The standoff in Oregon that began on January 2 appears to have reached its conclusion. On Tuesday, January 26, several occupiers of the Malheur National Wildlife Refuge were arrested, and one occupier, Robert “LaVoy” Finicum, was killed in a confrontation with law enforcement.
The leader of the occupiers, Ammon Bundy, has since called on the occupiers to return home. Only four occupiers remain, and a federal judge has denied the release of several apprehended individuals until the occupation has ended.
With all signs pointing to an imminent end to the conflict, it is appropriate to ask the questions, “What caused the occupation?” and, “Do the occupiers have a legitimate grievance?”
What Caused The Occupation?
The proximate cause of the occupation concerns the sentencing of two individuals, Dwight and Steven Hammond, for twice committing arson on federal lands. In October 2015, an appellate court overturned the initial sentencing, pointing to a mandatory minimum sentence of five years.
Several days before the Hammonds were scheduled to return to prison, some individuals sympathetic with the family organized a protest, and then drove to and occupied the 187,000-acre wildlife refugee in eastern Oregon, approximately 50 miles southeast of the city of Burns in Harney County. (The choice of location was not random: in 1994, both Hammonds were arrested for interfering with the construction of a fence meant to keep their cows off the refuge.)
The group’s sympathy with the Hammonds centers around a larger grievance concerning the federal government’s ownership of vast swaths of land in the western part of the country.
According to Vox, the federal government owns nearly half of the land in the 11 westernmost states. It owns 81 percent of the land in Nevada and 53 percent of the land in Oregon: in Harney County, the site of the refuge, it owns three-fourths of the land.
Historically, the government has held on to much of western lands in order to conserve sparse natural resources and to protect endangered species. In 1891, for example, the government halted privatizing unsettled and unclaimed western lands to prevent the overharvesting of timber, and in the 1970s, the government turned to protecting federal lands from overgrazing.
Many ranchers have objected to these policies, claiming they interfere with their livelihoods. Cliven Bundy, for instance – the rancher from Nevada who made headlines in 2014 for a standoff with federal agents – ceased paying grazing fees to the federal government in 1993 to protest new regulations meant to protect the then-endangered desert tortoise.
The occupiers of the refuge in Oregon, led by Cliven’s son Ammon, believe that the public ownership and regulation of these lands are not only economically onerous but also unconstitutional. Indeed, Cliven Bundy recognized the late Finicum – a founding member of the group Citizens for Constitutional Freedom – as a “a student of the Constitution.”
Do The Occupiers Have a Legitimate Grievance?
Commenting on the dispute between the Hammonds and the federal government the day before the occupation at the wildlife refuge began, Cliven Bundy wrote:
The United States Justice Department has NO jurisdiction or authority within the State of Oregon, County of Harney over this type of ranch management. These lands are not under U.S. treaties or commerce, they are not article 4 territories, and Congress does not have unlimited power. These lands have been admitted into statehood and are part of the great State of Oregon and the citizens of Harney County enjoy the fullness of the protections of the U.S. Constitution.
Yet Erwin Chemerinsky of the UC-Irvine School of Law disagrees.
According to Chemerinsky, the occupiers believe that the “enabling acts” that granted statehood to former western territories require the federal government to relinquish its ownership over unclaimed land in the newly created states by either privatizing the land or bequeathing it to the state government.
Chemerinsky argues that while the enabling acts allow the government to cede control over the land back to the states, the government is not required to do so. He also points out that Article IV, Section 3 of the Constitution grants Congress the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”
Ralph Graybill, writing for the American Constitution Society, likewise argues that the enabling acts carry no duty for the federal government to dispose of public land.
“As a federal law, the enabling act is clear about the division of political authority,” he writes. “The United States makes ownership decisions about United States land; state governments will not.”
Ian Millhiser of the Center for American Progress agrees. He cites the Supreme Court’s unanimous decision in Kleppe v. New Mexico (1976) – in which the court stated that “the power over the public land thus entrusted to Congress is without limitations” – as evidence that the federal government’s maintenance of public lands, and its conversationist policies, are constitutional.
Yet not all scholars agree that attempts to return federal land to the states are legally unsound. According to Ken Ivory, founding president of the American Lands Council, the enabling acts contain language that justifies the government relinquishing its holdings.
He notes that while many of the enabling acts do declare that the inhabitants of a new state “forever disclaim all right and title to the unappropriated public lands lying within the boundaries,” the sentence in such acts typically continues by stating that “the same shall be and remain subject to the disposition of the United States” – but only “until the title thereto shall have been extinguished by the United States.”
In other words, Ivory argues, the federal government’s control of unclaimed land was only meant to be temporary: the federal government, he writes, was not supposed to operate as a “land baron.”
Some critics also point to the disparity in the way the federal government has disposed of the public lands of admitted states. In western states, the federal government has kept almost half of the land, whereas in the rest of the country, the federal government today owns only about 4 percent of the land, having ceded some land back to the states.
Indeed, in 1828, many of the newest states, such as Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida, began to successfully petition to acquire title to public lands from the federal government.
Critics contend that this unequal treatment violates an important feature of Article IV, Section 3, Clause 2 of the Constitution – the Property Clause – which affirms that “nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”
According to Ivory, the continued possession of almost half of the western states’ land amounts to prejudice against them – a violation of the “equal footing doctrine,” which dictates that states admitted to the Union since 1796 are to be regarded as equal “with the original States in all respects whatever.”
A New Phase of the Sagebrush Rebellion?
It is these legal arguments, combined with the perceived mismanagement of public lands, that precipitated the Sagebrush Rebellion of the 1970s and 1980s, when activists and state legislatures demanded that the federal government turn over public land to local control. That movement has reemerged in recent years, as numerous western states have proposed legislation to force the federal government to dispense with most of its public holdings.
The 2014 confrontation between Cliven Bundy and federal agents and the soon-to-end standoff in Oregon represent a renewal and intensification of this dispute over federal lands – a dispute that is likely to be settled with words rather than bullets.
As Ammon Bundy told the country after his arrest, “I am committed to freedom not force,” adding, “We will continue to educate the American people of the injustices that are taking place.”
Whether such land control and regulation represent an unjust violation of the Constitution and states’ rights or a legitimate exercise of federal power is likely to be a matter of political debate and legal contention long after the occupation in Oregon has ended.