except for those members of the public who don’t want them to be public.

    The second is by Raja Shehadeh, a Palestinian lawyer and human rights activist, and criticizes the Zionist conception of “state land”:

    A crucial passage (p. 4):

    After that ruling [the so-called Elon Moreh ruling], the government depended significantly less on military land seizures. The primary method of acquiring land for settlement construction from then on was to declare it state property. To determine what land could be so designated, a 1979 military survey estimated that 1.53 million dunums of land in the West Bank lacked a registered title or had been recorded, as in the Galilee, through written description only.

    In this case, the declaration of land as state property is a nearly-transparent rationalization for ethnically-based state-sponsored expropriation of Palestinians by Israelis. I think it’s worth asking whether it performs a similar function in the United States.

    Particularly interesting is Shehadeh’s description of the links between the English Enclosure Movement (often associated with Locke’s theory of property), the settling of North America (and expropriation of the Indians), and the Zionist enterprise. There’s a lot to say about that, but let me leave things there for now.


  3. Pingback: BC’s weekend reads | Notes On Liberty

  4. Another addition to the “where there’s a will there’s a waiver” file:

    Relevant passage:

    The timetable for moving the embassy became a charged footnote to Mr. Trump’s landmark decision. When the president signed a proclamation in December recognizing Jerusalem as the capital, he quietly signed another document waiving a congressional demand that the United States move the embassy to Jerusalem within six months.

    At the time, White House officials said practical and logistical considerations drove the decision. The State Department, they said, could not open a functioning embassy in Jerusalem on the timetable stipulated under a 1995 law that requires the president to sign a national security waiver every six months to keep the embassy in Tel Aviv.


  5. So I guess if this post is as much about property rights as about civil disobedience, here’s one more element to bring into coherence with everything else–the sanctuary movement in the context of illegal immigration. A recent, dramatic case from New Jersey:

    A problem for those on “the left”: there’s a certain strain of left-wing thinking that is willing to tolerate what appears to be civil disobedience in immigration cases (e.g., the sanctuary movement) and demands that law enforcement effectively cease at the boundaries of what are unilaterally called “sanctuaries” (whether places of worship or municipalities or localities). But no comparable tolerance is to be shown in cases of environmental or workplace regulations. Immigration law is to be enforced in a discretionary-but-lenient way; environmental and workplace regulations (including, say, the way Title IX applies to the internal proceedings of universities) is to be applied with austere strictness. Obviously, there is a need for some restrictions on immigration and some enforcement of the immigration laws, as there is in the case of environmental and workplace regulation. But it seems to me that common beliefs on the left, broadly speaking, operate against an implicit background about the moral “stature” or moral deserts of those on the receiving end of each form of regulation: immigrants are good, violators of environmental or workplace regulations are bad; immigration law is bad, environmental and workplace regulation is good. Obviously, many people have more nuanced views than that, but lots don’t, and the fundamental assumptions seem unwarranted.

    A problem for “the right,” or at least those in favor of super-strict interpretations of immigration law and its enforcement: First of all, it makes no sense to complain constantly about “regulation” and then treat the immigration laws, a species of regulation, as though they were deserving of utmost respect and strict standards of enforcement. It really isn’t clear to me–and ICE and its defenders haven’t made clear–why strict enforcement of the sort depicted in the preceding links is necessary. But people on the right now act as though it’s necessary. Necessary for what, exactly? Oftentimes, it just seems: necessary to express punitive attitudes toward those who “break the law.” But if you take the broad range of laws that govern us, everyone breaks the law. It’s against the law to abuse opioid medications, but few on the right are saying that we should enforce them regardless of the consequences. But what I think is particularly interesting about the preceding stories is how they illustrate the indeterminacy of the law itself: here we have the Attorney General of New Jersey joining with his other counterparts in a lawsuit against the Trump Administration on ICE’s interpretation of its enforcement powers.

    A problem for everyone: what exactly is the legal-normative status of an agency’s somewhat arbitrary “promise” not to enforce the law a certain way? If a police department makes a “promise” to a hospital to take blood only under conditions A, B, and C, what happens when it unilaterally decides that the promise means nothing in some particular case, and can be violated at will (as in the Salt Lake City case)? If ICE tells us that churches and schools are “sensitive locations” where enforcement actions won’t take place, what happens on the day when it decides that other factors override that “promise”? The whole “sensitive locations” policy is discretionary anyway:

    Determinations regarding the manner and location of arrests are made on a case-by-case basis, taking into consideration all aspects of the situation, including the target’s criminal history, safety considerations, the viability of the leads on the individual’s whereabouts, and the nature of the prospective arrest location.

    Translation: ultimately, we retain the right to do whatever we want.

    And why churches and schools (or courthouses) but not 7-11s or homes? If I pray in my home, and open it as a sanctuary, does that make it a sensitive location, or does that just suggest that I’m playing fast and loose with an exception clause?

    The promise strikes me as meaningless anyway. If I tell you that I won’t arrest you in church, and you go there for sanctuary, the fact remains that I haven’t promised not to arrest you the minute you leave. And eventually, you’ll have to leave. If others decide to provision you and protect you in the church, eventually they’ll have to leave, and I haven’t promised not to stop them from “obstructing justice” in helping you. The whole thing seems like a pointless charade that we put up with for lack of anything better to put it in its place.

    For whatever it’s worth, I’m in favor of the multi-state suit, and of Murphy’s having shown up at the church the way he did (something Christie would never have done). It’s why I voted for Murphy in the first place, and why I was gratified at his appointing Grewal as Attorney General.


  6. This article below by Timothy Sandefur nicely summarizes what I was getting at in point (6) of this post, with respect to Native Americans. The Malheur protesters were widely (and with good justification) described as having racially problematic beliefs, and there’s no doubt a high incidence of anti-Semitic sentiment among Palestinians, as well. But Native American tribes notoriously have their own problems with race:

    Click to access regulation-v40n4-2.pdf

    In the original post, I’d said that a group’s commitment to a problematic sort of racial politics shouldn’t nullify their property rights. That’s complicated in a case where the property rights are held collectively by an entity that is arguably defined by race, and whose specifically racial status is written into law. For now, I’m inclined to think that when it comes to property holdings, tribes may well be regarded fundamentally as political rather than racial entities (so that their collective property holdings remain in tact despite the arguably problematic character of membership-by-racial-definition). On the other hand, I agree with the point Sandefur makes in the article specifically about the ICWA: differential treatment of cases of child abuse or neglect based on race, Native or otherwise, is illegitimate.


  7. Gratified but unsurprised to see this (ht: Christopher Mason).

    Though I’ve never regarded the Bundys as angels, I’ve never accepted the unthinking demonization they’ve faced, especially by people on the left. If you apply the same principles to them as apply to Native Americans or Palestinians, you get a different view of them than the predominant one. People struggling under the weight of heavy state oppression can’t be regarded as operating under conditions comparable to upper middle class people dealing with garden-variety suburban problems.

    It’s not a surprise that people operating under conditions of extreme stress adopt extreme positions–not all of them warranted, fair, or rational. But it’s too easy to fixate on their irrationality. That’s as true of the Palestinian activists and militants I know as it is of the Native American ones. Much rarer is the willingness to grant that they have an insight and independence lacking in a lot of supposedly enlightened and decidedly comfortable people. There is a huge difference in circumstances between people like the Bundys, fighting for recognition of what they regard as their property rights, and the people who surround me in Hunterdon County, New Jersey–who regard “creeping development” as an encroachment on pleasant vistas treated as the collective property of a monied elite. Unfortunately, the distinction is more observed in the breach than in the observance.

    While we’re at it, maybe these people can get some recognition and relief at some point as well.

    Is it really any wonder if the cabin owners in these circumstances resent “environmentalism,” the DEP, and the fetishization of “nature” by people who don’t live anywhere nearby but call the shots anyway?


  8. Pingback: Should Anyone Ever Kill Anyone Who Violates Stay-at-Home Orders? | Policy of Truth

  9. Kevin Carson makes a good criticism of the argument of this post. From a comment of his on Facebook:

    I definitely don’t consider ranchers to be a marginalized group. Federal land policy has always been disproportionately tailored to the interests of extractive industries like logging, mining, and ranching, and the so-called Sagebrush Rebellion is a corporate welfare movement. If anything, state enclosure of Western land — ultimately dating back to Spanish Crown lands several treaties ago — was just another example of the state preempting land and then giving favored access to privileged clients through land grants or leases on sweetheart terms.

    The discussion was prompted by his mentioning this book chapter:


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