Chaumtoli Huq
The Hammonds and the County of Harney have neither invited nor welcomed Bundy and his group of militiamen. Nonetheless the militiamen are referring to themselves as ‘patriots’ and are encouraging all who value the constitution to come join their fight- which directly contradicts the property clause of the Constitution. Article IV, section 3, Clause 2 of the United States Constitution states, “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 ….” Although there are some parts of the Constitution that may seem vague or up for interpretation, this particular clause is not one of them. Additionally, the Malheur National Wildlife Refuge lies on land that was formally designated for the Paiute tribe. Conflicts in the region between Native Americans and ranchers led the Federal government to discontinue the reservation in 1879 and relocate the Paiutes under Article 1, Section 8 of the Constitution. In 1908 Teddy Roosevelt declared the area a wildlife refuge for birds and other migratory animals.
Bundy and his militiamen are claiming this land belongs to the ranchers because the ranchers were working this land before the federal government declared it a wildlife refuge. But what they fail to recognize is that the Harney Basin where the Hammond ranch is located was settled in the 1870s while it was still Native American land. Bundy’s group is protesting for Constitutional rights (that contradict the constitution) to land that was illegally settled. In essence, if we go back to the original settlement of the land in question, Bundy’s group is advocating that the Federal government and Native American tribes have no stake in the land at all- a stance that is in complete opposition to the constitution. “The irony of the Bundy protest is that by their own rationale, these folks have no claim to any land in the west–let alone political autonomy over it,” states Anthony Broadman, a Seattle attorney who represents tribal governments.
“The Malheur, and the rest of Oregon, would be governed by Indian tribes. The theory behind these protests is kind of a clumsy bastardization of the Discovery Doctrine. But our system of federalism isn’t a game of ‘shotgun’ among private citizens. If territorial sovereignty was first-come-first-served, the actual Indian government removed from what’s now the Malheur National Wildlife Refuge, would have a much more senior right to these lands than ranchers from Nevada.”
This sentiment was echoed by Steve Russell in his piece, Bundy Militia Musters Against Pauite Land. He writes: “Ironically, the “legal” basis for starting a fight with the federal government is that sovereignty “really” belongs to Oregon rather than the Paiutes, who have seen their federal trust land shrink from over one and a half million acres to a tiny remnant of 760 acres in Burns, Oregon, where this current armed standoff began.”
Although the media and government curiously allowed Bundy and his group to carry on their antics unchallenged for two days now, it’s time that this situation is put to a halt. We must stop allowing these militiamen to hide behind false advertisements of patriotism and unjustified reliance on the Constitution and call them what they are- domestic terrorists who are equipped with weapons and threatening deadly force against the United States federal government over federally owned and managed lands.
Dayna Jones is a 2018 J.D. candidate at Lewis and Clark Law school in Portland, Oregon. She is a board representative of the Native American Law Student Association and a student member of the National Lawyers Guild. Dayna’s passions lie in indigenous rights and environmental justice.
Related to this story is an Oregon AG opinion No. 8237 dated July 7, 1995 by then AG Ted Kulonkoski about whether there is any state or county claim to Federal Lands under the Constitution.
Regardless of who the land belongs to the federal government should refrain from using deadly force and seek a peaceful solution. It is inaccurate to call people terrorists who haven’t committed any acts of terrorism. Last time I checked the ranchers haven’t attacked anyone and have said they are only armed for the purpose of self defense should the federal government launch an assault against them.
This article also fails to state who the Bureau Of Land Management actually serves. Is the wildlife refuge really for the benefit of the wildlife?
Is the Bureau of Land Management a real government agency? When was it established by Congress? If the land really belongs to the Paiute tribe then the government has no legitimate right to it and the federal government had no legal right to force the Paiute tribe to relocate and create a wildlife refuge on the land.
I’m fairly certain that was her point? If the Paiute tribe has no right to the land (debatable) the ranchers certainly do not either.
Bingo. I thought that the quote from Anthony Broadman articulated that well, but I apologize if the piece was vague in that regard.
Step 1: Read the article. “Conflicts in the region between Native Americans and ranchers led the Federal government to discontinue the reservation in 1879 and relocate the Paiutes under Article 1, Section 8 of the Constitution.” I am sure there are many arguments about the justification for the relocation, and I would guess that such an approach would not be acceptable today, but unless someone challenges it in court it will be considered constitutional. It was turned into a refuge in 1908.
Step 2: Look it up. Amazingly enough, the history of the BLM is actually available. I realize it is a lot of effort to type “BLM history”and look it up for yourself, but I’ll give you an assist: http://www.blm.gov/wo/st/en/info/About_BLM/History.html
As to whether it is for the benefit of the wildlife, what else are you suggesting? I don’t believe it is open to grazing or mining or other resource use, so unless you are talking about secret government bases or something, I am not sure who else benefits other than wildlife enthusiasts (and the town that receives tourist dollars and jobs by its presence).
Thank you for your comments. I do think this occupation raises numerous legal issues, and there are valid critiques of the AEDPA under which the ranchers were charged, but this piece was to raise the issues of Native Americans that have been ignored in the discussions.
Also, as far as terrorism:
Section 802 of the USA PATRIOT Act (Pub. L. No. 107-52) expanded the definition of terrorism to cover “”domestic,”” as opposed to international, terrorism. A person engages in domestic terrorism if they do an act “”dangerous to human life”” that is a violation of the criminal laws of a state or the United States, if the act appears to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping. ” https://www.aclu.org/how-usa-patriot-act-redefines-domestic-terrorism
I would say this pretty clearly falls under (ii).
I do agree that storming the sanctuary would be the wrong thing to do (see Ruby Ridge, Waco, etc.). I think the appropriate question to ask is not “Why aren’t they cracking down like they did elsewhere?” but rather, “Why couldn’t they have held back a little bit elsewhere?”
Natural News is reporting that the FBI is preparing for an armed assault.
http://www.naturalnews.com/052512_Oregon_protesters_FBI_armed_raid_weapons_staging.html
I agree Mark. I want to see this group disbanded and held liable for their actions, but I am not advocating for the response seen in Ferguson and Baltimore. The comparison has to be made, in my mind, because there is a disparity between the way the government is handling this illegal protest and occupation comprised of white men and the way the government has handled recent protests comprised of people of color. I feel that is a distinction we must notice and must not stand for. These men have been allowed their little charade long enough, it’s time to stop it. However, the force used in the previous situations isn’t a response I condone in any way and I don’t want to see it here either.
The two different types of protests shown in Furgisan and Burns are quite different. The Ferguson protests quickly turned violent, stores were being looted, people attacked and beaten just for being on the wrong street when a mob turned down it. Massive property damage was done. People were setting fires then slashing firehoses. People were shooting into cars trapped in traffic, at cops and EMTs and firefighters and each other. Overturning and burning cars.
Millions of dollars of destruction.
In stark contrast, the Oregon occupiers walked into an unlocked, empty building far from city centers, or a city, and have set up camp to try to bring attention to the systemic abuse of power the BLM and Department of the Interior have been increasingly engaging in. While some, as were the Ferguson protestors have firearms, they arent brandishing them at people. They are not pointing them at people, shooting in the air or even shooting. They have stated if they are shot at, they will defend their lives.
When the differences are made a bit clearer, do you understand how each is being treated differently?
One resulted in millions of dollars of damages, one has no property damage and they are, in fact, giving tours to anyone who wants one as well as talking to anyone who wants to.
Do you see the difference now??
In Ferguson at what point did the authorities take a militant stance. I’m sure had the protestors started out with weapons and took the stance that patriots stated, you would have seen the authorities take action very quickly, and it would have been harsh.
The USA Patriot Act is unconstitutional since it violates numerous amendments in the Bill Of Rights so who cares how it defines terrorism when the legislation itself is unconstitutional.
I was with you until you called them terrorists.
In calling this group domestic terrorists, I am referencing the definition of domestic terrorist laid out by the F.B.I., whose requirements I feel this group of men meets. https://www.fbi.gov/about-us/investigate/terrorism/terrorism-definition
An FBI definition of terrorism is irrelevant. As a law student you should know the only definition that matters is a legal definition. Government agencies have no legal authority to define terrorism. Government agencies only have the authority to enforce laws not to make laws or interpret the meaning of laws. If government agencies were free to establish their own biased definitions of crimes then they could make definitions so broad they would be able to define anyone they wanted to be a terrorist.
Boy do you got Your story all
First of all not all are armed
Second there are only 20 to 30 people
Lets make a stand said Ammon to me personally . I said no.
I was in the peaceful march for the Hammonds in Burns Oregon.
It should be pointed out that there were two Supreme Court cases on this very land. One was in 1908 and the other in 1935, according to my memory. Both reinforced the federal right and ownership to the land. Google the cases, they make for interesting reading. Dayna should have researched these cases.
Thank you for your additional input. This piece was purposefully narrow in the topic covered as I wanted to discuss the Paiute connection to the land and the irony of the Constitutional arguments that the Bundy militia is making. Although I am aware of the S.Ct cases you reference, I chose to keep this piece short and to the point. The Bundy situation brings a myriad of issues worth exploring and I encourage readers to always further their education on topics like these that interest them.
It’s a damn shame Teddy Roosevelt didn’t reverse the 1879 travesty by reallocating the area to reservation land for the Paiute Nation. But the USofA has hardly ever done the correct or right thing for the natives of this fair not great nation.
James, thank you for your comment that is right on point with the purpose of this piece! I couldn’t agree more.
It’s time for federal law enforcement authorities to put an end to this domestic terrorism. Arrest them at gunpoint and charge them with a long list of offenses.
ok first off article 1 section 8 clause 17 clearly states ;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–
Now this is what you quoted for legal foundation upon which this land and all others like it,we are to presume, is lawfully allowed to the Federal government.
Article IV, section 3, Clause 2 of the United States Constitution states, “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 ….” now if we look at the first cluase it clearly states what”other Property ” means, which is this “For the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings”
Legally under the law, the BLM, USFS, etc cannot own the property rights to any land that is not purchased from the state and is not directly used for these very specific means.
so please when you write an article, please make sure that you yourself understand the whole picture and not just your tiny narrative
Dayna I would say you missed the purpose of the Bundy Protest and as such you are attacking your own potential allies. They are protesting an overreaching Federal Government, who abuses the limitations placed on it by the Constitution at every turn. I’m sure they would rather negotiate with the Paiute Tribe than Federal Bureaucrats with private agendas backed by the full force of the Federal Government. ( You did see how sacred Indian lands in Arizona mineral rights were sold to an Australian Company for Copper Extraction.) Quite Simply they are for Empowering all men while disempowering the Federal Government, it’s bureaucracies, minions and other enablers. If this does not happen soon then with the next totalitarian state we will see will have technologies to enforce their oppression like never before.
I hope that this incident leads to an examination of the role that white terrorist supply houses like tacticalshit dot com play in these events.
This site operates like a Snipers R Us Outfitters, offering gear, sniper and other “tactical” training videos, links to chat rooms where these crazies discuss the C-4 and other bomb-making materials they have cached, 3% and 2A uniform insignia, and where they all share a core belief that they are “authorized” to kill any American, whether in or out of uniform, whether doing his or her job, that makes the “wrong move”, and utterly without remorse.
These people have already declared war on America, and they are able to operate openly only because they are all white, exercising full-on white privilege….
It’s the US government that has declared war on America as well as the rest of the world against anyone who resists imperialism and empire building. Its the US government that stages false flag terrorist attacks and mass shootings and invades and occupies countries all over the world. It’s the US government that considers everyone they kill as collateral damage. A small group of protesters armed in self defense does not constitute a militia and they certainly don’t pose any threat to the country or to public safety. Everyone has the right to protest against the government regardless of their race so their skin color is irrelevant. Also last time I checked the US government itself is mostly dominated by white men especially in high ranking positions in the government and military.
[…] Note: This commentary was first published in Law at the Margins. Used with permission. All rights […]
This is the best write up I have read on this! Bravo young lady, well done.
ok first off article 1 section 8 clause 17 clearly states ;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–
Now this is what you quoted for legal foundation upon which this land and all others like it, we are to presume, is lawfully allowed to the Federal government.
Article IV, section 3, Clause 2 of the United States Constitution states, “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 ….” now if we look at the first cluase it clearly states what ”other Property ” means, which is this “For the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings”
Legally under the law, the BLM, USFS, etc cannot own the property rights to any land that is not purchased from the state and is not directly used for these very specific means.
Thank you Collin Peuter
This is the best post I’ve read yet about the issue taking place on the Malheur Wildlife Refuge.
Dayna, I applaud your initiative and your reportage, as well as the many questions you leave us with to contend with ourselves. Why, by and large, folks see fit to attempt to engage you in tangential debate and to waste everyone’s time all around, I’ve no idea. Too much idle time on their hands I suppose, in tandem with a need to hear the sound of their own voice. Personally, I’ve experienced this myself through something innocuous that I wrote. So, I learned my lesson vis-a-vis the internet. You just never know what a hodge-podge of oddities you’re going to haul up in your ‘net’. – Dan ( linked )
Dan, it’s JC from UD, now in NYC. Long time. Email me.
I’ve written extensively on this issue for Indian Country Today and Telesur and spoken to Democracy Now about the Burns Paiute perspective.
These Aren’t the First Armed Whites to Take Over That Oregon Land: Just Ask the Native Paiute People -http://www.democracynow.org/2016/1/5/these_arent_the_first_armed_whites
http://indiancountrytodaymedianetwork.com/2016/01/12/we-dont-want-bloodshed-armed-white-militants-oregon-v-paiute-tribe-163046
http://indiancountrytodaymedianetwork.com/2016/01/19/oregon-militia-nuts-hold-paiute-history-artifacts-hostage-163116
http://www.telesurtv.net/english/opinion/Oregons-Land-Dispute-Who-Are-the-Original-Owners–20160108-0012.html