Constitutional Smoke and Mirrors: Illegal Occupation of Malheur Wildlife Refuge

Dayna Jones

Dayna Jones

Guest Commentary

Editor’s Note: This commentary was first published in Law at the Margins. Used with permission. All rights reserved.

By now most of us are familiar with the situation playing out in the Malheur National Wildlife Refuge in Oregon where Ammon Bundy is leading a group of about 150 self-proclaimed militia-men who have succeeded in occupying a federal wildlife refuge building (vacant over the holiday weekend). Bundy’s militia proclaims to be protesting the incarceration of the Hammonds, local ranchers who have been sentenced to prison for burning federal lands. The militia is armed and says it is prepared to use defensive force if necessary, prompting many to rightly wonder why the federal government has not been called upon to address the situation as we have seen in the recent protests in Ferguson and Baltimore.“ Contributors have correctly commented that media coverage of the white militia is drastically different, with the militia being repetitively referred to as ‘peaceful’ even though they are threatening deadly force.

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.


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