by Nick Estes
Nick Estes is Kul Wicasa from the Lower Brule Sioux Tribe, a co-founder of The Red Nation, and a doctoral candidate in American Studies at the University of New Mexico.
Every year our family and relatives climb what is now called Black Elk Peak to welcome back the thunders. We are among, perhaps, thousands of Lakotas, Dakotas, and dozens of different Indigenous nations who make the annual pilgrimage to He Sapa, the Black Hills. Since time immemorial, they say, Indigenous peoples have made this journey back to the center of our universe, the heart of everything that is, to welcome home the Wakinyans, the thunder beings. The ceremony welcomes back our relatives from the West, who bring the rain, lightning, and hail. It marks the beginning of the summer ceremonial season. There is an esoteric knowledge and history of this particular place, that has taken us countless generations as a people to understand. It was here that Lakota visionary and holy man Nicholas Black Elk received his prophetic visions when he was just nine years old. John Neihardt has famously, or infamously — depending on how you look at it — transcribed that vision in the national bestseller Black Elk Speaks. Here Black Elk envisioned the horrific trials of the Lakotas under US colonialism and the coming of the seventh generation — our current generation — who will cleanse the earth and bring the Red Nations back from the edge of the abyss.
As much as it is a place tied to the continual renewal of life, it is also a site of ongoing contestation. Black Elk Peak was only recently renamed from Harney Peak, a name many found offensive. On September 5, 1855, army general William Harney commanded the slaughter of 86 Lakotas — half women and children — at Blue Water Creek. For his atrocities, the Lakotas named Harney Woman Killer. In 2015, a South Dakota board contested changing the peak’s name. Some proposed calling the peak by its true Lakota name, Hinhan Kaga Paha. Settlers found the name too difficult to pronounce because it wasn’t English. After much pressure, a federal board renamed the peak after Black Elk, in honor of his powerful vision and contributions to Lakota philosophy. Regardless of the peak’s name, Indigenous peoples still maintain a direct connection to this place and make annual pilgrimages.
Every year state park officials stop our long line of cars. We are asked to pull-over to the side of the road so as not to hold up the steady stream of tourists entering the park for hiking, biking, and climbing over the Memorial Day weekend. This year I was given the honor and privilege of talking to the park rangers. I’ve seen this scenario play out time and time again, and have memorized the script. I roll down the window and the ranger cautiously approaches my vehicle, the way highway patrolmen do.
“What’s your business?”
“This is 1868 treaty lands, which were never legally ceded according to the 1980 Supreme Court decision. We’re visiting our land. Thanks for taking care of it, but we can handle it from here.”
I smile trying to disarm her with humor. The ranger’s face turns red. She is either scared or angry or both. I can never tell. She leaves to talk to what looks like her supervisor, an older woman. The older woman approaches the car before checking my license plates. She scribbles something on a pad and then pops her head in my window.
“How many cars?” She asks.
And she walks away. I get out of the car and waive through the caravan.
“Sir, get back in your car.”
I don’t comply. She’s not a real cop, she doesn’t have a gun, I tell myself.
“We’re going through,” I say.
Now she’s angry because of the commotion we are causing. Curious tourists pop their head out their windows. She’s stands there with a firm look on her face, holding our day passes to put in our front windows so the rangers won’t tow our cars. She holds the passes like a stern parent holding car keys, reluctant to hand them over to teenager on a Friday night. I get the lecture.
“You know, you have to call-in ahead of time before we can issue passes.”
Reminding me she’s “bending” the rules before she “allows” us to enter.
“This is treaty land,” I remind her.
“But this isn’t a federal park,” she shoots back. “It’s a state park.”
Meaning: it’s land that “belongs” to the state of South Dakota, unlike the rest of the Black Hills Forests which are under federal management.
“It’s still treaty land,” I remind her, “and we didn’t sign treaties with your state.”
“Well, next time, let us know in advance.”
“Okay,” I say. “Next year, just like the last tens of thousands of years before that, we are coming here on this date like we always have. Mark your calendar so you’re not surprised. It will save both of us time.”
She scowls and shoves the passes in my hand and walks away. We move through the barricade.
This is a routine encounter bound to repeat itself so long as our “sacred site” remains under state management and jurisdiction. Most of our caravan had been to various frontline protests against the Dakota Access Pipeline or against the police murders of young Lakota men in Rapid City, South Dakota. The crossing of these barricades, however, was not an overtly political act of opposition. Or so we think. We are simply returning home to our origins but in the process are treated as trespassers.
Nevertheless, the encounter with the park rangers is loaded with meaning and history. The question posed to us is: what legal authority do we have to enter these lands without first paying for permission? The question we are taught to pose to them isn’t quite as simple: what gives you the authority to question our authority to do so? This is the premise of Shiri Pasternak’s Grounded Authority: The Algonquins of Barriere Lake Against the State. The historical and political circumstances are different but similar between Black Elk Peak and the Algonquin’s struggle against the colonial state at Barriere Lake, the topic of the book. In the long list of historic clashes between Algonquins on one side and the long list of federal, territorial, and law enforcement authorities on the other, each is not, Pasternak argues, “only a moment of conflict” but they are also instances of “how legal authority is established — far from the courts, detached from constitutional frameworks, shaping the borders of settler law” (1). In other words, each event shows jurisdiction and legal authority are literally built from the ground up through everyday encounters, or everyday forms of state-making.
To best illustrate her convincing analysis of actually existing jurisdiction, Pasternak asks us to sharpen our metaphorical guillotines — or our skinning knives — to lop off the head of the king, the sovereign, the head of state. What authority proliferates in the absence of this false symbol of power? Surely, in Turtle Island what remains and grows in the absence of the long shadow cast by colonialism are the robust forms of Indigenous legal authority: the enduring, preexisting, and co-developed authorities existing alongside imperial and colonial legalities. But from where does Indigenous authority derive? It certainly does not come from a divine ruler, the sovereign, or the most powerful political and territorial imaginary in history: the nation-state. These realms of “civilization” categorically consign Indigenous peoples to that lawless space where life is, to quote Hobbes, “solitary, poor, nasty, brutish and short.” A place we can call death. On the other hand, Algonquin political authority, Pasternak powerfully demonstrates, derives from a multiplicity of institutions, individuals, and other-than-human agents that encompass the resilience of Indigenous life in the face of constant erasure, disappearance, and elimination.
It is from the decapitated body of the king that Pasternak begins her careful autopsy of the corpse of settler sovereignty. In some ways, Grounded Authority is the Gray’s Anatomy of actually existing settler jurisdiction. The idea of a centralized state ignores the function of its organs — the various instruments, institutions, and techniques of rule that often work in tandem with each other (and sometimes against each other). The complex, and oftentimes, contradictory and overlapping regimes of law reveal settlement as an incomplete and, in the case of Barriere Lake, a failed project. Yet, zombie-like its headless corpse relentlessly assaults the Indigenous political authority that intimately manages, protects, consumes, and replenishes the life forces of other-than-human agents embedded in the land. For instance, Barriere Lake Algonquins have been, until relatively recently, under customary Indigenous governance systems. Governing authority, in this instance, is derived from an intricate kinship system and land practice.
Customary governments pose a problem precisely because the Canadian federal government possesses no power over the governing practices of Indigenous-derived leadership, and therefore no control over the social order of the communities. The solution is to cast customary governments as “lawless.” On this front, the law sanctions its own nonexistence and calls for the continual violation and subduing of Natives, especially those who appear to possess the ability of calling attention to the tenuous and precarious claims of a settler legal authority. Pasternak documents this practice of imagining lawlessness through the very material practices of jurisdiction, such as the rampant imprisonment, profiling, harassing, and criminalization of traditional band leadership. In contrast to settler legal authority, Indigenous customary leadership derives its political authority from the very earth upon which it walks, talks, and lives. Traditional leadership makes decisions about how the elaborate community trapline system prevents over-harvesting and enables the just and equitable distribution of wild game. The only way to keep this complex trapping system running is to have intimate knowledge of the land — and to know when, and when not, to harvest. It also requires knowing the animal relatives and respecting their gifts to the community. Such knowledge is not just about taking life but also about observing how it survives, sometimes for the benefit of humans or just pure interest in all its mysteries — like how a bear shits in the woods. Pasternak observes that in one Indigenous Knowledge report on the Barriere Lake:
One also learns… about the use of moose, beaver, and bears, especially for medicinal purposes —an area that is vastly under researched and poorly understood in the scientific community but is suspected to be of extreme importance to the long-term health of wildlife populations, and represents only a fraction of Algonquin knowledge on the subject. For example, the Algonquins have observed that the beaver uses yellow pond lily (cikitebak, akidimô) for its lungs, the moose uses balsam fir (aninâdik) for wounds and sickness and black spruce (sesegâdik) to help females before giving birth, bears use trembling aspen (azâdi) for a spring tonic, laxative, and dewormer, and the black bear uses multiple kinds of bark (such as the white spruce, the mountain ash, and eastern white cedar) to help with hibernation (87).
The intimate knowledge of the land isn’t just about innocent curiosity but profoundly relates to how a people survive and reproduce themselves on that land. That is why Indigenous political authority is such a threat — it is literally embedded in the land.
Highly adaptable, Barriere Lake Algonquins have over time developed a mixed economy, supplementing cash income where complete dependence on the land is impossible. The ability of the community to continue to physically reproduce itself relatively unaided by the outside world is testament to its grounded authority in the land. The taking of territory often coincides with attacks on Indigenous economies first and foremost. Indigenous subsistence hunting, gathering, and agriculture initially provided the means to effectively resist settler encroachment. By destroying subsistence economies, by separating Indigenous producers from the land and attempting to make them totally dependent on federal annuities or cash economies, the accumulation process is relaunched (again and again and again) by waging total war on the whole of Indigenous life. In the case of Barriere Lake, the attacks are primarily upon its jurisdictional authority. Perhaps severely weakened in some periods more so than others, that authority, however, has never been entirely vanquished.
Snatching away jurisdictional authority is literally about snatching the food from the mouths of Algonquins. Lack of jurisdictional power can literally be felt through the pangs of hunger. It has a real material consequence. During the mid-1990s, the Department of Indian Affairs attempted to usurp customary governance by installing a dissident faction, or an Interim Band Council, into power through — by both Canadian and Barriere Lake measures of the law — illegal means. To force Barriere Lake into submission, Canadian officials created the conditions of what journalist Charlie Angus called a “starve or submit scenario” to force the surrender of the customary government (179). Federal money and programming was cut. For more than a year, children didn’t go to school, the community lived without power, electricity, medical services, and adequate phone services. What effectively amounted to an economic embargo — which in other circumstances would be considered an act of war against a sovereign nation — denied Algonquins’ basic human rights and the ability to hunt. Their will, however, did not bend and they continued to barricade a logging road to force territorial and federal governments to honor their agreements for the co-management of forests and wildlife.
Not until the imposition of the band council system — which failed — and then a third party management system— which has also failed or is currently failing — did Barriere Lake have its autonomy thrown into crisis. In protest of these attempts to overthrow its long-held self-governance practices kept intact by a council of Algonquin Elders, the entire community engaged in brave and high-risk acts of resistance. In other contexts, removing self-determined leadership structures would be considered bald imperialism — such as “regime change” — for the purposes of gaining access to a country’s wealth and resources. (This, too, could be seen as an act of war.) The brave courage to stand up to arbitrary and violent state power inspired other acts of resistance, such as the standoff at Oka.
We are taught to view settler colonialism as a structure and not as an event. Yet, there is an eventfulness to the ways in which jurisdiction is enacted on the ground. One could say neither the multiple blockades of logging roads by the Algonquins nor the multiple attempts by territorial and federal officials to overthrow the Mitchikanibikok Anishnabe Onakinakewin system of land use and governance were stand-alone events. Rather each instantiation of either settler jurisdiction or Algonquin jurisdiction is a concentration of key elements of longer historical processes and claims to authority. The former has historically sought to eliminate the latter, while Algonquin customary governance has, despite all odds and the callous aggressiveness of an invading society, sought peaceful coexistence and even co-management of its hunting lands with territorial and federal authorities through the Trilateral Agreement system.
Grounded Authority is a rare book that you can judge by its cover. As its cover photo, Barriere Lake Algonquin youth sit with handmade placards facing a police line about a dozen yards (or meters) away. There is tension between the two lines of children and the armed white men, the physical manifestations of the colonial state. Between them is a stretch of highway: so-called no man’s land, a fabricated terra nullius under armed guard. It’s a timeless scene that occurred relatively recently — but there is no more stereotypical colonial encounter than that of the police facing down Indigenous peoples. Clearly pictured, the “threat” the police are there to manage — the Indian Problem that is out of control — are children who have been thrown into a life and death fight to have a future life on the land.
How did this come to be?
The rise of counterinsurgency tactics by law enforcement to crush Indigenous land defense movements under the powers of the Emergency Management Assistance Program (or EMAP) in Canada is eerily reminiscent of the language and intent of the Emergency Management Assistance Compact (or EMAC) in the United States. While EMAP was created to monitor and manage “civil unrest,” its powers were expanded to include the monitoring of fires and floods, or natural disasters. In the US, EMAC granted states the powers to solicit support from emergency services from different law enforcement jurisdictions around the nation to monitor and manage natural disasters, such as floods and fires. Yet, EMAC powers were used by the city of Baltimore to crush the Black uprising after the police murder of Freddie Gray and more recently the movement at Standing Rock to stop the Dakota Access Pipeline. What is revealed in both contexts of the US and Canada is that emergency management monies have become the new modes of Indigenous expropriation by deploying heavily militarized police forces against the whole of Indigenous societies to protect “critical infrastructure” such as pipelines and highways systems — in other words, to protect the international flow of capital. These tactics are nothing short of counterinsurgency: waging war against civilian populations. To mask and hide the illegality of the trespass of pipelines, roads, or capital through Indigenous territories, it is settler law that criminalizes Indigenous peoples. As a result, mainstream media, liberal “allies,” and sometimes even our own uncritically divide communities and camps into the “good Indians” versus the “bad Indians,” or around the question of tactics such as “legitimate” or “illegitimate” forms of protest, or “nonviolent” or “violent” — as if someone wakes up one day and decides they are going to engage in a violent protest. Such speculations ignore crucial questions. When we examine the cover of Grounded Authority we should be asking, what makes Algonquin children legitimate targets for police violence? What makes any Indigenous person a legitimate target for police violence? What authorizes that violence? Who pays for it?
We can think of settler colonialism, and therefore settler jurisdiction, as targeting Indigenous peoples and their political authority for elimination. But what is clear, in Pasternak’s account of things, is that the everyday enactment of jurisdiction is a form of low-level warfare — or lawfare — that targets not just humans for elimination but also nonhumans. Unlike other forms of genocide such as the Holocaust, which targeted solely humans and had a beginning and an end, settler colonialism has not ended and it targets other-than-human Indigenous kinship relations for destruction. This war is asymmetric that includes theories of collective punishment, the taking of children, the forcing of Indigenous communities to choose between their lives or surrendering or ceding their nonhuman kin, the use of native scouts and auxiliaries that are coopted by colonial governance systems, the use of reserves as spaces of containment and the concentration (or sometimes removal) of Indigenous leadership, the targeting of socio-economic institutions as the bases for Indigenous autonomy, and the impulse to “civilize” in order to pacify. It is this force, this power, that some seek or are sometimes forced to enter into relations with — which is their prerogative and authority to do so. But it begs the question, how does one reconcile its everyday relations with a highly militaristic, white supremacist empire? Can there ever be reconciliation with the other-than-human worlds as well — the other targets of this colonial machinery?
These are questions that Indigenous peoples elsewhere on Turtle Island are looking to First Nations for answers as we watch their state-led reconciliation process unfold — for better or worse. Regardless of that process, I am deeply inspired by the Barriere Lake struggle and the profound knowledge they have imparted to help us understand Indigenous jurisdiction struggles; and maybe there is something else to be learned about possible pathways to Indigenous freedom and peaceful coexistence other than further ensnaring Indigenous peoples in the traplines of state power. What Pasternak calls the “steady accretion of restrictions” to Indigenous self-determination (64), which is simultaneous to the layering of colonial authority that governs the land by carving out spatial patterns of land use and population control, should be, in my view, contrasted against another kind of accretion that makes the confinement and the endgame of elimination an impossibility.
The selection of Algonquin customary leadership is for life, since it takes a lifetime of accumulated knowledge about the land to be a successful leader. This pushes against the temporal framings of liberal democracies and the instantaneous election processes and the overthrow of Indigenous leadership by settler decree. The slow — and sometimes frustrating — nature of Indigenous political processes is, too, a steady accumulation of ways of knowing, experiencing, and practicing relationality to human and other-than-humans. This accretion is a radical consciousness, deeply embedded in history and place and cannot be measured or simply overturned by colonial fiat. This accretion is centuries-old and carries with it the memories of past, present, and already forthcoming struggles against the state. It pushes back not only against the spatial order of settler jurisdiction but also its self-possessed temporality as an enduring feature of the land. While never perfect but always perfecting, it provides the approximation of peace and freedom, inspiring others to continue the fight. And it cannot be jailed, beaten, pepper-sprayed, or slandered into submission.
The words of Marylynn Poucachiche best illustrate the waiting game Algonquins have won against settler jurisdiction. In October 2009 Poucachiche faced off with riot police in one of the many struggles at the small reserve at Barriere Lake. Her words speak to the farsightedness, long-memories, and deep connections to the lands — the grounded authority — that most settlers (and sometimes even ourselves) are conditioned to forget: “Look at how much money they spend on you guys . . . You want to keep us on this reserve? Tiny little reserve? Well, we’re not going to stay here. You guys, you can stand here for maybe twelve hours. Us, we can be here another five hundred years” (221).
[The image above is from the video, “No Mining – Algonquins of Barriere Lake Land Defenders Camp – GroundWire News” via Organizing for Justice]
 See John G. Neihardt, Black Elks Speaks: Being the Life Story of a Holy Man of the Oglala Sioux (Lincoln: University of Nebraska Press, 2004).
 Shiri Pasternak, Grounded Authority: The Algonquins of Barriere Lake Against the State (Minneapolis: University of Minnesota Press, 2017).