You know a trial verdict is shocking when even the defense doesn’t see it coming. That’s what happened on Thursday, Oct. 27, when a federal jury acquitted anti-government militant Ammon Bundy, his brother Ryan Bundy, and five of their followers of charges related to their armed takeover of a federal wildlife refuge.
“More than we could have hoped for,” J. Morgan Philpot, an attorney representing Ammon Bundy, told the The Oregonian. “Stunning,” added Lisa Ludwig, standby counsel for the defense. The rest of the courtroom—as well as domestic and international observers—were equally taken aback.
But upon closer examination, we all should have expected the Bundys and their followers to be let off the hook. They’re white and male, and enjoy the privilege that entails. Perhaps that’s why their acquittal stands in such stark contrast to the treatment of Native Americans and others now protesting the Dakota Access Pipeline in Morton County, North Dakota.
Bundy and his cohorts faced charges of conspiracy for the 41-day armed occupation of a building and surrounding land in Oregon’s Malheur National Wildlife Refuge earlier this year. Jurors were apparently swayed by the defense’s argument—that the occupation of Malheur was a legitimate protest of government overreach, protected by the US Constitution, and that it posed no threat to the public.
It’s frankly baffling that this argument worked on the jury. The occupiers who took Malheur were armed to the teeth. They called themselves a militia. The First Amendment, by its plainest meaning, extends protection to “peaceful assembly.” To say the armed seizure of public land by a self-declared militia in any way qualifies as peaceful is, at the least, an acrobatic interpretation of law.
The Bundys still face charges of assault and conspiracy, among others, stemming from a 2014 armed standoff in Nevada. But it seems clear that America is inclined to treat armed white gunmen with much more respect and deference than the Dakota Access Pipeline protestors.
The 1,772-mile pipeline will cost $3.7 billion and traverse four states. Along the way, it will slice through land claimed by members of the Standing Rock Sioux tribe under an 1851 treaty with the United States government. Members of the tribe have occupied a site slated for excavation since Monday, along with environmental activists who allege the pipeline threatens the local water supply and will violate sacred tribal grounds.
Supporters of the pipeline, meanwhile, say it will make the US less dependent on foreign oil, create jobs, and free up railways to transport other commodities. They accuse protesters of trespassing on private property.
Tensions between protesters and local police boiled over on Thursday (Oct. 28) when law enforcement flooded the area with helicopters and Humvees in an apparent show of force. Officers deployed pepper spray gas and a high-pitched siren, among other crowd-dispersing devices. Protesters responded by hurling stones and lit debris. Shots were reportedly fired at officers. (No injuries were reported.)
Over 141 protesters have been arrested by the Morton County sheriff’s office on various charges, including conspiracy to endanger by fire or explosion, engaging in a riot, and maintaining a public nuisance. Arrestees, including a number of women, have reported being manhandled by law enforcement, aggressively strip-searched, and even detained naked.
By contrast, the arrest of the Malheur seven drew considerable outrage from some elements on the American political right. Their project in quasi-sedition was rewritten into a Western fable—a hackneyed narrative of hardened cowboys standing up to big-government tyranny.
Predictably, such a narrative hasn’t been extended to the Sioux and other nations whose right to the land between Atlantic and Pacific Oceans has been unceasingly dismantled since 1492.
Now, with $3.7 billion on the line, it is likely that the Dakota Access Pipeline will move forward. Without serious intervention at the federal level, the efforts of a few hundred protesters will come to naught. The Standing Rock Sioux’s land claims will likely be ignored, as were their grandparents, and their great-grandparents; adding yet another link to a chain of treaties broken with impunity.
And yet the acquittal of the Bundys will live on in American legal precedent. It sends to a message to anti-government malcontents the country over: you are entitled to what was never yours. And you won’t face consequences for attempting to take it by force—so long as you’re white and male.
The Sioux, though clearly prepared to fight the pipeline installation to the bitter end, seem likewise prepared to accept a disappointing outcome. “We want to protect our land, and we want to protect our water,” David Archambault II, chairman of the Standing Rock Sioux, told The Seattle Times, but he added, “our concerns and interests don’t matter and this is how we have been treated for over 150 years.”