THEFT IS PROPERTY! RADICAL AMÉRICAS A SERIES EDITED BY BRUNO BOSTEELS AND GEORGE CICCARIELLO- MAHER THEFT IS PROPERTY! Dispossession & Critical Theory Robert Nichols Duke University Press Durham & London 2020 © 2020 Duke University Press This work is licensed under the Creative Commons Attribution- NonCommercial-NoDerivatives 4.0 International License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-nd/4.0/. Printed in the United States of Amer i ca on acid- free paper ∞ Designed by Matthew Tauch Typeset in Garamond Premier Pro by Westchester Publishing Services Library of Congress Cataloging-in-Publication Data Names: Nichols, Robert, [date] author. Title: Theft is property! : dispossession and critical theory / Robert Nichols. Other titles: Radical Américas. Description: Durham : Duke University Press 2020. | Series: Radical Americas | Includes bibliographical references and index. Identifiers: lccn 2019013470 (print) lccn 2019981358 (ebook) isbn 9781478006732 (paperback) isbn 9781478006084 (hardcover) isbn 9781478007500 (ebook) Subjects: lcsh: Indians of North America—Land tenure. | Indians of North America—Claims. | Indians of North America—Legal status, laws, etc. | Indigenous peoples—Land tenure—North America. Classification: : lcc e98.l3 n534 2020 (print) | : lcc e98.l3 (ebook) | ddc 970.004/97—dc23 lc record available at https://lccn.loc.gov/2019013470 lc ebook record available at https://lccn.loc.gov/2019981358 Cover art: Donald F. Montileaux, Con.Fron.Ta.Tion, 2013. Courtesy of the artist. This book is freely available in an open access edition thanks to TOME (Toward an Open Monograph Ecosystem)—a collaboration of the Association of American Universities, the Association of University Presses, and the Association of Research Libraries—and the gen- erous support of the University of Minnesota. Learn more at the TOME website, which can be found at the following web address: openmonographs.org. This work is dedicated to my mother. This page intentionally left blank CONTENTS Acknowl edgments ix Introduction 1 One ​ · ​That Sole and Despotic Dominion 16 Two ​· ​Marx, after the Feast 52 Three ​· ​Indigenous Structural Critique 85 Four ​ · ​Dilemmas of Self- Ownership, Rituals of Antiwill 116 Conclusion 144 Notes 161 Bibliography 203 Index 225 This page intentionally left blank ACKNOWL EDGMENTS This book was written in two very dif er ent locales; it bears the marks of both. It was initially conceived while I was serving as an Alexander von Humboldt Fellow in the Department of Philosophy at the Humboldt Uni- versität zu Berlin (hu). I am especially grateful to Rahel Jaeggi for her gen- erous support, to Martin Saar and Eva von Redecker for their friendship and intellectual acumen, and to the entire colloquium on practical philoso- phy at hu for the community they provided during my years in Berlin. In the fall of 2015, I joined the Department of Po liti cal Science at the University of Minnesota, Twin Cities. Since then, I have been enormously fortunate to work in a very supportive department. I owe particularly large debts to my two extraordinary po liti cal theory colleagues: Nancy Luxon and Joan Tronto. I also feel very lucky to work at an institution that takes Indigenous politics and scholarship so seriously. In 2017–18, I participated in a yearlong Sawyer Research Seminar on “The Politics of Land,” which gave me an opportunity to work with a truly interdisciplinary group of fac- ulty members and gradu ate students, all of whom pushed the conversation in demanding and impor tant ways. I continue to reflect on many of the questions raised that year and am grateful to you all for that experience. I have presented aspects of this work at Columbia University; Humboldt Universität zu Berlin; Goldsmiths, University of London; Koç University– Istanbul; McGill University; Pennsylvania State University; Yale Univer- sity; Universität Leipzig; University of Alberta; University of British Columbia; University of California, Santa Cruz; University of Cambridge; Universität Mainz; University of Minnesota; at the savvy Con temporary Art Gallery in Berlin and Performing Arts Forum in St. Erme, France; and at the American Philosophical Association, the American Po liti cal Science Association, the Association for Po liti cal Theory, the Native American and Indigenous Studies Association, and the Western Po liti cal Science Asso- ciation. In the spring of 2018, Michele Spanò and Alice Ingold w ere kind enough to invite me to serve as visiting faculty at the École des Hautes Études in Paris. This came at the perfect time, as I was in the final stages of preparing my argument. Thank you as well to all of the gradu ate students who participated in the seminars. Financial support for this proj ect has been provided by the McKnight Land- Grant Professorship at the Univer- sity of Minnesota. The ideas presented in this book are the result of extensive conversations with dozens of people, each of whom has made significant, positive contri- butions to its content. Thanks in par tic u lar to Phanuel Antwi, Banu Bargu, Joanne Barker, Brenna Bhandar, Glen Coulthard, Jaskiran Dhillon, Nick Estes, Denise Ferreira da Silva, Mishuana Goeman, Alyosha Goldstein, Juliana Hu Pegues, Ulas Ince, John Monroe, Jeani O’Brien, K- Sue Park, Shiri Pasternak, William Clare Roberts, Audra Simpson, Jakeet Singh, Chloë Taylor, and James Tully. I would also like to acknowledge the labor of the Duke University Press staf, including the editors, proofreaders, and design team. Special thanks to Courtney Berger for her early faith in this project and to the anonymous reviewers for their insightful comments and correc- tions. Just as I was putting the finishing touches on this manuscript, I re- ceived a copy of Brenna Bhandar’s Colonial Lives of Property (Durham, NC: Duke University Press, 2018). I did not have the opportunity to incorporate the insights of her book into my own but wish to flag the importance of her work in thinking through similar concerns as t hose that animate this book. The person who has most sustained and supported me through this long pro cess is Travis McEwen. Thank you so much, again and again. Acknowl edgments INTRODUCTION The land is ours, by every natu ral right and every princi ple of international law recognized in relations among Eu ro pean powers. The land that is ours by every natu ral right was coveted by Eu ro pean powers. Seizure of our land for the use of their own people could not be justified by the law of nations or the princi ples of international law that regulate relations among Eu ro pean powers. So it became necessary to concoct a theory that would justify the theft of land. — george manuel (Shuswap), 1974 Brother! We are determined not to sell our lands, but to continue on them. The whitep eople buy and sell false rights to our lands. ​They have no right to buy and sell false rights to our lands. — sagoyewatha (Seneca), 1811 No Justice on Stolen Land. This slogan is emblazoned on pins, posters, and banners at protest events and organ izing meetings held by Indigenous peoples and their allies around the globe. It reflects the high stakes and normative force of these strug gles, and marks in dramatic fashion the ac- celeration and intensification of conflicts over land use in recent de cades. In the course of writing this book, an especially impor tant instance of this mo- bilization was taking place: thousands of Indigenous p eoples from North Amer i ca and beyond gathered at the Sacred Stone Camp in joint opposi- tion to the Dakota Access Pipeline. An estimated $3.8 billion proj ect, the pipeline is scheduled to transport between 470,000 and 570,000 barrels of crude oil per day over 1,200 miles, traversing the Missouri River imme- diately upstream of the Standing Rock Sioux reservation.1 On October 23, 2016, Indigenous activists declared they w ere enacting eminent domain on the contested lands, claiming rights from the 1851 Treaty of Fort Laramie.2 As Joye Braun, or ga nizer with the Indigenous Environmental Network, stated, “If [Dakota Access Pipeline] can go through and claim eminent domain on landowners and Native peoples on their own land, then we as sovereign nations can declare eminent domain on our own aboriginal homeland.”3 To truly understand the strug gle at Standing Rock, we need to situate it in a longer history. For, although rare, this is not the only such major gathering. In 1851 ten to fifteen thousand Great Plains Indigenous peoples met nearby with representatives of the United States. Among other agree- ments, this historic gathering produced the Treaty of Traverse des Sioux and the first Fort Laramie Treaty, securing lands for the Dakotap eoples in what was then the Minnesota Territory, as well as safe passage through “Indian country” for settlers on their way to California. By 1862, however, the United States was already beginning to abrogate its responsibilities. The Homestead Act of that year efectively opened up some 270 million acres of land west of the Mississippi for settlement by providing incentives for squatter- settlers. Subsequent encroachment on Dakota land quickly led to the 1862–64 Great Sioux Uprising. In this conflict, thousands of Dakota civilians were held in an internment camp at Fort Snelling (near where I write, in present- day Minneapolis- St. Paul), where hundreds perished of cold and starvation. Thirty- eight Dakota men w ere sentenced to death in the single largest penal execution in U.S. history.4 In 1868 a second Fort Laramie Treaty set aside large sections of Mon- tana, Wyoming, and South Dakota for the Sioux Nation, including the sacred Black Hills (one of the last official treaties made before the 1871 -In dian Appropriations Act declared a formal end to the pro cess).