First, let me say that—as an Orthodox priest—I cannot support violence. I both must support peaceful resolution, and I am committed to supporting peaceful resolution. Violence is something that we need to dread and see as only an acknowledgment that this is a very fallen and damaged world.
At the same time, we also need to confront what is wrong. In this blog, I have often confronted the wrong that is found in those who ignore the poor, those who have come here for refuge (even if illegally), those who are more concerned about business owners than about workers, and those who try to legitimize the immoral (such as abortion).
But, this is a different case. This is a case of government overreach. A farmer whose land had been his family’s since the 19th century, was told back in 1993 that it mysteriously was not his family’s. He opposed the land grab, but has been unsuccessful. Finally, he refused to submit.
In this country, we have laws that are a reaction to the way the powerful misused the law in merry old England. Among them are the land laws. Much of what the Federal government has done in the States since the early 20th century has been an out and out land grab of the most unlawful sort. Vast expanses of territory have been declared Federal land without concern for those who lived there before the land grab.
Note that I am not against Federal land ownership. There is nothing wrong with the Federal government owning land. But, there is something wrong with the Federal government claiming land as their own without due process and due recompense. There are appropriate times for the government to “condemn” land for its use. For instance, just because someone does not wish to sell their property should not mean that a new highway cannot be built.
But, there are legal limits to how land condemnation can be carried out. Sadly, much of the Federal land ownership of Western lands has more to do with convenience than with legal limits. In the incidents of this past week, we see the results of that indiscriminate policy.
This week, individual ownership clashed with Federal “condemnation.” It is sad that previous Federal courts automatically gave rights to the Federal government without much consideration. The result of decades of unthinking Federal policy toward a subculture of America that prices historical ownership is the confrontation that happened this week.
I am glad that no violence happened. I am sad that violence was threatened. But, it is important that some limits be set on Federal land ownership claims. Thus, the confrontation was not all bad. Sadly, I doubt that this will settle the matter. And, in the midst of all this, we often forget that Our Lord told us that it is better to lose our belongings (see the Gospels).
May this confrontation, and other State/Federal confrontations, be settled soon and in a peaceable manner. In what is possible, may local sovereignty reign. In what has to do with the poor, with human rights, with international commerce, with national voting, with immigration policy, etc., may our national policy win.
There is a critical piece of misinformation in your analysis. The Bundy family never owned the land in question and even Mr. Bundy doesn’t claim such a thing. The family had grazing rights on federal property for which they paid grazing fees, up until 1993. Not even Bundy and his suppporters are claiming that the Federal Government is confiscating deeded privately held land without due process. Their use of the term “Land Grab” is a bit ambiguous in that sense. Bundy does claim that his family has “Ancesteral grazing rights” and that the Federal Government is seizing PUBLIC land by closing it to grazing and other use.
So true Father Ernie
@GNW_Paul I would partially agree with you. Bundy does not own the land. The problem is that the history of the Old West includes “range wars.” That is, part of what was worked out in the Old West was an accommodation that allowed multiple ranchers to share common grazing land and common trails that allowed for the movement of cattle to market.
By definition, since these common grazing lands were not owned by any individual, they must be owned by the government, but only for the purpose of preserving the peace and establishing common grazing areas. Fast forward to the next century, and now the government begins to take away these common grazing rights. This is part of what triggered the confrontation.
Note that another part of the history of the West has been the whole argument of whether the land is supposed to be under Federal or under state control. To slip out of the Old West, Alaska has been arguing for decades that it is improper for the Federal government to claim to own so much of Alaska merely on the basis that the Federal Territory of Alaska pre-dated the State of Alaska.
Bundy is merely the flash point of a long-running argument between states, ranchers, and the Federal government. The visceral reaction of so many is what indicates just how strong the feeling still is that Federal land-ownership claims and practices have been changing without full public debate and/or approval.
I would have to revew and do new research on the specific land in question in order to really get into details, I would appreciate someone pointing out an article that dispassionately summarized the details and specifics going back to prior the annexation in 1848. In general I am very familiar with grazing issues and federal and public land disputes. My experience and knowledge is not specific to Nevada however, although back in the last “range war” in the 80’s I did some reading on the issues in Nevada and from what I recall at this point they are not dramatically different from questions in Montana, Wyoming, Idaho, Washington and Oregon where I follow these disputes fairly closely. I will admit that Nevada presents some issues that are not common in the Northwest USA. In Nevada there was a long period of Spanish government and settlement followed by an independent Mexican administration and then about 20 years of Anglo-American influx and a time period under the administration of the republic of Texas so there are some land claims that pre-exist the Federal annexation of the territory, other than Native American claims.
Mostly, I agree with your characterization in your comment above. However, I think you are significantly over simplifying. The problem is that in order to understand and “take sides” in this issue, clear information is necessary. Ambiguous and misleading statements that don’t make clear the history and and actual nature of the situation are useful for arousing anger and outrage but as stated the case: this is a different case. This is a case of government overreach. A farmer whose land had been his family’s since the 19th century, was told back in 1993 that it mysteriously was not his family’s. He opposed the land grab, but has been unsuccessful. Finally, he refused to submit. in your original blog post, are just plain misleading.
Certainly the history on this goes back a long ways, even further than the range wars of the 1860s which are complex in themselves. As you said: The problem is that the history of the Old West includes “range wars.” That is, part of what was worked out in the Old West was an accommodation that allowed multiple ranchers to share common grazing land and common trails that allowed for the movement of cattle to market.. A few points need to be clarified in this statement. It isn’t clear for this specific case, but in general none of the grazing ranchers claimed actual ownership of the land. Certainly, none of them had any clear legal title to the land. In most cases none of the ranchers even claimed squatters rights on the land primarily because squatter tradition does not apply well to activities like grazing cattle on vast open ranges. No fences, no fields, no buildings, no squatter rights. Now, in this case it could be that some of the ranchers claimed title from the Spanish or the Republic of Texas but perhaps they were not able to adequately document that claim.
Sorry to be so long winded, but the two take aways are that 1st) the range wars happened because no one had a claim to legal ownership and 2nd) the land was “public land.” If the details of the early history in this case are different, what would be helpful is for someone to summarize those facts.
Going back to what you said: “That is, part of what was worked out in the Old West was an accommodation that allowed multiple ranchers to share common grazing land and common trails that allowed for the movement of cattle to market.” This is still a bit too simplified and the history goes back even further. Ironically, while the federal Government was incredibly weak in the early 19th century the one power the Federal government had that the states didn’t was the power to annex new territory and admit new states. The history of the Ohio territory, and The Treaty of San Lorenzo (Pinkney’s Treaty) and how all of that land was accepted by the states as being Federal Land upon acquisition and the States individually and through congress accepted that Federal power. The Federal government then funded itself and grew primarily through selling land in the territories. So when the vast territories of the Louisiana Purchase and the Treaty of Guadalupe Hidalgo that concluded the Mexican American war were annexed into the United States it was already an established precedent that all that land became Federal Land to be distributed as the Federal Government decided to distribute. Typically, for political reasons at a minimum, pre-existing individual claims were recognized.
So Yes, the public land grazing system and the process of permitting grazing and the assigning of seniority rights to families ranches with older claims did arise out of the Old West but that was only one part in a long history and from the beginning, only the Federal Government really had the legal basis for creating such a solution.
The states claims to the land, in Alaska (which we must remember was acquired under an entirely different treaty at a late date and had a long history under Russian administration) and other states has a very significant uphill battle against historic precedent. The fact that some people make such claims and that court cases are filed doesn’t necessarily reflect the sound merits of the cases.
I have most certainly learned much from your summary. It does make me want to take a couple of law courses.
Part of the problem of a blog is that one cannot be too specific or too detailed. If one does that, then the blog post goes on too long and must be split into parts. My personal experience is that I am lucky if someone reads a three-part post in its entirety.
Thus, one paints in broad brush strokes and in generalizations that one hopes are adequate, even if not fully correct in the details. You are fully correct in pointing out that my original brush strokes were too inaccurate.
Nevertheless, let me point out that while it is true that Federal land ownership was accepted, it is also true that the control exercised by the Federal government often had more to do with land sales and suppression of inconvenient Native Americans than it did with the day to day details of a territory. (Again, I am painting in broad strokes.) Not even the favorable-to-the-Federal-government TV shows of the 1950’s attempted to portray anything but the loosest of Federal controls over the territory.
The individualism of the West is partial and indirect evidence that, in practice, the Federal government had a mostly hands-off policy as regards to the details. Common grazing lands were generally free. The elected town sheriff often had more to do with maintaining the peace than the Federal marshall. The Federal marshall was important. But, they dealt with bigger issues of maintaining at least a loose adherence to the Constitution and to legality than with real law enforcement oversight of the territories. Texas was an exception to several of these generalizations in that they were an independent country for several years. They developed the Texas Ranger system, which is a wholly separate set of data.
Thus, whatever the legal and official situation in the East, the reality of the West was what is often pictured. It was a tattered cloth of some Federal marshalls, some local sheriffs, some horse cavalry enforcement, and some local accommodations and compromises.
In that context, the Bundy family was grazing their cattle on the range since the 1800’s. Both sides agree that in 1993, the previous practice changed. The problem is that of common law precedents. For the Western rancher who has inherited decades of the reality of the West, the change (particularly if it had to do with a tortoise) was unprecedented and would have triggered the historical memories of the range wars. And, since 1993, the Bundy family has fought the redefinition of the Federal government to the point where a new “range war” developed.
Thus, while the “Eastern” legal analysis points to Federal control, the “Western” precedent points to little practical control. It is the clash of these two traditions that is causing a problem.
thought this might be interesting in this conversation:
http://www.theatlantic.com/politics/archive/2014/04/the-irony-of-cliven-bundys-unconstitutional-stand/360587/
Fr. Ernesto,
Thanks for the conversation. Good Stuff. There are lots of points of view on this, and much of my sympathy is actually with Mr. Bundy and the ranchers. I originally commented only to correct you in the mischaracterization of the legal situation. Whether I agree or sympathize with a cause or an individual is irrelevant when what they claim and the message being spread by my friends and the blogs I follow is false or substantially misleading. I have followed your blog for some time, and although I don’t read everything you post, I often find your perspective thoughtful and interesting.
When it comes to ranching and BLM land I am generally of the rural / western / true west / intermountain west perspective. Unfortunately just saying Western vs. Eastern doesn’t cut it because CA, OR, and WA in particular and the cities along the coast actually have more in common politically with the East and the cities there than with the rural west and the Rocky Mountain Front states. There is even quite a divide between Montana politics and Texas politics. Anyway, I broadly support grazing rights. I support ranchers. I think the BLM policy of closing this range is probably unnecessary.
However, Mr. Bundy never owned the land he was grazing and has no legal claim to it. He doesn’t even have pre-emptive rights. Further, the arguments being stated by Bundy in his recent public statements, in statements by his son and his daughter, and in statements by militia group supporters create even worse problem. It is bad enough that these arguments being false starting with false premises, and fallacious construction. The worst is that at the bottom of things, Bundy and his family and supporters are not arguing that Bundy’s constitutional rights are violated, or that the BLM policy needs to be corrected or that popular opinion supports change. They aren’t even arguing that the property rights Bundy is claiming are based on the the U.S. constitution and law or even on the way the Founding Fathers conieved of property rights. There are arguing based on their own understanding of “property” which there are hints may be rooted in an extreme understanding of certain passages of John Locke.
The whole history of rebellions and the division between the individualistic frontier Americans goes back to before 1700 and that really is the framework this falls under. This is really a Frontier opportunist vs. the establishment conflict and Bundy probably falls not too far outside the tradition of the frontier opportunist. I would encourage you to read about the Regulators in North Carolina ca. 1770 along with the Mecklengburg Declaration of 1775 and The Whiskey Rebellion particularly in Pennsylvania in 1791. That gives just a flavor of how wild and lawless things could get on the frontier long before the Old West sagas.
You are absolutely correct about the understanding of public land, the purpose of government held land and the desire of both the government and the frontier settlers to make use of it. There was always conflict. The Government, whether British, French, Spanish or U.S.A, was always trying to control the settlement, get land surveyed, mark boundaries, impose taxes and ensure the rule of law. The indian relations were especially tricky and every government tried at times to stop the settlement beyond established bounds. The settlers and opportunists (my family in genera) were always pushing beyond those boundaries. Deliberately going where the law was sparse or non-existent, establishing squaters-covenants with neighbors, killing indians, starting small wars, and threatening anyone who tried to muscle in on ‘their land’ with violence.
Mr. Bundy and this situation are merely the latest small chapter in a story that goes back to the first wave of Scotch-Irish Migration around 1680 at the very least. That at least gives a pretty good date, and also describes the vast majority of the characters involved, including Mr. Bundy as well.
One last note http://www.nbcnews.com/id/54954100/#.U08SHeZdWuk this article and also a couple of other sources that are less reliable are indicating that the Bundy family history on this particular land may not be as long as has been stated. It seems the first grazing permit issued for the Bundy family in this area was in 1954. Of course they may have been ranching in another family name or in an area close by…. However, it seems that there may be more (or indeed LESS) to the story that indicated. At this point I refuse to accept at face value the claim that the Bundy family has been grazing this land since 1878.
Thanks for the conversation.
I know you follow the eastern Calendar so I am glad we are celebrating Easter on the same day this year. Have a Blessed Holy week and a Blessed Easter.
Thank you for the information. You have given me much food for thought and have convinced me that Bundy is acting in a probably illegal manner. What he may become is a catalyst for change. See http://www.foxnews.com/politics/2014/04/19/western-lawmakers-strategize-on-taking-control-federal-lands/.
I recently read that part of the problem has been the failure of the Federal government to turn the lands over to the states as the territories became states. The statistic I read was that the Federal government own less than 1% of the land in the State of New York, while owning over 50% of the land in more than on Western state. Thus, the problem seems to be the failure to recognize that when a territory becomes a state, federal control of the land should end (except for military installations, federal facilities, federal government hospitals, etc., as is true in the Eastern states)
Fr. Ernesto,
You and I are thinking alike on that then. I’ve lived in the West all my life and have been thinking about these issues in one way or another and within my family and our extended family and friends be very close to a number of cases and issues related to Federal, State and Indian lands.
Writing about this particular case in conjunction with some historical research I’ve been pursuing recently on several branches of my family who were among the true frontiersmen and involved in these issues in North Carolina, Pennsylvania, Kentucky, Tennessee, Georgia, Ohio and Missouri it has changed my perspective somewhat. I think like most westerners I’ve grown up just accepting the situation with roughly 60% of the land in the state being Federal land. Nevada is the extreme example, outside of Alaska, with 81% Federal Lands. Alaska is more fortunate however, in that the land the state owns provides enough income off of mineral, oil and other resources to allow the state to function even with a small tax base. Wyoming is in a similar situation.
Anyway, from the strictly legal and constitutional sense the states really don’t have any ground for demanding a land gift or sale from the Federal govt. Each western state, except Texas*, has a clause in the Enabling Act that specifically cedes unclaimed land to the Federal Government. Where you are 100% correct is that up until 1890 and in most of the states the Federal government sold or gave away the vast majority of it’s land in each state within roughly 50 years more or less. In 1890 the trend towards conservation and protection and also ensuring management in the national interest of forest resources and mineral resources began a change in policy on the Federal side to the point that since 1940 very little land has been transferred. Theoretically massive land give aways are still fully legal and possible under the Mining Act of 1872, but environmental regulation has gummed that up enough that it doesn’t happen so much, and it only applies where there is enough mineral wealth to bother. Since they actually have to establish actual improvement and operation on the land, it is incompatible with attempting to acquire land for any other purpose.
But that isn’t the whole story. Nevada, like Montana, Wyoming and Oregon and Idaho was open for settlement and homesteading for years before and after statehood. All of that land could have been purchased cheaply, or at times obtained for free and sweat equity, but even with 40 or 50 years of opportunity, most of that land was not attractive enough to bother with. In most of the eastern states something like 80% or more of the land was usable for agriculture and other purposes. Kentucky and maybe Tennessee might be exceptions, and one demonstration of that is how many dirt poor Appalachian farmers ended up owning land that couldn’t support a family. Probably parts of Kentucky would have been better off not being cleared for farming. Even in Montana homesteading was largely a failure because the land and rainfall weren’t suitable for farming. Many, many (maybe 20% or more) homesteads that where plowed up, have been let go back to prairie because even with modern methods, they won’t produce enough to be worth farming.
That brings up the other part of the story. The purpose of the Federal Government and the existing settled (eastern / non-frontier interests) was to get land into productive use to increase the economy to benefit business in the cities and to tax – it was still colonialism, just milder than the English form of it. However, nearly all of the land in Nevada, like the exact 81% the Federal Government still owns, is only capable of being minimally productive. Of course, the one economically valuable use for the land is pretty marginal, but bring us back to the starting point, open range grazing which is just barely profitable and only because the owners do all the labor.
The way I am thinking right now, one idea is a constitutional amendment requiring the Federal government to sell off or transfer lands over time until they reduce holdings to no more than 25% of the land in any given state. However, in the long term, that probably still wouldn’t help Nevada much, because the land still isn’t going to be very productive.
The other idea is that some of these lands should be governed under some different model, more like a territory, with more state or Federal support. Simply put, some counties in Montana, Idaho and Eastern Oregon just don’t have enough productive use to be able to support their local government and services with tax collections. There are whole counties in Oregon with only 2 or 3 law enforcement officers they have no law enforcement response available much of the time. There are many counties that can’t support their schools. Even in Oregon which provides a pretty large state share for education, some counties can barely provide sub-standard schools. Nevada, being the extreme case, perhaps should not be an independent state. Las Vegas, and Reno/Tahoe could be like independent city states and the rest could be a Federal reservation or maybe we should just let the tribes have the whole thing.
Neither of these idea will ever happen. Too politically controversial.
God Bless and Happy Easter.
* Texas doesn’t have any Federal and very little state land. Because they were annexed as a settled, independent county, they negotiated to retain State control over unclaimed land, and since a reasonable high percentage of that land was useful for agriculture (at least much more intensive grazing that Nevada) over 80% of that land was sold to private use.