The armed occupation of the Malheur National Wildlife Refuge in Oregon has grown more complicated and ominous. Armed civilians from throughout the West, including a so-called “patriot” group from Idaho, have begun to gather in the Harney County area. Small-time elected officials from outside the area have traveled to meet with Ammon Bundy to declare solidarity with his cause if not his methods, and supporters are calling for supplies to be sent to the occupiers to sustain them through a long siege.
I hope this ends without bloodshed, but also without compromising the rule of law. Because let’s be clear about what is going on: Bundy and his followers are attempting to win through the use of guns and implied violence what they could not and will not win through the rule of law. For that reason, those who give them support in that cause in any way are playing a very dangerous game.
For example, some are making a ridiculous effort to justify the takeover as some sort of “civil disobedience”. It is not “civil disobedience” when you seize control of federal property with assault weapons and declare your intent to use those weapons if authorities attempt to enforce the law. There is nothing civil in that at all. It is the willingness to accept punishment for your actions that gives “civil disobedience” its moral power, and the Bundy insurgents are anything but willing to do so.
In fact, a more accurate description of what’s happening can be found in federal law:
“If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”
Before we go further, I should give you a little personal background:
For about a decade working at western newspapers, I covered these land-use issues extensively. In the early ’80s, when I was editorial page editor of the Las Vegas Review-Journal, Nevada was the focal point of the so-called “Sagebrush Rebels” demanding state control of federal land for grazing and mining. Later in the ’80s, I took a newspaper job in Washington state, where among other things I covered the U.S. Forest Service and other federal land agencies. Then as now, the state of Washington was an intellectual hotbed of sorts for the “Wise Use” legal theories that the Bundys and their allies now cite to justify their actions.
And those legal theories are pure hokum. They have no basis in the law, Constitution or history of this country, as every court to hear them has ruled.¹ They rely on made-up history, made-up law.
For example, the core of their argument is that it is somehow unconstitutional for the federal government to own property, and that the land in question must be “returned” to local people. However, you cannot “return” something to someone who never owned it in the first place. The land in question has been the property of the federal government, to be managed for the benefit of all Americans, ever since it was seized from the northern Paiute Indians back in the 1840s.
And when the Constitution was adopted, the new federal government already owned tens of thousands of square miles in property ceded to the U.S. government by the former colonies. In 1803, under Thomas Jefferson, the federal government acquired another huge swath of land through the Louisiana Purchase. The Constitution is explicit in its empowerment of Congress regarding land ownership:
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”
The Bundy protesters are also advocates of the bizarre so-called “sovereign citizen movement,” which basically claims that the federal government has no jurisdiction over individuals, and that county sheriffs are by law the most powerful political officeholder. As Dave Bundy, another Bundy brother, writes in a letter to Harney County Sheriff Dave Ward:
“Where were you when a foreign entity not having any constitutional power, authority and jurisdiction within your county abused your citizens? Imprisoned them, restricted them from using there resources to make a living, ruining their way of life and violating their customs and culture and charging them with heavy fines. These were the people you swore before God and the people to protect. Why did you forsake them?”
That “foreign entity” is the United States of America. These are the theories that the Bundy group has taken up arms to defend on behalf of the American people, arguing that “it is their right, it is their duty to dispose of the tyrannical government infringing upon those rights.” It is attempted insurrection.
As you know if you’ve followed this situation, it began as a response to five-year prison sentences handed down to local ranchers Dwight and Steven Hammond involving arson.² If you want to argue that the sentence was excessive, I would agree. The initial judge handling the case would also agree, but he got overruled upon appeal. The problem is, the sentences handed down to the Hammonds were no more excessive than thousands of other “mandatory minimum” sentences handed down in the last two decades by federal courts at the insistence of a “tough-on-crime” Congress. (By the way, the same is true of sentences handed down under state mandatory sentencing laws, such as Georgia’s “two-strikes” law.)
Historically, those laws have hit minority communities particularly hard. But as many others have pointed out, imagine the reaction if black Americans protesting such a sentence had seized control of federal property at gunpoint and dared the government to try to take it back. It’s hard to believe that events would be following a similar course.
Having said that though, we should also acknowledge that it’s a little more complicated. Federal land agencies have thousands of employees trying to enforce the law throughout the American West. They live and work in these rural communities, often in offices of one or two people, and far from the protection of the federal government. Federal authorities know that if this were to blow into something larger and more deadly, those employees would become extremely vulnerable. That’s a big part of the reason why the situation is not being handled more aggressively.
In other words, it’s a difficult balance. But Cliven Bundy’s success in facing down the federal government two years ago in an armed confrontation — no one was arrested or charged, and Bundy continues to illegally graze his cattle on federal property, in defiance of court rulings — has undoubtedly given encouragement to this latest outburst. If these armed protesters also walk away and face no consequences, you have to believe that the movement that they hope to lead will become more emboldened still.
¹In the specific case of the Malheur National Wildlife Refuge, the property under dispute in the Oregon standoff, the U.S. Supreme Court has ruled not once but twice that the land is owned by the federal government.
“…. the Hammond family, whose legal troubles sparked the current controversy in eastern Oregon, benefit not only from cheap grazing on a federal allotment of some 31,000 acres. Records show Hammond Ranches received $295,000 in payments between 1995 and 2012 under various conservation, livestock disaster, crop disaster and other federal assistance programs.
Records also show that the U.S. Department of Agriculture’s Wildlife Services paid for aerial hunting of coyotes and other predators on Steven Hammond’s ranch.”