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Diné Water Protector, Marcus Mitchell, in January 2017 at Standing Rock, ND. Photo: Hal Myers

‘Rule of Law’ Favors Indian Country

From Standing Rock to Creek Nation, the Struggle Continues

Jenni Monet
Jul 12, 2020 · 4 min read

The day that U.S. District Judge James Boasberg ordered the Dakota Access Pipeline to shut down, I got a call from twenty-four-year-old Marcus Mitchell.

“Can you believe it?” he exclaimed. We both marveled at Monday’s news; yet, another victory in the larger battle for justice at Standing Rock and Indian Country, overall.

The Diné water protector turned to Facebook and posted Boasberg’s photo in his timeline. In the caption, he wrote two simple words: “Thank you.” Days later, Mitchell went LIVE on the social media platform to address another court proceeding — this time, his own. Since January 2017, he’s sought legal redress after police shot him in the eye with a bean bag pellet while protesting the pipeline. His lonely battle is an obscure one, though important.

Alleging that law enforcement used “excessive violence” and covert tactics to interrogate him, Mitchell learned from attorneys that he could receive a sizeable settlement from the state of North Dakota, one of the few lawsuits of its kind waged by a water protector. He was elated by this news, what fell squarely in synch with a streak of gains seen and celebrated this week among many Native Americans.

In one historic news cycle, decades of racist politics and corporate interests have lost to Indigenous resistance in a prolonged and oftentimes perilous struggle to restore broken treaties, rebuke racism, and demand to be seen and heard. Pipelines have been ordered to stop. A bigoted NFL mascot has nearly been revoked, and nineteenth-century Muscogee (Creek) treaty lands have been restored. In many ways, the story of Standing Rock set the stage for this moment — a movement reacting to Indigenous land loss, environmental injustice, and colonial violence.

Then as now, a steady drumbeat under Trump has relied on the “rule of law” to argue for the normalization of such abuses, particularly in the wake of George Floyd. But throughout the Indigenous struggle, the question has often been “whose rule of law?” The “rule of the strong” as U.S. Supreme Court Justice Neil Gorsuch raised on Thursday in the landmark opinion, McGirt v. Oklahoma? Or “the supreme Law of the Land” —what upheld 1866 treaty rights, a game-changing affirmation in the longstanding effort to return Indigenous lands.

From Standing Rock to Creek Nation, the struggle continues.

Hours after the Court announced its 5–4 ruling in McGirt v. Oklahoma, Texas Senator Ted Cruz stoked fear across America. “Neil Gorsuch & the four liberal Justices just gave away half of Oklahoma, literally,” he tweeted. “Manhattan is next.”

The next day, executives with Energy Transfer Partners, the operator of the DAPL filed an emergency motion with the D.C. Circuit asking to continue pumping oil through the pipeline. Calling Boasburg’s ruling “erroneous,” the company warned a shutdown would lead to “devastating consequences.”

When the rule of law favors Indigenous People, the reaction is to do what those officers did to Marcus Mitchell — give Indian Country a symbolic black eye; make it look bad.

Anybody who knows Oklahoma, and more distinctly, the city of Tulsa, knows that the land, formerly regarded as Indian Territory, was transformed by the discovery of oil. By 1915, William Thomas Gilcrease, a Muscogee (Creek) man, was among the industry’s wealthiest oilmen. Crude found on Creek allotment lands — parcels of tribal land — helped grow his fortune. But the majority of Creek Country was lost to white settlement, enabled by early statehood land laws. But as the Court ruled, these laws wrongly applied to Indian Country.

Contrary to the state over-reaching their governmental powers over tribal affairs, including prosecuting Native Americans for crimes committed on their own lands, the Court made a stunning declaration.

“Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”

In other words, Oklahoma has no legal authority over an Indian reservation even if such persistence of the practice has normalized over the years.

Perhaps no other statement speaks to the Indigenous struggle than the admonishment from the Supreme Court. And its poignant in these times as a nation contends with a racial awakening similar to the social awareness spawned at Standing Rock. In this regard, the Indigenous struggle is an American struggle— it always has been — a shared experience in understanding the reaches of inequality, invisibility, and impact.

On the outskirts of the Navajo Nation last week, Marcus Mitchell found himself stranded in Gallup, New Mexico after he said his car was impounded by the New Mexico State Highway Patrol. Somehow he got separated from his wallet and driver’s license. To pass the time, he passed out masks and hand sanitizer to all who crossed his path.

“I’m tired of seeing my people die,” he said.

Since the coronavirus ripped through the Southwest, an estimated 400 Diné citizens have reportedly died from the disease, according to the Navajo Nation. Gallup, a nearby border town south of the country’s largest reservation, had been under strict lockdown. In early May, Gov. Michelle Lujan Grisham invoked the state’s Riot Control Act to enforce curfews after COVID-19 cases surged, there.

Mitchell, beleaguered, weary, kept on.

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