1405 Federal Abuse Made Bundy Inevitable
Last month, a Nevada rancher by the name of Cliven Bundy and his family became, according to U.S. Sen. Harry Reid, “domestic terrorists”. Their crime was facing down a Waco/Ruby Ridge-style armed attempt by the federal government to confiscate his cattle for, in Bundy’s opinion, illegal grazing fees from land being closed because of a bogus tortoise problem.
There has been no shortage of published or broadcast opinions on the incident. Unfortunately, little of that verbiage has included a reasonable analysis of the underlying 150 year debate over the legality of Washington’s ownership and/or control of more than 85% of Nevada’s land. As the federal government continues to claim more and more power, the issue of ultimate authority over real estate within the borders of states, counties and municipalities is fundamental.
Bundy is not the weird zealot that so much coverage has portrayed him as. He may not be perfect, but he is not alone in his predicament. Former Shoshone Chief Raymond Yowell has also been living with a similar injustice.. In 2002, the Bureau of Land Management (BLM) of Bundy fame seized his 132 head of cattle for previously undisclosed grazing fees on reservation land which the Yowell family had used for generations without an issue. The BLM sold the cattle then in 2008 began garnishing Raymond’s Social Security Checks for $180,000 more.
On April 22, Texas Attorney General Greg Abbott fired off a letter to the BLM demanding an explanation after learning about the agency’s plans to take over 90,000 acres of ranching land along the Red River. In answer to land owners’ legally held 100-year-old deeds and their having paid taxes for that period, the BLM claimed that it was never Texas land.
The most telling event for the land rights controversy transpired on April 18 (scheduled before the Bundy standoff). Leaders of nine western states convened for the first time ever to wrestle with the overreach issue. Utah’s Rep. Ken Ivory said “It’s simply time,” and Montana’s state Sen. Jennifer Fielder called the situation “urgent”.
Granted, there is a multiplicity of legal issues involved. Not the least of these is the interpretation of two provisions within the U.S. Constitution known as the Property Clause (Art. IV, Sec. 3, Clause 2) and the Enclave Clause (Art. I, Sec. 8, Clause 17). Together, these provisions give the federal government permission to own and control the District of Columbia and other land “purchased” by the “consent of the legislature of the state” for necessary government facilities.
If the words of the constitutional texts are taken at face value, as normal English language is, the ownership of land by the federal government is highly restricted and definitely does not include police power over public lands or the commandeering of private property, no matter the excuse – including the preservation of bugs, birds and tortoises. Judge Andrew Napolitano put it bluntly when he said that federal ownership of land outside of a specific federal purpose is unconstitutional and that all lands should be relinquished and returned to owners and states.
The other legal tangle involves what are known as Enabling Acts for admission of the states into the union. These were legislative actions by the territories by which they agreed to federal requirements of statehood. Most of the enabling acts included provisions whereby the territory would relinquish control of their land in order to clear title so that the United States could conduct a legal transfer of property and then deed or sell back said land to the then newly formed state.
Unfortunately, because of the politics of the times, Washington began to play fast and loose when it came time for the formal transfer of deeds back to the new states in the west. Nevada seems to have been victimized the worst by becoming a political entity that owned less than 15% of its own turf – the stuff that anchors economies, citizens’ survival and a real-world existence as a state. The fact is, without dirt, there is no genuine thing called a state.
To quote the Supreme Court: “the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama or any of the new states were formed; except for temporary purposes” [my emphasis] (Pollard’s Lessee v. Hagan). In the same decision, the Court further stated: “the power of the United States over these lands as property was to cease.”
There is much more that calls into question the validity of federal control of land rights and specifically its handling of the Bundy standoff. Whether you agree with him or not or like him or not, Cliven Bundy put his finger on the fundamental question by asking, “Are we (Nevada) a state or a territory in the United States?”
As Henry David Thoreau put it more philosophically, “Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislation? Why has every man a conscience, then? I think that we should be men first, and subjects afterward.”