Criminal Properties

State-Corporate Crime Committed in the United States & Australia Under the Guise of Private Property Rights

The best class I took last year was one focused on "Indigenous Criminal Justice"; below is a shortened version of my final paper for that class. Have fun with this recommended Thanksgiving read!

According to the sixth article of the United States Constitution, treaties are "the supreme law of the land." Meanwhile, the United States government has “made and broken over 500 treaties” with Indigenous nations (give Frank Waln's "Teaties" a listen; it's a bop).

In Australia, the colonial government didn’t even make treaties with Indigenous peoples; it wasn’t until the Mabo decision paved the way for land claims with the 1993 Native Title Act that treaties were an option (Nielsen & Robyn 2019, p.41). In both countries the focus of treaties is land claims and ownership, and legal enforcement is overwhelmingly biased toward private property--even that illegally obtained--while state-corporate crime is committed to the detriment of Indigenous people’s health and in violation of their sovereignty or human rights.

State-corporate crime is a term used for actions that, technically legal or not, cause social harm. These crimes are committed by corporations that “are relatively free of accountability and traditionally have been able to conceal much of their power-wielding activity...Being able to exploit indigenous groups of people is one of the hallmarks of state-corporate crime” (Robyn 2009, p.95, 100). Such crimes can be either “state-initiated or state-facilitated,” but they most often appear in selective and unequal enforcement of the law (Nielsen & Robyn 2019, p. 182). Examples of state-corporate crime can be found frequently in government cooperation with and support of mining and power companies: the two I’ll be looking at more closely in this paper are the Dakota Access Pipeline in the United States (specifically the protests at Standing Rock), and uranium mining in Western Australia.

Before continuing, I should clarify the differences between personal, private, and public property as defined by the inheritors of British colonial governance in the United States and Australia (they are defined similarly in both countries). Personal property is what’s owned and used by the individual: your toothbrush, your razor scooter, and, if you’re lucky, your home. Private property, on the other hand, is owned by either an individual or a corporation, and its use generates profit: a bulldozer, a landlord’s apartment building, or a slaughterhouse. Public property is owned by the government and intended for public use: a library, a police car (this one’s complicated because the public only really gets to ride if they’re arrested), and a national park (Definition of PUBLIC PROPERTY 2015). Public property, as evidenced by my police car example, can have varying levels of accessibility, and much public land is stolen land (Nielsen & Robyn 2019, p. 192), which is far more likely to be reclassified as private than to be rematriated (Brown et al. 2017).

These forms of property ownership are important to understand because, as you may have noticed, within them there is no accounting for Indigenous relationships with place or allowance for alternate models of use. In fact, many settler-colonists justified their violent--and in the US often treaty-breaking--annexations of land with the reasoning that Indigenous people weren’t exploiting the land and its resources to its full potential. That argument--that land can be stolen for profit--is still being used today, and, more shockingly, is validated by governments. “Under the rules of many international trade agreements, such as NAFTA (the North American Free Trade Agreement), corporations can sue governments for loss of projected profits if the governments pass laws interfering with their business operations, even if those laws are for public health” (Starhawk 2005, p. 149). One corporation, Sun Belt, has already sued the government of Canada for not letting them steal a First Nation water source by privatizing it (Starhawk 2005, p. 150).

Because that's just so mind blowing to me--let me repeat it: a corporation sued one of the First Nations because they wouldn't let the company steal their water.

International and national law, and enforcement of laws, are thus obviously geared toward the creation and protection of private property. Since the rights associated with property are determined by legal strictures, they are, in colonized countries, generally biased toward private and extractive interests. I specify colonized countries because in many cases the current laws are modeled after those of the original colonizer, which were employed to maximize profit for the colonizing country--a country that may have different laws at home to protect its own citizens. Therefore the enactment of private property in colonized countries is designed to facilitate state-corporate crimes, such as dangerous mining practices on sacred land.

In a 2017 interview with Intercept, Indigenous historian Nick Estes summed up this trend, saying, “Private property always trumps indigenous land rights, and that’s just how the federal system works.” This interview that Estes did with Intercept is part of a longer piece about how local and federal law enforcement in the United States coordinated with private security to suppress the NoDAPL movement, a series of protests and encampments in 2016 that were meant to stall the development of the Dakota Access Pipeline (DAPL) where it would cross unceded land. Despite the protests, the Dakota Access Pipeline was completed and began operating in 2017.

Some background on the Dakota Access Pipeline: it’s a 1,172-mile underground 30" pipeline that transports crude oil from the Bakken/Three Forks area in North Dakota to Patoka, Illinois (Dakota Access Pipeline Facts 2017). Though it was originally designed to run an alternate course, the Energy Transfer Partners rerouted DAPL in response to concerns that a spill could contaminate the main water source for a major city. The new, and current, route of the pipeline now crosses unceded, sacred Lakota land and endangers, instead, the water sources of the nearby Standing Rock Sioux reservation; this adjustment reflects the systemic categorization of Indigenous land as wasteland (or wasted land). This categorization continues to wreck violence on colonized people, as can be seen in reservations being used as weapons testing areas or dumping grounds for toxic nuclear waste because of the popular idea that this land is empty--again, a wasteland (Sturgeon 2009, pp. 95-97).

So, with risk assessed and route thereby rerouted through wasteland, the Energy Transfer company obtained legal permits and bought the land surrounding pipeline construction, making it their private property. In response to NoDAPL protests, the Energy Transfer Partners wrote that:

Their [Water Protectors’] actions deny private property rights and freedoms to the landowners ... and deny American citizens and businesses the energy they need to produce jobs and build a vital and healthy economy. We will continue to defend the rights we have been granted through proper and legal venues ... (Dakota Access Pipeline Facts 2017)

The history of this land, though, calls the Energy Transfer company’s claims of legality into question. According to the Fort Laramie treaties of 1851 and 1868, the land should still be controlled by the Great Sioux Nation. These treaties can only be amended by Congress and, legally, should not have been left to court rulings (Nielsen & Robyn 2019, p. 59). The land is still unceded and was stolen from the Great Sioux Nation by settlers through squatter rights. Furthermore, the company’s acquisition of the land is dubious because under North Dakota law, corporations are blocked from buying agricultural land (Brown et al. 2017).

Though dubious, the government backing of unceeded land being classified (and protected) as private property is unsurprising: historically, “colonial governments committed fraud and theft and aided and abetted the settler-colonists to commit fraud and theft--not to mention murder” (Nielsen & Robyn 2019, p. 64). This support of fraud, theft, and violence is, as seen at Standing Rock, not contained to history, and Indigenous people, both Sioux and supporters from around the country, will not stand for it.

The NoDAPL movement had several encampments and many protests, but one of the most notable was Camp Treaty, where activists set up teepees and a sweat lodge--as well as many tents--directly in the path of the DAPL as it was being constructed. On October 26, 2016, federal agents teamed up with local law enforcement and the company’s private security guards to dismantle the camp so that building could proceed. Mekasi Camp Horinek, a member of the Ponca tribe from Oklahoma, challenges the dismissal of broken treaties and “Indian Wars” as a thing of the past as he reflects on that day:

I wanted the world to see this militarized force coming in like it’s the 1800s with their gatling guns and their advanced weaponry; I wanted pictures of them slashing those teepees; I wanted pictures of them pulling open those teepees and arresting families. (Brown et al. 2017)

Horinek got what he wanted: the world saw images of law enforcement officials and private security side by side at Standing Rock as they blasted protesters with pepper spray and rubber bullets and water canons in freezing temperatures (Bubacz & Geiser 2016).

The world watched the government value a company’s ability to construct something faster over the physical and future safety of its citizens. They saw legality defined and defended for the potential of profit rather than the prevention of harm. Since DAPL’s construction, there has already been an oil spill, and though a judge ordered the DAPL shut down in July of 2020 due to a violation of an EPA regulation, it is, legally, very likely able to resume operation (Noor 2020).

Using the law to protect private profit rather than prevent public harm is hardly unique to the United States. Such state-corporate crime is also evident in the Australian parliament's handling of uranium mining in Western Australia. Though the Australian parliament reported a “devastating impact of uranium mining” on Indigenous populations, “with Aboriginal tribes inhabiting land that has massive amounts of uranium underneath, they can plan on mining to proceed” (Nielsen & Robyn 2019, p. 195; 193). Again, land that is occupied by Indigenous people is depicted as wasteland while simultaneously an opportunity to extract immense profit.

The way Indigenous people live on the land and use it is systemically devalued so that private property use can receive stronger protections. Elizabeth Povinelli writes about several examples of this in Australia:

In Western Australia, the government proposed legislation that would restrict the meaning of sacred to “devoted to a religious use rather than a place subject to a mythological story, song, or belief” and would charge AU $100,000 compensation and twelve months’ imprisonment for damage to an Indigenous site as compared to AU $1 million compensation and two years’ imprisonment for damage to a non-Indigenous site. (2016, p. 32)

Vandalizing a mining company’s bulldozer, then, could potentially get someone in Australia more jail time than blowing up the physical manifestation of a Dreamtime ancestor or polluting a major river.

Indeed when Australian companies pollute and endanger Indigenous peoples’ health, the action’s capacity for financial enrichment is often prioritized over its capacity for harm. Or, at least, for it’s harm to Indigenous people’s lives: in the case of Cameco’s Yeelirrie uranium project, “What actually stopped the project was the EPA’s concern about harming the area’s subterranean fauna, a legitimate concern, but somehow anticlimactic compared to the threat of a catastrophic accident possibly contaminating thousands of people as uranium oxide is transported on state roads” (Nielsen & Robyn 2019, p. 194). Uranium’s capacity to harm Indigenous people is well documented. Exposure can cause several types of cancer and some unexplained illnesses, and the 1997 Australian parliament report called uranium mining’s impact on Aboriginal people “deplorable” (Nielsen & Robyn 2019, p. 195). Nevertheless, the parliament persists in granting mining rights to companies.

That’s not to say there is no hope. There are Aboriginal groups who have been fighting uranium mining for fifty years. After the win with Cemco’s case in Yeelirrie, activist Kado Muir said “The message that we have is by standing strong for country, we’re able to show that the mining industry doesn’t always win and that Aboriginal people who stand up for their country can succeed” (Nielsen & Robyn 2019, p. 194). With the Native Title Act, they’re also able to apply for land claims and call land their own to protect.

Likewise, Water Protectors in the US consider the 2020 ruling to shut down DAPL a win, and Indigenous groups continue to resist the degradation and theft of their land. Since the laws and structures of settler-colonial governments are inclined toward upholding damaging models of private land ownership, many Indigenous activists across Turtle Island--and the world--support the Land Back movement as a reparative alternative. According to the Lakota People’s Law Project:

The land that Indigenous people stewarded, that has since been occupied, cannot be converted into a numerical value. There is no acceptable price for the Black Hills, and monetary reparations will never be enough. The Land Back movement calls for a much deeper reckoning. This approach to addressing historical injustices fundamentally rejects the premise of land ownership and confronts colonialism head-on. Opposed to the traditional nation-state models, for Indigenous communities, natural resources and land are not commodities that exist for the benefit of the individual or collective. (“#LandBack is Climate Justice” 2020)

The Land Back movement has been gaining momentum and legal precedence in the US, especially since the Supreme Court decision in July of 2020, which ruled that nearly 3 million acres of land in Oklahoma are still Native American land, but it is also a generations old movement fighting back against state-corporate crimes and aiming to heal their repercussions. I’ll leave you with two writings: the LandBack manifesto, and an excerpt from Dine poet Lyla June Johnston’s poem “Dawn.”

Land Back

It is the reclamation of everything stolen from the original Peoples.

It is a relationship with Mother Earth that is symbiotic and just, where we have reclaimed stewardship.

It is bringing our People with us as we move towards liberation and embodied sovereignty through an organizing, political and narrative framework.

It is a long legacy of warriors and leaders who sacrificed freedom and life.

It is a catalyst for current generation organizers and centers the voices of those who represent our future.

It is recognizing that our struggle is interconnected with the struggles of all oppressed Peoples.

It is a future where Black reparations and Indigenous LANDBACK co-exist. Where BIPOC collective liberation is at the core.

It is acknowledging that only when Mother Earth is well, can we, her children, be well.

It is our belonging to the land.

Hozho is the prayer that carried us

through genocide and disease,

It is the prayer that will carry us through global warming

and through this global fear that has set our hearts on fire.

This morning my grandmother is teaching me

that the easiest (and most elegant) way to defeat an army of hatred,

is to sing it beautiful songs

until it falls to its knees and surrenders.

References

Brown, A., Parrish, W., & Speri, A. (2017, October 27). Law Enforcement Descended On Standing Rock A Year Ago And Changed The DAPL Fight Forever. The Intercept.

Bubazc, K., & Geiser, L. (2016, November 21). “Dramatic Photos Show Dakota Pipeline Protesters Clash With Police In Freezing Weather.” buzzfeednews.com.

Dakota Access Pipeline Facts. (2017).

Definition Of PUBLIC PROPERTY. (2015). The Law Dictionary.

Johnston, L. J. (2017, September). “Dawn.” As Us.

“LandBack Manifesto.” (n.d.). landback.org.

Nielsen, M., & Robyn, L. (2019). Colonialism is Crime. Rutgers University Press.

Noor, Dharna. (2020, July 6). “Judge Shuts Down Dakota Access Pipeline.” GIZMODO.

Povinelli, E. A. (2016). Geontologies. Duke University Press.

Robyn, L. (2009). Native Americans and Uranium Mining as State-Corporate Crime. In M. Nielsen & R. A. Silverman (Eds.), Criminal Justice in Native America (pp. 92–113). University of Arizona Press.

Starhawk. (2005). The Earth Path: Grounding Your Spirit in the Rhythms of Nature. HarperOne.

Sturgeon, N. (2009). Environmentalism in popular culture: Gender, race, sexuality, and the politics of the natural. Tucson, AZ: University of Arizona Press.

Waln, F. (2017, February 9). Treaties [Song]. RPMfm.

“#LandBack is Climate Justice.” (2020, October 14). Lakota People’s Law Project.