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Is There a Distinctive Western Rural Culture?

Is There a Distinctive Western Rural Culture?

excerpted from The Rise of Urban Archipelagoes in the American West: A New Reservation Policy? by James R. Rasband, Environmental Law, 31: 1, 2001.

Instead of contending that the rural West is a backward culture in need of moral correction, other preservation advocates contend that Moab and other rural Western communities simply do not have a traditional culture to lose. As they see it, the idea of a distinct rural, cowboy culture is a myth.(242) Although some aspects of the West’s cultural narrative may be myth, suggesting that the rural West has no distinctive qualities seems just as inventive. The wide open spaces and soaring mountain ranges, the parching aridity,(243) and the endless acreage of sagebrush, pinion pine, and juniper are more than just the geographical aesthetics that attracted so many of us to the West. There is, as Ed Geary remarked in his study of Utah’s high plateau country,

a fundamental difference between inhabiting a landscape and coming to it as a visitor.... To be a native of a place like Escalante is a kind of fate, unchosen, inescapable. The scene of one’s first consciousness--the shape of the horizon, the quality of the light, the taste of the air--forms the baseline of reality.(244)

This sense of place, the sense of being rooted in a geographical setting,(245) helped create the distinctive qualities of the rural West. Distance and isolation dictated that the residents rely upon their families and one another to help with the hard work of farm and ranch.(246) It also caused rural residents to draw together for sociality and companionship, resulting in a strong tradition of volunteerism and participation in community affairs.(247) Churches became not only places of worship but also of recreation, education, and charity; local high schools became centers of community activity,(248) as attested by any week-night drive on the rural highways of the West, where high school sports are the primary fare. Critics of the idea of a distinct Western culture would be quick to point out that modern society and technology have long been making inroads on all Americans’ sense of place, including those in the communities of the rural West. Residents of the rural West travel outside the region with ease, eat the same food, watch the same videos and television shows, and root for the same sports franchises as residents of other parts of the United States.(249) Even if the West at one point was culturally unique, critics might say, it is no longer.(250) It is hard to dispute that the culture of the rural West is a diminishing resource, but my perception is that a sense of place still animates the rural West to a greater extent than elsewhere. This is particularly true of those communities primarily dependent on ranching and agriculture whose families often enjoy multigenerational ties to the land.(251) This conclusion may be a bit romantic, but as Charles Wilkinson has remarked: “Objectively justified or not, the West is a place where romance is unavoidable fact, a place you cannot talk about, cannot think about, without an overlay of romance."(252)

Perhaps more important than what commentators think about the distinctiveness of the rural West is what rural Westerners think. And the evidence is strong that many, if not most, view their way of life as distinctive and jeopardized. Witness the plethora of books and articles on the demise of the rural West.(253) If rural communities value their distinctiveness, isn’t that some reason to consider their claims regardless of definitional disputes? Given the nineteenth century’s devaluation and demolition of cultural distinctiveness, isn’t there danger in being so certain about a cultural valuation?

“COWBOYS AIN’T INDIANS; BUFFALO AIN’T COWS"(254)

Some will surely be quick to point out that even if the rural West has distinctive qualities that may be said to rise to the level of a culture, it is surely not as real or unique as the cultural heritage of Indian tribes.(255) Professor Dan Tarlock, in an essay titled Can Cowboys Become Indians? Protecting Western Communities as Endangered Cultural Remnants, explores the question of whether rural communities in the West should receive some of the same cultural protections as Indian tribes. Initially, he observes that cultural claims of rural Westerners have not been given much credence “because we recognize cultural rights almost exclusively to protect defined religious groups or aboriginal minorities with non-Western value systems from oppression by the dominant culture; not to protect one segment of the dominant culture from another."(256) Tarlock argues, however, that with post-modernism’s recognition that culture is a construct,(257) the distinctive culture claims of rural Westerners, who dwell in what he terms “at-risk” communities,(258) are “more legitimate than many have assumed."(259) He concludes that even if the distinctive culture claims of rural Westerners are different and not as strong as those of Indian tribes, their claims have enough merit that they should be “factored into efforts to re-envision the Western landscape and the legal institutions that will develop to manage and sustain this vision."(260)

Professor Tarlock focuses on the comparison between present-day Indian tribes and rural communities rather than on the historical analogy between our conduct today and that of our nineteenth century predecessors that is the focus of this article, but he has it about right.(261) Professor Tarlock is correct, for example, that rural Westerners do not have a history of oppression. Indeed, they participated in the dispossession of the Indian tribes and have long been politically powerful in the West. But the tribes’ history of oppression only began with the first white settlement of the West. Moreover, the political power of rural communities has been dissipating since Baker v. Carr,(262) and the aggregation of voters in the urban archipelagoes of the West has generally reduced rural interests to a disfavored political position.(263) Even in historical context, however, the rural West’s claims to cultural identity do not seem as powerful as those of Indian tribes, particularly given the absence of blood ties and the pervasive influence of popular culture in the West. The rural West’s culture claim may not be as strong, but it is not insignificant. Even though tribes’ ties to their land date from time immemorial, that should not devalue the real ties to the land of some communities in the rural West which have families whose ties to the land go back six or seven generations.(264)

The questions about the analogy between Indian tribes and rural communities in the West go beyond the issue of whether the rural West has an equally distinctive culture. A number of other legitimate concerns arise with respect to whether the analogy works. Initially, it must be recognized that whatever pain is caused by the economic and cultural dislocations in the rural West, it pales by comparison to the suffering and hardships faced by Indian tribes. If ranchers and other commodity users are forced off the public lands to which they have become attached and into the urban archipelagoes and Moabs of the West, at least they can choose where to go and are allowed to live with relative dignity.

Another distinction is that certain components of the rural economy have been upheld by federal subsidy, which was not the case for Indian tribes in the nineteenth century. The mining law requires only the barest of payments for the right to locate valuable minerals on the public lands(265); the fees charged for grazing on the public lands are generally below market price(266); and timber on the public lands is often sold at prices below the federal cost.(267) It is one thing to encourage the demise of rural communities by stripping them of rights and privileges; it is quite another to facilitate that demise by ceasing to subsidize certain public lands uses.(268) That said, the subsidies, particularly for public lands ranchers--the group best identified with a distinct rural culture--are not that large,(269) and hardly distinguish commodity interests from other sectors of society. Moreover, if rural Western communities established themselves as a result of federal subsidies, it is only because they responded to the national goal of settling and developing the West.(270)

Whether rural communities have reason to rely on subsidy is a smaller part of a larger issue, namely whether rural communities have any right to rely on the continued use of the public lands. Some may believe that this issue is what separates current public lands communities from the Indian tribes of the nineteenth century. Indian tribes, whose presence preceded that of the federal government, had a valid claim to title that the United States, via the discovery doctrine,(271) failed to honor; whereas rural communities have no legitimate property interest in the public lands. Removing rural communities from the public lands is different, the argument could be made, because their use of the public lands has always been at the sufferance of the public. This distinction has some merit, but ironically, to make the argument is in some sense to make the analogy.

It is important to recognize that in some instances rural residents do have property rights in the public lands. Unpatented mining claims,(272) water and ditch rights,(273) and R.S. 2477 rights-of-way(274) are examples. But with respect to the largest and most frequently trumpeted property rights claim of rural communities--namely a property right in grazing allotments--it is accurate to say that there is no private property interest in the public lands.(275) The reason there is no property interest is what makes the analogy interesting. Although those who adhere to the Lockean notion that property is an inalienable right(276) might disagree, most others would contend that property rights exist because the state chooses to recognize them.(277) Traditionally, long-established ties to particular land have been a key element in the determination of a property interest; witness the rules of adverse possession.(278) In the case of Indian tribes, however, the United States chose not to recognize their long-established ties to the land, except to permit use and occupancy until Congress decided upon purchase or conquest.(279) In the case of grazing allotments, the United States has likewise chosen not to recognize ranchers’ historical ties to the land, except to permit grazing until BLM decides otherwise under its land use planning procedures.(280) Thus, it does not distinguish the two removal policies to argue that tribal property rights could have been recognized but those of rural communities could not. In fact, both are the result of a positive law determination.(281)

Describing the United States’s allocation of the tribes’ property rights as a question of positive law is not intended to ignore the question whether the United States had any jural or legislative authority over the tribes as separate sovereigns. The argument that the United States had no such power is, however, a natural law, inalienable rights argument.(282) To the extent natural law is the basis of a criticism of the analogy between the two communities, it does not make sense to distinguish rural communities’ claim to a property interest in the public lands on the positive law strength of those claims. Rather, rural communities’ claims would need to be judged on the same basis, namely whether rural communities have the sort of distinctive culture and longstanding ties to the land that merit some sort of recognition. As discussed above, the answer appears to be that the tribes had greater cultural distinctiveness and longer ties to the land but that the distinctiveness and rootedness of rural communities is not inconsequential.

Of course, the positive law status of ranchers and rural communities is not unrelated to the strength of their natural law claim because the determination that ranchers would have no property rights in the public lands adjoining their communities was arguably made before they arrived(283); whereas the determination for tribes came after. Thus, public lands users today do not have as strong a reliance argument as did the tribes in the nineteenth century. But just as was the case with the distinctive culture question, to say that rural communities’ reliance interest is less than that of the Indian tribes does not mean that rural communities can assert no reliance interest at all. That reliance comes not only from long use but also from the fact the federal government had long encouraged rural community use of public lands as a part of federal public lands policy.(284) Despite the legal doctrine denying them property rights in their grazing lands,(285) ranchers can also point to a longstanding federal practice of renewing their permits(286) and the promise in the Taylor Grazing Act that their grazing privileges will be “safeguarded,” albeit “so far as consistent with” the other provisions of the Act, including the denial or “any right, title, interest, or estate in or to the lands."(287) In the end, even if the signals have been mixed, it is hard to blame rural communities for coming to rely upon their ability to continue using the public lands. If that reliance interest is not as pristine as that of Indian tribes, it still cannot be easily dismissed.

A final distinction between the two removal policies is that unlike the de jure removal and reservation policy of the nineteenth century reflected in statutes, treaties, executive orders, and judicial decisions, the move today from rural communities to urban archipelagoes and gateway oases is only partly de jure and often the de facto result of a variety of economic realities and social preferences. In contrast to the Indian tribes, ranchers and commodity users are not often being forced off the public lands. Rather, they are leaving of their own accord in pursuit of greater economic opportunity.(288) The decline of the rural West is not solely attributable to federal public lands policy. It is also a result of markets and technology that for over a century have imposed a downward pressure on employment in rural communities.(289) The mining, logging, and farming industries do not produce the same number of jobs they did fifty years ago, because they do not require the same number of employees. Technology has rendered many tasks obsolete.(290) Economic dislocation in the rural West is not a new phenomenon,(291) and it will almost surely continue, regardless of whether the law continues to shift in favor of preservation.

That said, change and economic dislocation in communities dependent on public lands has not all been de facto. It has also been de jure. As discussed above, during the last forty years, the law has responded to the majority’s demand for preservation and removal by limiting or eliminating commodity use on significant portions of the public lands.(292) Moreover, as discussed in more detail below, during Secretary Babbitt’s tenure as Interior Secretary, this pattern has accelerated.(293) It is precisely this de jure removal effort that prompts the analogy to nineteenth century Indian policy.

In sum, although a number of potentially legitimate questions could be raised about the analogy between the two removal policies, the similarities between the two policies remain significant. The current policy of removal for preservation is not as egregious as the removal for settlement and development in the nineteenth century, nor is it as direct as the removal for preservation policies advocated in other countries of the world where indigenous peoples have been the target.(294) Nevertheless, the similarities between our current and our nineteenth century removal policies should be sufficient to prompt a critical examination of our approach to enshrining preservation and recreation as the new dominant uses of the public lands.

In Fire on the Plateau, Charles Wilkinson argues that the history of the American West has been one of “conquest by certitude."(295) His conclusion rings true with respect to federal public lands and Indian policy in the nineteenth century. Americans were confident in the moral, economic, and scientific wisdom of manifest destiny. Americans knew the best use of the public lands and what was best for the Indians who dwelled there. The tougher question is whether Professor Wilkinson’s conclusion is an equally apt description of the current shift to preservation and recreation. Is that shift simply the latest chapter in a history of conquest by certitude? The purpose of the analogy is to make us wonder. Can we confidently declare our desire to preserve the public lands is more altruistic than the desire of our nineteenth century predecessors to settle and develop them, particularly when a significant, if not the foremost reason for setting aside those lands is to provide recreational and scenic amenities, both of which have significant negative impacts? Can we be so certain that removing commodity users from the public lands in favor of preservation is in the best interests of the adjacent rural communities? Are we sure the distinctive characteristics of the rural West and the residents’ bonds to the land are not worthy of some recognition? I believe the answer to these questions is no. And if we cannot be certain that our new public land aspirations are so much more noble than those of our Nineteenth century counterparts, what should we do differently?

Posted by Michael L Umphrey
on 11/10 at 03:39 AM
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