You’ve probably heard something, by now, about Cliven Bundy, the Nevada cattle rancher who refuses to acknowledge BLM jurisdiction over the federal public lands on which he grazes his cattle and who claims an ancestral connection to the land that in any event trumps the federal claim. Bundy has been fighting with the BLM since the mid-90s, when the federal government began buying back grazing rights as part of a conservation effort:
Near Las Vegas, the Bureau of Land Management designated hundreds of thousands of acres of federal land for strict conservation efforts. “Among the conservation measures required,” according to the Post’s coverage, “are the elimination of livestock grazing and strict limits on off-road vehicle use in the protected tortoise habitat. Two weeks ago, the managers of the plan completed the task of purchasing grazing privileges from cattle ranchers who formerly used BLM land.”
Many people were not impressed by the new conservation plan. “Cliven Bundy, whose family homesteaded his ranch in 1877 and who accuses the government of a ‘land grab,’ are digging in for a fight and say they will not willingly sell their grazing privileges to create another preserve . . . .”
Bundy and other ranchers fought with the BLM for two decades. Their refusal to pay fines or remove their cattle from federal lands, however, probably has to be understood within the larger context of a movement in the West to regain local control over huge swaths of land in states like Nevada and Wyoming, where the federal government may actually own most of the open land, including much of the best rangeland:
Counties were starting to challenge federal ownership of land. In 1991, Catron County in New Mexico passed an ordinance that claimed state ownership and local management of public land in the state. Thirty five counties followed suit. Nye County, Nevada, became the first to act on its legislated threat. The county commissioner bulldozed his way down a closed national forest road. Forest rangers soon followed, who the county commissioner threatened to arrest if they interfered . . . .
“The federal government just wants control of us. But I’m not going to be controlled,” Keith Nay says.
But those seeking greater access to federal land deny they are looking for an old-West shoot-out.
“Do you want to see my weapons?” asks Norm Tom, a Paiute Indian and Nay’s son-in-law, who runs about 100 cows on range adjoining Bundy’s. He pulls out two copies of the Constitution, one pocket-sized, one full sized.
The textual constitutional argument is probably pretty weak. I’ve heard it advanced that the Enclave Clause limits federal property acquisitions to a few special cases, but I highly doubt there’s a serious case for that. For one thing, not all federal property purchased from a state or a private owner need be a federal enclave. The clause provides for special federal authority over certain things like military installations. But the federal government purchases other types of land as well—at a minimum for roadways, which I doubt would fall under the Enclave Clause’s “needful buildings” umbrella. Non-enclave lands are presumably purchased under the Tax and Spending and Necessary and Proper Clauses, and the ownership of real property by the federal government seems to be implicit in the Property Clause.
For another thing, the federal government frequently acquires land (or did in the past) from foreign nations, whether by warfare or by purchase. I don’t think anyone is arguing that the Louisiana Purchase, Seward’s Folly, or any of the various purchases from Indian nations by treaty were unconstitutional. We know from the text of the Constitution that the U.S. may hold and rule “territories,” and can apparently hold them indefinitely — i.e., there is no constitutional requirement that we someday turn Guam into a state. So, clearly, the federal government can own land that was never a part of any state and perhaps never will be. And Congress has apparently plenary power to admit or refuse to admit new states (see Article IV, Section 3). But once we admit that, it seems likely that Congress is able to impose certain conditions the statehood acts of territories that do wish to become states—including land cessions.
And, indeed, this is exactly what happened in Nevada’s case. The enabling act of 1864 that created the state of Nevada reads, in relevant part,
[I]t is hereby authorized to form a constitution and state government for said territory: Provided, That . . . said convention shall provide, by an ordinance irrevocable, without the consent of the United States and the people of said state . . . .
That the people inhabiting said territory do agree and declare that they forever disclaim all right
and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.
And apparently that was fine with the Nevadans of 1864, because the Nevada state constitution did indeed make exactly that disclaimer:
[T]he people inhabiting said territory do agree and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States . . . .
Other states had similar enabling acts and similar stipulations. Thus, it seems quite likely to me that the large federal holdings in the west are at least textually constitutional, both because it seems reasonable that Congress, which need not approve statehood at all, could require land cessions as part of the deal for a statehood enabling act, and because the people of the new state, in an act of popular sovereignty, explicitly ceded the land. Unsurprisingly, a federal district court ruled in 1996 that Nevada’s attempt to “statutorily claim” much of that land back was “unsupported, unconstitutional, and fail[ed] as a matter of law.”
Still, I don’t think Bundy is entirely wrong, even if he is right without quite knowing why. I think you can argue that the fundamental, structural federalism of the Constitution strongly disfavors the federal government exerting unilateral and perpetual control over such enormous swaths of state territory. Buried somewhere in Bundy’s imprecise ramblings, in other words, there is a legitimate point:
Well, you know, my cattle is only one issue—that the United States courts has ordered that the government can seize my cattle. But what they have done is seized Nevada statehood, Nevada law, Clark County public land, access to the land, and have seized access to all of the other rights of Clark County people that like to go hunting and fishing. They’ve closed all those things down, and we’re here to protest that action. And we are after freedom. We’re after liberty. That’s what we want.
He’s… kind of right. If we are serious about states as separate, sub-national sovereigns, there’s something disturbing about the federal government holding, say, 81% of the land in Nevada, 66% in Utah, 61 % in Alaska, 61% in Idaho, 53% in Oregon, 48% in Wyoming, 47% in California, or 42% in Arizona.
In essence there is a two-tiered system of land control in the U.S.—one for the West, and one for the rest of the nation. There may be very good reasons for the U.S. Government to hold some of this land—Indian reservation land, for example, is often technically titled to the U.S. but actually occupied and administered by tribes. And there are national parks to consider. But much of it is simply under federal control for reasons of historical accident—the last states to enter the union had to make sacrifices (because of the aforementioned Congressional plenary power and consequent dealmaking) that other states did not. It’s odd, to say the least, and from a normative federalist position, I think it’s troubling.
The neat thing about the federal government is that it exists whether or not some mouthbreather thinks it does, and it has authority over him regardless of whether he thinks it does. To argue otherwise simply is to claim that each individual can decide which laws he chooses to follow and when, which is to say that there are no laws at all. A law isn’t a law if it can’t be enforced. A law that can’t be enforced is a suggestion . . . .
It’s a sad day . . . when a bunch of assholes spouting “sovereign citizen” gibberish and pointing guns at public officials get treated like a group of people whose ideas deserve to be heard and given due consideration.
Here‘s Salon‘s Edwin Lyngar:
The latest right-wing media poster-victim, Cliven Bundy, is just the latest in a long line of desert dwellers who thinks he or she should not have to follow the law and has a god-given right to unlimited use of public resources, in this case, rangeland.
Here‘s Nevada Senator Harry Reid:
These people who hold themselves out to be patriots are not. They are domestic terrorists.
Sigh. Really? Do we have to use that word for everything we don’t like? The danger of calling Bundy and gang “terrorists” should be obvious—once you equate (so far) non-violent protest and civil disobedience with “terrorism,” everything gets to be “terrorism” if we don’t like it—everything from AIM and the Black Panthers to Occupy Wall Street can be framed as “terrorism” if we make the definition capacious enough.
More generally, it’s a little disheartening for me to see my fellow lefties displaying such knee-jerk loyalty to governmental authority. (I mean, for heaven’s sake, this is the same week we’re all chuckling over this magnificent series of sarcastic tweets to the NYPD.) People should, or at the very least may, disobey laws if they are sufficiently unjust—or even unduly burdensome, as Ilya Somin has recently been arguing with regard to illegal immigration. I don’t think Cliven Bundy is John Brown, of course. But to say that is to admit that the legitimacy of resistance is tied to the gravity and righteousness of one’s cause. Gravity and righteousness are likely to be things about which reasonable people disagree in many, many cases, and so we should be cautious about castigating those who break the law for what they believe is a good cause. At the very least, invoking “the law” as an argument-ending talisman is not likely to go well for the Left, which has its own gripes with the law as currently constituted.
Here is a video of protests as of last week. You can judge for yourself the degree to which the protests are bringing tazings and other violent acts on themselves by being really huge assholes, but if you are on the left, consider what your gut reaction to this kind of police behavior would be if it were directed at environmentalists or Occupiers (many of whom, let’s be honest, can also be really huge assholes).
Jamelle Bouie wonders whether Bundy would be getting such support from the right if he and his group were non-white:
I can’t help but wonder how conservatives would react if these were black farmers—or black anyone—defending “their” land against federal officials. Would Fox News applaud black militiamen aiming their guns at white bureaucrats?
Somehow, given the degree to which right-wing media traffic in racial paranoia, I think we’d be looking at a different situation if the Bundy Ranch belonged to a bunch of black people. And as someone who closely follows the regular incidents of lethal police violence against blacks and Latinos, I also wonder whether law enforcement would be as tepid against a group of armed African-Americans. Judging from past events, I’m not so sure.
A fair point. Actually, I’ve just started reading Nicholas Johnson’s Negroes and the Gun, which deals with the tradition of black armed resistance to various kinds of tyranny. Will report back. But in the meantime, there’s actually a pretty apropos example of non-white ranchers resisting the BLM, from recent history.
From 1973 through the 2000’s, Mary and Carrie Dann, Shoshone ranchers in Nevada, grazed their cattle on BLM land and refused to pay grazing fees, based on the Shoshone nation’s ancestral claims to the land. They engaged in peaceful civil disobedience, in response to which they and their supporters frequently ended up in direct confrontation with BLM agents. Many of their livestock were impounded.
There the similarities to Cliven Bundy may end. The Danns ultimately won, on behalf of the Western Shoshone, a non-binding but influential declaration by the Inter-American Commission on Human Rights that the U.S. violated the Danns’ rights with regard to the Shoshone aboriginal title, as well as a similar statement from the U.N. Committee on the Elimination of Racial Discrimination. And while the U.S. Supreme Court found the issue of the tribal claim statutorily precluded by an Indian Claims Commission settlement (for which the tribe has refused to accept the money), it noted that the Danns might have individual aboriginal title, or at least use rights—a theory later partially, but not wholly, vindicated by the Ninth Circuit. In short, the Danns have had many days in court and have proven a substantial moral claim to grazing rights in the land, even if they cannot actually legally enforce the claim.
Cliven Bundy has also had a number of days in court, and the courts have declared his legal arguments to be bunk. No international human rights court has declared him to be part of a group having suffered a historical theft of land; nor has his claim to an individual aboriginal title been even partly recognized. That is not determinative, of course, but it tends to make his case less compelling than the Danns’.
Another thing that makes the Danns different, of course, is that neither they nor their supporters (to my knowledge, at least) have brought arms to their confrontations with the BLM, nor have they suggested that violent resistance is appropriate. Check out, for example, this brief scene of one of them calmly but fiercely demanding that a BLM agent provide documentation that the Shoshone had ceded their land to the U.S.:
No screaming. No ginned-up drama. And nobody doing this shit:
Which leads me to the third difference between the Danns and Cliven Bundy: support, especially from the right. As Indian Country Today wryly noted,
Protestor Richard Mack, a former Arizona Sheriff, told a Fox News camera that the plan was “to put all the women up at the front. If they are going to start shooting, it’s going to be women that are going to be televised all across the world getting shot by these rogue federal officers.”
On April 12, the BLM postponed the circus, giving Bundy’s cattle back and leaving Cousin Ray to wonder where all these lovers of law and liberty were when the women up front were Carrie and Mary Dann?
A terrific question, and it brings us back to Bouie’s point. When Shoshone grandmothers practicing subsistence ranching are fighting the BLM over a totally legitimate (even if not legally cognizable) historical grievance, nobody comes except their family and a cameraman from OxFam. Certainly the Right does not take them up as a cause, even though the Right’s ostensible primary purpose is to reduce federal interference in local affairs and to bolster local, low-level government by the people. (Perhaps tribal government doesn’t count.) When a white millionaire engages in a similar fight based on a non-starter theory of federal land acquisition, on the other hand, Republican politicians, major news networks, and militia members from as far away as Pennsylvania stand up for him. And it works!—Cliven Bundy got his cattle back, and will presumably start grazing them on federal lands again.
The Bundy ranch situation is America in miniature: a vague and ambiguous Constitution giving rise to uncertainty; a confused political culture about police violence and the necessity of respect for law; militias; cows; disparate levels of support for people’s rights; and things working out strangely well for white men. The whole thing is a bit of a carnival sideshow, but it’s also our weird, broken democratic process at work.