On December 23, Black Lives Matter was greeted at the Mall of America in Bloomington with a heavy police presence, after a judge granted the mall a restraining order against three main organizers.
Ten days later, on January 2, a self-identified militia commandeered a federal wildlife refuge in eastern Oregon. Despite being armed to the teeth and announcing their willingness to “kill or be killed,” law enforcement has allowed the occupation to continue for several weeks, even allowing the militia to come and go for supplies.
What could be so different about these two groups? For starters, what they’re protesting. Black Lives Matter (BLM) organized in response to the disproportionate deaths of unarmed people of color at the hands of police. In Minnesota, BLM is responding to the November 15 death of Jamar Clark, who witnesses say was handcuffed when police shot him in the head, execution-style.
The militia in Oregon organized in response to not being allowed to graze their cattle for free on federal land. Their occupation of the wildlife refuge is specifically in response to an arson conviction against two Oregon ranchers who burned federal land.
There’s also the fact that BLM is led by African-Americans, while the militia is entirely white, has expressed a racist ideology, and may be trampling on thousands of artifacts that belonging to the Paiute Tribe.
Not that police should raid the Oregon encampment with guns blazing, but police violence is unequal across racial lines.
The Mall of America is routinely hostile to black or Native American groups, while cheerfully allowing white “flash mobs” to assemble for an impromptu performance with no repercussions whatsoever. White kids are welcome to disrupt commerce (or establish an armed compound), but if your skin is darker, you need permission.
On December 30, 2012, Idle No More, a Native-led group seeking tribal sovereignty and enforcement of treaty rights, organized a flash mob “Round Dance,” a group dance performed to Indian music. Despite having just allowed a white flash mob of Christmas carolers to perform without a hitch, the mall’s response to the Round Dance was swift and fierce. In a threatening letter to Idle No More, mall authorities said they would not allow another Round Dance on mall property.
“There’s an issue,” said Idle No More organizer Patricia Shepard in a public statement, “when you have white people going in there, singing choir songs and white Christian songs...but we are not given that same opportunity to go in there and sing our songs.”
A similar event was planned for December 31, 2013, but this time, the mall had been tracking their plans. Two of the organizers, Shepard and Duluthian Reyna Crow, were arrested the moment they stepped on mall property.
Shepard and Crow were convicted of trespassing. Shepard is appealing, arguing that the 1837 Treaty of St. Peters allows for performance of Native traditions, such as the Round Dance, anywhere in ceded territory.
The mall has so far argued these rights only exist on public property. Triple Five Group, which owns the mall, is heavily invested in mineral and other extractive industries, which Idle No More objects to. This may partly explain why the mall was so eager to shut them up.
The question of whether the mall is public space arose again a year later when Black Lives Matter organized a “die-in” in the mall’s rotunda on December 20, 2014. Twenty-five protesters were arrested for lying down on the floor to represent the bodies of those killed by police.
BLM accused mall security of creating fake Facebook accounts in order to infiltrate the group’s planning and obtain a restraining order in 2015. But BLM double-outsmarted them on December 23, revealing that the mall plan was a decoy all along, when the group spontaneously occupied the Minneapolis-St. Paul Airport for 45 minutes.
So, if you’re white, you can take federal land at gunpoint—with no response at all from police—but if you’re black and want to draw attention to the hundreds of unarmed black people killed by police, you will be met immediately with riot gear and a restraining order.
There is a Supreme Court precedent for the idea that shopping malls have the “essential characteristics” of public space for First Amendment purposes (Marsh v. Alabama and Amalgamated Food Employees Union v. Logan Valley Plaza). The Supreme Court has since backpedaled on those decisions, but states like California and New Jersey have found that their state constitutions do not allow functionally public spaces to completely prohibit free speech, despite having a private owner.
Ultimately, the difference between the police response to the Oregon militia versus Black Lives Matter illustrates the very police brutality and structural racism that BLM is seeking to end. The Mall of America’s inconsistent response to flash mobs highlights how various systems of oppression are tied to American consumerism. As BLM organizer Kandace Montgomery put it, “The [mall] is the coliseum of capitalism, the perfect symbol of how money and resources are misallocated in this state.”
Grady McGregor is a Duluth native and a senior at Wesleyan, pursuing a degree in Anthropology and East Asian Studies. His interests include labor relations, tennis, and finding a sauna anywhere.