"Obedient" Advocacy, Civil Disobedience and Terrorism
To expand a bit on INM, and esp. the Elsipogtog highway block:
one must look to "obedient" advocacy, civil disobedience and terrorism. The best discussion of those three areas (which can be made to overlap), in relation to "First Nation" communities in the US and Canada, I found in Robert Odawi Porter (Syracuse Law), Tribal Disobedience (2005 draft).The RCMP said at least one shot was fired by someone other than police and that Molotov cocktails had been thrown at police, while at least five RCMP vehicles were destroyed by fire. Police also investigated suspected explosive devices at the scene.
"Obedient" Advocacy
Porter shows us four sectors of "obedient" advocacy: diplomacy, litigation, lobbying, and participating in the American political system (pp. 3-8; and pp. 20-24); all subject to Porter's general caveat:
All that being said, recourse to legal remedies ("obedient" advocacy) and their reasonable exhaustion is the first step in my recommended playbook - you might just win (albeit on limited grounds); and that tree, after it grows a while, may bear larger fruit. If that is not in the cards dealt, then the next step is civil disobedience.Generally. The primary limitation associated with the various advocacy strategies outlined above is that Indians are unnecessarily restrained in their advocacy efforts. Primarily, this is due to the fact that the American definition of Indigenous nation sovereignty is much more limited than the Indian definition of sovereignty. It is a truism that the United States will never subscribe to any definition of Indigenous sovereignty that might threaten American interests, however those interests may be defined. ...
Thus, litigation, lobbying, voting and holding office are advocacy strategies that are ultimately successful only to the extent that the United States allows them to be successful. Thus, if Indians, say, want to take a litigation position at odds with federal law ... such a position will ultimately be quashed because it presents too great a threat to American interests. To be sure, the denial of such authority will occur judicially on the innocuous grounds that it is outside of the Indian nation’s jurisdiction. But the ultimate outcome is that the rules governing the litigating of Indigenous rights will turn on an American, and not Indigenous, view of sovereignty.
To the extent that Indigenous peoples accept this formulation of their sovereign capacity – and become completely “obedient” to the American conception of their authority – there is thus created a very real limitation on the scope of their inherent authority. This psychological acceptance invariably leads to the adoption of equally obedient advocacy strategies such as those described above. While it might very well be the case that the degree of acculturation thus far has resulted in a complete harmonization of the American and Indigenous views of sovereignty – so that any distinction between the two is merely academic – it might still be true that Indigenous nations and peoples seek to pursue self-determination in a manner different from what the United States “allows”. Litigation, lobbying, voting, and holding office will ultimately fail to allow Indians to fully maximize their opportunity for self-determination because engaging in these activities promotes obedience to the colonial power.
Civil Disobedience
Porter treats "tribal disobedience" as a specialized subset of civil disobedience (pp. 8-9):
Porter cites numerous examples (pp. 9-20), with a substantive discussion of the efficacy and risks involved in that strategy (pp. 24-30). IMO: if you're not willing to or can't spend the time (jail or prison), don't commit the crime of "civil disobedience".A more refined definition of tribal disobedience can be derived from the foundational elements of what constitutes civil disobedience. Civil disobedience has been described as –
From this definition, the contours of what constitutes an act of civil disobedience emerge. Such an act must be (i) nonviolent, (ii) open and visible, (iii) illegal, and (iv) performed for a moral purpose to protest an unjust law or to object to the status quo and with the expectation of punishment. As a result, certain acts fall below the threshold of what is necessary to constitute civil disobedience. “Mere dissent, protest, or disobedience of the law are not enough to qualify as civil disobedience." On the other hand, purely violent acts transcend the concept of civil disobedience and fall into the realm of criminal activity.an act of protest, deliberately unlawful, conscientiously and publicly performed. It may have as its object the laws or policies of some governmental body, or those of some private corporate body whose decisions have serious public consequences; but in either case the disobedient protest is almost invariably nonviolent in character.
Tribal disobedience is related to civil disobedience in that it is action designed to protest the application of unjust laws. But it differs by virtue of the more narrow application to actions taken by and for the benefit of Indigenous people. Moreover, the nature of the “unjust” laws at issue with respect to tribal disobedience relates specifically to the infringement by the colonizing government on the inherent and treaty-protected rights of sovereignty and self-determination. The acts themselves are public and illegal, and generally, but not always, non-violent.
Terrorism
Finally, the risk of employing civil disobedience by even non-kinetic (generally "non-violent") dissidents whatever the cause has been increased by anti-terrorism acts. Here (pp. 30-31), Porter presents an argument that could be used by a US Attorney under the Patriot Act:
So, there you have the strategies in a nutshell.Under the Act, acts of tribal disobedience could easily be interpreted as acts of terrorism. The Act defines “domestic terrorism” to include activities that –
From this basic definition, it is easy to see how particular acts of tribal disobedience could be misconstrued as acts of terrorism.(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended –
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.
Consider, for example, that sometime in the future Indians decide to block the interstate highway running through their territory to protest efforts by the state to restrict their gaming rights. No weapons are utilized in doing so, but heavy equipment is brought in to move concrete barriers onto the highways and hundreds of Indians mass on those highways. The objective, of course, is to precipitate inconvenience for motorists and a degree of economic disruption so as to put political pressure on the American political officials in a position to take corrective action to induce them to refrain from taking harmful action against the Indians. Assuming that motorists are given some notice that the barriers are in place, blocking interstate highways is not inherently an “act[] dangerous to human life.” Moreover, such an act is not committed with the intent requisite to constitute acts of terrorism because as they are not committed with an intent to “intimidate or coerce a civilian population” nor are they committed with the intent to “affect the conduct of a government by mass destruction, assassination, or kidnapping.”
But it does not take much to see how engaging in such an act of tribal disobedience could be construed as an act of “domestic terrorism.”
The first prong of the USA PATRIOT Act definition could be satisfied because law enforcement officials could charge those involved with blocking the highways with criminal trespass or obstruction of governmental administration. Given the very real possibility that individual Indians and non-Indians could be injured in the course taking such action, the tribal disobedience could be construed as manslaughter and thus an act “dangerous to human life that [is] a violation of the criminal laws of the United States or of any State.”
The second prong of the definition is more easily satisfied. Clearly, blocking interstate highways is designed to pressure American political officials to cease and desist from engaging in their harmful action towards Indigenous peoples. Such action can easily be interpreted as designed “to influence the policy of a government by intimidation or coercion.” This is even more so in light of the fact that the USA PATRIOT Act does not require that acts of domestic terrorism be committed with the intent to intimidate or coerce. Such acts need only “appear to be intended” to intimidate or coerce.
And lastly, while the Indians may deny that their territory is located within the United States, prosecuting officials will surely view the highway running through the Indian territory as located within the United States. Thus, blocking the highways will have “occur[red] primarily within the territorial jurisdiction of the United States.”
Regards
Mike
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