Want to keep updated on everything that’s going in Burns, Oregon? Here’s a timeline with all the major events leading up to and following the Bundy takeover:
Reports of armed protesters taking over Malheur National Wildlife Refuge Visitor Center in Southeastern Oregon during the past three weeks have created a constitutional debate not only amongst citizens of Harney County, but across the nation.The Beacon sat down with Bill Curtis, associate professor of political science and expert on the Constitution, to get the facts straight.
Bundy and the other militants that have taken over the National Wildlife Refuge are claiming that the refuge has essentially stolen land from ranchers who, according to Bundy, are entitled to the land by constitutional law. How do his claims hold up?
Well, it’s not that the ranchers owned the land beforehand, rather that the federal government doesn’t have a constitutional power to own this land after Oregon becomes a state. What they believe is that when this was the Oregon territory, the federal government could exert sovereignty over it, but as soon as it becomes a state all the land becomes property of the state, or individuals in the state. So the federal government can only own and control land, as far as they’re concerned, under the Enclave and Military Installations clause which says that they can own Washington DC, and they can also own land that the state either gives to them or the federal government buys for the specific purpose of setting up military installations. Most legal scholars would argue, however, that Bundy and his group are wrong because the Property Clause indicates that the federal government can own and control land, and that this power is not limited by the Enclave Clause. There’s basically a disagreement about whether, once a state becomes a state, all of its territory becomes state territory or whether the federal government can continue to own land in that region. All of this is pretty obscure constitutional law. I guarantee you there is almost no constitutional law class in any law school in the country that spends any time on the property clause or the enclave clause.
Some are arguing that the government did farmers and ranchers a favor buying their property back in the 1930s because, due to environmental conditions, the land was failing.
Well the crux of the argument is still that the federal government doesn’t have any claim to it because they didn’t buy it for a military instillation. Now, there are a few different takes on exactly how much control the federal government can have over these lands. One theory is that it is just like any other owner, so it has to obey the laws of the state. The opposing theory is that, no, when the federal government owns land it actually has sovereignty over that land. Meaning that it’s its own government there. It doesn’t have to pay attention to the state law. My understanding is that the Supreme Court originally agreed with the first one but in more recent cases has moved towards federal government actually being sovereign over federal lands. Now obviously the Bundys are going to say the Supreme Court is wrong about this. Just like they probably believe that the Supreme Court is wrong about most of the cases that it has decided on in the 21st century.
What is the legality of these men taking over federal land because they feel that their rights are infringed upon?
I mean, clearly, you can hold a protest. Although it is subject to various time, place and manner regulations, the government can’t stop you from protesting its actions. That’s the heart of the first amendment. However, you’re obviously breaking the law if you forcefully take over government buildings, or anyone else’s buildings for that matter. So they’re definitely breaking laws by doing this.
There is apparently a self-proclaimed “Superior Court Judge” that plans to convene an extra legal “citizens grand jury” where he’ll review whether legal officials in Oregon have committed any crimes. Would it be legal of them to make some kind of conviction based on evidence they obtained while trespassing?
Well there’s the practical answer, which says no. There’s the philosophical answer, which gets into who has sovereignty and so on and so forth. Obviously, in order to hold a legitimate trial, the entity that’s doing that has to have legitimate sovereignty. In Montana, maybe 20 years ago, there was a group of militia members that claimed their own territory and said that they were sovereign over this little piece of land in Montana and that the federal government didn’t have jurisdiction over it. This is what Bundy is claiming, that the federal government doesn’t have jurisdiction over the refuge.
The biggest debate around the standoff right now in popular media is how big of a deal is this? And how should we be treating this? Because a lot of people are saying that it’s not a big deal. It’s a tiny little building. They’re not doing anything violent. On the other hand we have people arguing that these men are militia. They’re armed and they actually are damaging property. They’re saying that this should be treated as terrorism. How are we supposed to go about this as a nation?
Well, usually you think of terrorism as being either the attempt to take life or threaten to take life in order to advance a political goal. The fact that these guys are armed and won’t leave and they’re threatening that if the authorities try to force them to leave, they will meet that force, certainly takes us beyond legal protest. On the other hand, I don’t think they’re all the way to terrorism yet. It would be one thing if they were taking hostages or if they started blowing up the building, but I don’t think tearing down a fence really counts. It’s “terrorism-light,” if that. The authorities could overpower them, but the history of the authorities doing this always come back to haunt them in criticism. In Ruby Ridge and also Waco, both times the federal government was criticized for using too much force when they should have waited and tried to get these people to stand down. I think they’re figuring that these guys will give up at some point. It’s the middle of winter. There are only a few people there. The lowest risk thing to do on the authorities’ part is just to wait and negotiate and eventually they’ll leave.
There is a lot of discussion, because the standoff is happening at this time in history, that there is a sort of a double standard. The argument is that if these people were of a different ethnicity, or religion, or race that it would be treated differently. What do you think in that respect?
I think it’s difficult to make comparisons because the federal authorities have experience with these militia guys. They’ve attempted force in cases like Ruby Ridge and they’ve ended up receiving criticism for that. This is not something Muslim extremists would do because it’s just not their MO, so it’s difficult to compare. I have heard that if these guys were a gang of black men that this would already have been over because the authorities would have rushed in, but the problem is that the context of that would change the scenario. And other stand-offs like this have ended violently in the past. In Ruby Ridge, a sniper took out Randy Weaver. You can’t make the claim that the federal authorities always use kid gloves dealing with these white, antigovernment extremists. I think it would be a totally different thing if these guys had committed any violence or taken hostages. If they had taken any hostages, you’d have snipers taking them out.
Rachel Rippetoe is a reporter for The Beacon. She can be reached at rippetoe18@up.edu
