Whose Land Rights? Dismantling Settler Dominion

Our relationship is directly with the spirit of the land itself. Their relationship is with a man who has dominion - it is based in a feudal system.

Transcribed from the 8 June 2021 episode of This is Hell! Radio (Chicago) and printed with permission. Edited for space and readability. Listen to the whole interview:

The United States is explicitly Christian, it is explicitly colonial, and the identity of this nation is that of a colony. It’s never been an actual country, because these homelands belong to other nations, and they are under active military occupation.

Chuck Mertz: Why is it that when unarmed peaceful protesters stand up against a company that poses an environmental threat that could poison water that thousands of people depend upon, those protesters get their asses kicked by police, while armed protesters that invade and occupy a national wildlife refuge are handled with kid gloves? And why do those connected with the armed landgrabbers find themselves appointed within the Trump administration while those who are trying to protect their land end up feeling the full brunt force directed by the Obama administration?

Here to help us understand what the 2016 occupation of Oregon’s Malheur national wildlife refuge and the protests at Standing Rock have in common, what makes them different, and what both say about the history of the United States and the stories we tell ourselves about the United States of America, writer and editor Jacqueline Keeler is author of Standoff: Standing Rock, the Bundy Movement, and the American Story of Sacred Lands.

Welcome to This is Hell!, Jacqueline.

Jacqueline Keeler: Thanks for having me.

CM: You write about a Lakota person protesting in Washington DC against the Dakota Access Pipeline holding a staff and struggling with—and eventually being arrested by—a group of armed officers. You explain, “The Lakota youth who had begun the fight against the Dakota Access Pipeline had carried that staff across the country from North Dakota to Washington DC. They had run thousands of miles to request that the Army Corps of Engineers reconsider allowing the crude oil pipeline to be built just a mile north of the sole intake source of water for the reservation. The young man was not just fighting for an object but for a symbol of that prayer, that prayer a generation was carrying for the future.”

Are protests like those against the Dakota Access pipeline not only for survival and public health? Are the protests religious in nature?

JK: Yeah. In the book I describe the difference between the creation stories of an Indigenous people and that of a colonial people. Encoded into the origin story of an Indigenous people is a relationship to the land. That relationship has spiritual aspects to it, and agreements that are made between the land itself and the people. This is what makes them a people.

So in that sense, yes. In western society, concepts of religion and spirituality are really different. For most of Europe, their present religion came to them in the form of empire. It was the religion of the empire, of the emperor in Rome, and it was imposed on them as an act of force and domination. For us it’s very different. For Indigenous people, it is not the story of colonization and domination. Our spirituality comes from our relationship to the Earth itself, to the land.

For my father’s people, for the Dakota and Lakota people, our origin story as a people really begins with a meeting with the White Buffalo Calf Woman, who was the manifestation of the Great Plains itself. In that meeting there were agreements that were made. We weren’t given complete dominance over the landscape and the right to exploit as we please. We made an agreement with the land and also with the people already on the land, the Buffalo Nation in particular.

The prayer that was carried is a manifestation and expression of that relationship of kinship with the land and all the peoples already on it. So in that sense, yes, it is religious.

CM: Does Christianity, then, allow for colonialism, environmental destruction, environmental exploitation, and even the subjugation of other peoples in a way that Native religions, Native spirituality does not?

JK: In this specific case it does. The idea that this is a Christian nation based on the providence of dominion given by a Judeo-Christian god is a major part of what it means to be “American.” Recently Rick Santorum was taken to task for saying that, but the legal basis for the land itself that the United States cites to this day is the doctrine of discovery, which comes from the papal bulls of 1491 and 1550, passed by two different popes. In this papel bull it simply states that only discovering Christian nations have title to the land.

The “discoverers,” the explorers, were representing Christian governments under the dominion of the pope, so the minute they landed on our shores, the title of the land reverted to those Christian crowned heads in Europe. The only title that Native people and Native nations enjoy is that of occupation and use. This is still active law in the US; it’s the basis for the title of the United States’ claims.

This doctrine was first developed by one of the very first chief justices of the supreme court, chief justice John Marshall, and basically it’s still active law. It was cited as recently as 2005 in a decision written by Ruth Bader Ginsburg in a case contesting the Oneida Nation of New York’s right to land within the city of Sherrill, New York. It’s still active law, and in fact Marshall said that even though the United States did not exist when these papal bulls were issued, they claim the identity as a discovering nation because they are an English colony, which in England was under the dominion of the pope at that time.

It is explicitly Christian, it is explicitly colonial, and the identity of this nation is that of a colony. It’s never been an actual country, because these homelands belong to other nations, and they are under occupation. We saw this quite visibly highlighted by what happened at Standing Rock in 2016 and early 2017. There you saw the military occupation of Native lands. It was made visible to the public. This is an active military occupation.

CM: Let’s get into Standing Rock a little bit. You write, “The scenes of the raid of 1851 Treaty Camp near the Dakota Access construction corridor on October 28, 2016 did not resemble the post-racial America the Obama administration was supposed to usher in, an America where the lessons of the civil rights movement had been fully integrated into the power structure of the nation by the election of a Black man as leader of the free world.”

What does it reveal to you about the United States that even electing a Black man as president still does not fully integrate the civil rights movement into the power structure of the United States?

It’s a drought situation going on, and as we see the impacts of climate change more and more, we are going to see more of these sorts of violent standoffs.

JK: I should note, Obama is also a law professor who knows federal Indian law. This is actually pretty rare, even on the supreme court. Justice Sotomayor said that she didn’t know anything about federal Indian law until she joined the supreme court. It’s not required for judges to know, and certainly not required to pass the bar for ordinary attorneys, so it’s often law that is misunderstood. Not that it’s entirely favorable to us, but it’s better than what Scalia was doing, which was just making up federal Indian law as he went along.

There we get into the structural issue. Right now we have an amazing Native woman, Deb Haaland, as the secretary of the interior who is overseeing a large amount of the land in the United States, but the issue is a structural problem. I make an analogy about how you have to know what vehicle you are driving. Are you driving a sportscar or a combine harvester? If you’re driving a combine harvester, even if you’re in the driver’s seat and you are the chief executive, it’s still going to harvest that wheat. That’s what it’s built to do. Obama created a lot of outreach to tribes, and Biden’s administration is bringing that back: an annual meeting of tribal leaders at the white house, and of course the appointment of Deb Haaland as interior secretary. There are incredible movements too. But at the same time there is a structural problem whereby Obama was completely unaware of all this stuff going on.

On Labor Day weekend 2016 was when dogs were used to attack and bite water protectors who were trying to protect a burial site that was being dug up. This was completely ignored by the national media. The only media there was Democracy Now!, Amy Goodman live on-site. It was completely missed by Obama. He was in Asia, in Thailand. He was questioned a few days later about Standing Rock and what was going on there, and if you look at the transcript and his responses, it’s pretty clear no one had told him this was going on. No one.

This is like when dogs were used in Selma, Alabama. This would be like the president of the United States not knowing that. There’s a level at which Native people are completely invisible, and our struggles are equally invisible. It took until December for the Army Corps of Engineers to finally pull the permit that was allowing the pipeline to be built under the Missouri river.

There is a structural problem here. We can look at the larger issue of what we saw happen at the capitol on January 6, and the fact that most of the people who identify as white in this country voted for Trump. In 2016, ninety percent of white men with a high school diploma voted for Trump; that’s nine in ten. That suggests that this is a structural problem, that people who are raised within the bubble of white supremacy and white privilege are structurally unable to engage the problems that are happening today, that they are very much ensconced in privilege and thereby are voting for white supremacy.

CM: What is your hope for Deb Haaland as the secretary of the interior? How much is any success that she can have already limited by the structural situation that she’s facing?

JK: I’ve been pretty impressed so far. She’s doing a great job. But I do worry for her. She is going to be directly confronting a lot of armed rightwing groups like the Bundys. She is head of the department of the interior; she also oversees the bureau of land management in addition to the bureau of Indian affairs; she is the one they are going to be dealing with. A major issue out west, of course, is the issue of public lands and the desire by many white Republican voters to see those public lands conveyed to the states and then privatized so they can use them as they want to use them.

This is what the Bundys were talking about, and what they are still talking about. Today I’m going to be traveling down to the Klamath river here in Oregon. Ammon Bundy is once again rallying his militia folks to oppose the preeminent water rights of the Klamath tribe. It’s a drought situation going on, and as we see the impacts of climate change more and more, we are going to see more of these sorts of violent standoffs. Right now, as we speak, he is organizing.

The Klamath tribe won a historic battle in the courts recognizing their preeminent rights to the water in the Klamath river valley, and that means they get their water first and then everyone else—the farmers and ranchers—gets what is left over. This is causing more contention. Of course, having oversight over most of the public lands in the country, Deb Haaland is going to be these folks’ nemesis.

I worry about that. When I was covering the Bundy takeover in Harney country at the Malheur wildlife refuge, fish and wildlife service [a federal agency under the department of interior] employees had to be moved to other parts of the state for their own safety. They do try to intimidate and threaten them. One of the things Trump did when he was in charge was take a lot of the bureau of land management staff out of DC and move them to the local level so they could be intimidated by the local white population. Deb Haaland will probably reverse that. The tribes were not consulted on this matter and they opposed this move, but she’s going to have to reverse it, and that will be quite contentious. She’s already issued a statement that she is advising the Biden administration to restore sites like the Bear’s Ears national monument and the Gold Butte—which is right near Cliven Bundy’s area where he ranches.

CM: That reminds me of the use of mob violence that we are seeing with the Greek government, the Turkish government—we’ve been discussing this on our show recently, how governments have violent mobs that go out and do their dirty work for them, un-uniformed, so it doesn’t seem like they’re in the midst of a civil war. They just let these people loose upon the population; they reflect the political beliefs of the ruling government.

To what extent do you think the Bundys are a violent mob that reflect the beliefs of the Republican party and therefore are doing the dirty work of the Republican party?

In this ye olde Anglo-Saxon ideology, in this reading of history, they believe the sheriff is accountable to the ordinary Anglo-Saxon people of the county. They are using their colonial history, their colonial rights that they believe were promised to them, and encoding them in this false legal history, and asserting that. And they’re having some success.

JK: Very much so. Ammon Bundy and his brother Ryan Bundy came here to Oregon basically to protest the imposition of minimum sentencing guidelines. Republicans had sharpened minimum sentencing guidelines, and members of the Hammond family—the father-and-son ranchers who were convicted of arson and also of poaching—were being returned to prison to meet those new guidelines. So the Bundys came here to attempt to keep them from going back to prison. And as soon as Trump got into office he pardoned the Hammonds, and also tried to reissue their grazing permits (which were then later rejected). When the Hammonds were freed from prison, they were met there by a billionaire Republican donor who flew them home on his private jet.

They know they have the support and the ear of powerful and wealthy people in this country. But a lot of their plan—and they say this explicitly—is to invoke Waco and Ruby Ridge. In a sense they’re holding themselves hostage. Even though they’re armed, they’re daring the government to shoot them and to kill them and make them martyrs. This is part of their strategy, and it works.

When the Burns Paiute tribe did their first press conference in January 2016, they said from the get-go that if they had taken over the Malheur wildlife refuge (which used to be part of the Malheur Indian reservation), they would have been shot. There’s no way they could have come and gone and been allowed the freedom that the Bundys and their supporters were given to occupy the refuge. There is a deep connection there. The Bundys are part of a drive pushing the boundaries of privilege. I see the Bundys as asserting their colonial rights. That’s very different from Standing Rock, where they were asserting the sovereignty of the tribes as preexisting nations.

CM: Do police support people who are asserting their colonial rights?

JK: Yes, they do, in fact. I talk about the county supremacy ideology, which was developed by Cliven Bundy, the father of Ammon and Ryan Bundy who led the 2014 armed standoff in Bunkerville, Nevada, over his cattle illegally grazing there. His attorney, going back to 1993, was a woman named Karen Budd-Falon. Under the Trump administration she was appointed deputy solicitor of the bureau of land management, an agency which she had been suing under RICO statutes for twenty-five years. She sued government employees (for enforcing government regulations) under racketeering laws that had been developed to fight the mafia. And then Trump made her the deputy solicitor.

She developed this whole idea that based on Anglo-Saxon law, from before the Norman invasion, the sheriff is the most powerful person within the borders of a county. There are a lot of sheriffs who have bought into this. To be elected sheriff in this country—it’s an elected position—there’s no requirement to have any law enforcement background or legal education. Anybody can be sheriff. So there is a constitutional sheriff’s organization that claims to have several hundred members, all of whom are sheriffs—some former, and many who are sheriffs now. There is a video on YouTube, posted by the Oregonian newspaper, of Ammon Bundy having a talk with the sheriff of Harney county in Oregon—you can see the collegial thing happening. They had the sheriff of the neighboring county there very much on their side too.

So there are sheriffs who believe they have ultimate dominion within their county boundaries. They’re more powerful than the president of the United States, than congress, than the governor of the state, than the state legislature. They’re the most powerful person in the world within the boundaries of the county. This is the way they are asserting power. They are trying to enforce these made-up ideologies and leverage that to have power.

CM: Isn’t that a police state?

JK: They believe that the sheriff is accountable to the people. They formed the Harney county committee (they name all this stuff they do after the citizen’s committees that were created by the colonists during the revolutionary war), and they were going to try the sheriff for not standing with them. In this ye olde Anglo-Saxon ideology, in this reading of history, they believe the sheriff is accountable to the ordinary Anglo-Saxon people of the county. For the book I did a lot of research on Anglo-Saxon law and English common law, because they refer to it quite a bit. It’s sort of shocking. They talk about “opening the commons.”

The Bundys are of English descent, and I looked up the name Bundy itself because Cliven Bundy’s house in Bunkerville has a sign on the wall that says, “Remember what the name Bundy means.” It has a meaning based in old Anglo-Saxon feudal traditions of bound servitude, where you give your bond, you become a bondsman or a bondswoman (which is another word for slave later on). They would give their bond to a lord, like an earl or a count (counties are named after earls and counts), and they would get land to farm.

But after William the Conqueror invaded in 1066, he killed ninety percent of the Anglo-Saxon nobility and replaced them with his own people, his Norman buddies. To this day, the descendants of William the Conqueror and his friends still own most of the land in England. It’s kind of shocking. But they turned it into actual serfdom.

So at that point the Bundys became serfs, which means that they were owned with the land. This is a very different relationship to land than what Indigenous people have. Our relationship is directly with the spirit of the land itself. Their relationship is with a man who has dominion—a single man, and not even an Anglo-Saxon man but a Norman lord. There’s a real difference in their relationship to the land, which is based in this feudal system.

Of course later they were kicked off the land, when these lords decided they would make more money raising sheep and things like that. They scrubbed these villages off the English countryside and made these people homeless, and then criminalized their homelessness, and then put entire families into workhouses and sold their labor cheap to factories, which helped fuel the industrial revolution.

This is where the Mormon church first started recruiting people. They sent missions to Liverpool and Manchester where people were living in these Dickensian conditions. They recruited from people who were basically starving to death while working full time in these factories, and brought them here to America. It’s a history of dispossession. They are using their colonial history, their colonial rights that they believe were promised to them, and encoding them in this false legal history, and then asserting that. And they’re having some success.

The revolutionary war was really fought to gain access to Indian land. The Louisiana purchase, all the things that happened in the years following, would not have been possible without it. And Native nations would have had more time to develop themselves. We’d probably still have an extant Cherokee nation. The Iroquois Confederacy would probably still be here. We’d have modern Mohawk cities and language and books.

CM: While the Bundys got what they seemingly wanted under Trump, the Dakota and Lakota and their supporters did not get what they wanted from Obama. To you, what explains the success of activist politics like the Bundys and the Republican party compared to activism like that at Standing Rock within the Democratic party?

Why did the supporters of Malheur get big positions in the Trump administration, and those at Standing Rock got beaten? Especially when the Malheur protesters and their supporters are armed and clearly with far more violent intent?

JK: When we talk about the prayer that came out of Standing Rock, it’s interesting to note that two very promising colonial leaders—Deb Haaland and Alexandria Ocasio-Cortez—both went to Standing Rock and were inspired to run for congress. So there is something coming out of Standing Rock that is inspiring a new colonial leadership which I hope some day we can sit down with and renegotiate our relationship. That’s the hope.

The Obama administration was very slow to address the issue. We went through many court rulings during the standoff at Standing Rock where the courts ruled against the tribes. Legally, the Standing Rock tribe is a part of the Great Sioux Nation, and treaties are only entered into by sovereign nations under international law—the Fort Laramie treaties were actually ratified by the US senate. They are, under the constitution, the highest law of the land.

The Yankton Sioux tribe was also part of the legal suits around the Dakota Access Pipeline. The different Dakota and Lakota tribes are on very strong legal footing by invoking the treaties. However, they are not listened to. The treaty that they were referencing, and that the senate ratified, recognized the Great Sioux Nation’s right to the crossing of the Missouri river, as well as all of Morton county. But the Morton county sheriff, sheriff Kirchmeier, is the one who worked with Energy Transfer Partners, the builders of the pipeline, to mount a wholesale military assault on Standing Rock Sioux tribe with all the world watching.

CM: You write, “The opening phrase of the declaration of independence that is remembered is ‘We hold these truths to be self-evident: that all men are created equal, that they are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.’ What is forgotten is the declaration’s list of repeated injuries and usurpations by King George III cited as reasons for dissolving political bands with Great Britain, which includes this characterization of Native nations:

‘He has incited domestic insurrections amongst us and has endeavored to bring on the inhabitants of our frontiers the merciless Indian savages whose known rule of warfare is as undistinguished destruction of all ages, sexes, and conditions.’”

Is the declaration of independence also a declaration of race war? Even genocide? What happens to our understanding of the origins of the United States of America when we ignore this part of the declaration of independence?

JK: That’s a good question. I looked a lot at the declaration because the Bundys quote it so much. And what I found was a really different reading of the origins of the revolutionary war, which is often about ‘no taxation without representation.’ That line about King George III and ‘merciless Indian savages’ is referring to the proclamation of 1763, which King George III issued as part of the settlement for the French and Indian war, which is known as the Seven Years’ War in Europe and known to historians as World War Zero.

When George Washington was a young man, about twenty years old, he was dispatched by the commonwealth of Virginia with a militia to go and check out what the French were doing. Virginia at the time had claims to the Ohio river valley, which includes what is now western Pennsylvania in addition to the state of Ohio. He was in western Pennsylvania when the French were building more forts along the Ohio river to firm up their claim to the area, and he engaged in battle. In this fighting, they killed a French diplomat, which set off an international incident. It was like the start of World War One and the shooting of the archduke.

The French prevailed, and the French officers forced him to sign a letter that was written in French (he couldn’t read it) admitting guilt to killing this French diplomat. This was really the beginning of the French and Indian war, which doubled the national debts of both France and Great Britain. So in a sense, the land hunger of the colonists indebted both the British people and the French people for a lot of money. They were taxing the home country in pursuit of their own profits, and this is why they were being taxed; all these taxes were to pay for a war they started. And the very reason the British had soldiers quartered in the colonies was to stop settlers from going into Indian land and breaking the terms of the treaty—to end the war.

You don’t hear that very much, that George Washington started the first world war—World War Zero—and that it was an incredibly expensive thing for the home country. The state legislatures, the colonies, would not tax their own people to pay for the war. This is why King George III had to tax them, in order to pay for the war they started.

The desire for Indian land did not abate. After the revolutionary war, they took all of the Iroquois Confederacy, which becomes upstate New York. They got all the “northwest territories” from Ohio up to Michigan—all of these areas are suddenly part of that. This expansion west might not have happened if they had not broken free of the British. The British wanted them to stay along the coast so they could control them better. They didn’t want them going inland and taking Indian land.

So the revolutionary war was really fought to gain access to Indian land. The Louisiana purchase, all the things that happened in the years following, would not have been possible without it. And Native nations would have had more time to develop themselves. If the revolutionary war hadn’t happened, we’d probably have an extant Cherokee nation. The Iroquois Confederacy would probably still be here, controlling most of New York state. We’d have modern Mohawk cities and language and books. We’d have all kinds of things.

When they’re invoking the language of the revolutionary war, the Bundys are invoking a form of colonialism and warfare and genocide for profit.

My hope is that as the prayer of Standing Rock is carried forward and the leadership is changing, we will be able to sit down at the table and renegotiate this relationship which is so harmful to Native people.

CM: You write, “The Six Nations Confederacy had lost the hills of western New York in the revolutionary war, where Mormon church founder Joseph Smith claimed to have found the golden tablets and transcribed them into the book of Mormon using typical folk magic of the time. These were the ancient homelands of my own children’s Iroquois forebears. The landscape rich with evidence of long human occupation must have troubled Joseph Smith and other newcomers, since they had been taught everything had to fit within the history presented by the bible. This may have led to the fervor of their religious response in what came to be known as the ‘burned-over’ district.”

How much did the very existence of Native peoples here in the Americas contradict the beliefs put forward in the bible? And does that anti-Native attitude persist to this day in conservative forms of evangelical Christianity? Is Christian conservatism anti-Indigenous?

JK: Yes. We saw that with Rick Santorum’s comments, the idea there is nothing of value left from Native cultures, it’s all a Christian culture. Today we can’t appreciate what an immense challenge the history that exists outside of the bible would be, psychologically, to Americans of that time. It’s their main source. It’s the only book that they’ve read. So an attempt to shoehorn Native people into the bible was a pretty natural response.

The lands were already cultivated. Many of the roads were already there. In particular, the Iroquois Confederacy had a huge impact on the colonists. We have to understand it was an extant, very large and powerful Native nation, and it exerted a cultural and political influence on the minds of the colonists. The most famous one was of course Benjamin Franklin, who had published many of the speeches of the leaders of the Confederacy. One of his first bestsellers was translating their speeches from Mohawk into English and publishing them.

They urged the colonial leaders to unite. The Iroquois Confederacy was a confederacy of first five nations and then a sixth nation when Tuscarora joined them. It had stood there for a thousand years. Congress issued an acknowledgment of this back in the late nineties, officially acknowledging the contributions of the Iroquois Confederacy to the creation of the constitution—and of the United States itself.

Also, the women’s rights movement was deeply impacted by women in the Iroquois confederacy; women chose the leaders in the Iroquois Confederacy, men didn’t have a vote. It was all done matrilineally, through clan systems. They had a lot of legal rights that white women did not possess. In fact, Seneca Falls, New York was the location of one of the first women’s rights conferences, because women from Seneca Falls, New York saw Seneca women in the village adjacent to theirs reorganize their government, and they could see that in day-to-day life those women had rights that they did not have. If you read the speeches from Seneca Falls, you can see some of them saying, “We see that they can walk around at night and they are not raped, that their children always remember their name.”

At the time, white women were legally dead under the law, they had no legal status. Seeing another society that was living in a completely different way and challenging these accepted ideas of heteropatriarchy made it possible for them to think they had the right to demand these things.

When we talk about modern society and we talk about bringing democracy overseas, or women’s rights to other countries, we’re talking about things that are the products of this colonial cross-pollination with Indigenous nations.

CM: If this is a battle over narrative, can that battle over the narrative be won by those who support Native peoples? We are taught the revolutionary war was a war for democracy and against monarchy. Is there any way you’re going to win the narrative battle when you are saying that it was a war for colonialism and greed?

JK: I hope so. I think it is the only answer. We need to get away from these stories of simple American exceptionalism, and get to the truth. I give a lecture about how the US is still a colony. I often end the lecture by turning to my audience, which is often very well-meaning progressive white people, and I say, “Look, you’re a colonist. But you’re a good person. You’re a moral person. My question to you, and really the question of your very existence, is: What would ethical colonialism look like?”

I think this is the question of America. We have to ask ourselves this question. It’s interesting because it puts the person in a different position at the table, gives them a different view of the world, and presents different answers and solutions. My hope is that as the prayer of Standing Rock is carried forward and the leadership is changing, we will be able to sit down at the table and renegotiate this relationship which is so harmful to Native people. Native youth have the highest suicide rates. Native women have the highest rates of murder and rape in the country, bar none. This is the cost of the American dream, and we need to change that.

CM: Jacqueline, I can’t thank you enough for being on the show today.

JK: Thank you so much, Chuck.

Featured image: Water protectors standing off with the Clearwater county sheriff in northern Minnesota, where Anishinaabe women and accomplices held an eight day prayer camp in June 2021 asserting their land and water rights under an 1855 treaty that Enbridge Inc., the energy company building the Line 3 tar sands pipeline, is violating. In nearby Aitkin county, the sheriff is more aggressively aligned with the Canadian corporation and local settlers who welcome its genocidal and ecocidal project. The pipeline is planned to cross under the Mississippi river twice, once in each of these counties. Source: RISE Coalition (Twitter)

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