Unwelcome armed militants are occupying an empty building on federal land considered sacred by a Native American tribe.
Go on now. Git. Image from Daily Kos.
When I was an active trial court judge in Texas, I had a lot of contact with the posse comitatus, understood as a self-directed band of gun-toters rather than the common law “hue and cry” raised by a law enforcement officer to pursue a felon. They also call themselves “militia,” pointing at the Second Amendment for authority and conveniently overlooking the words “well-regulated” that modify “militia” in that document.
The reason I used to see a lot of them is that they do not believe the government has the authority to require a license to drive — let alone liability insurance — or to require registration of cars. Automobiles, they believe, are subject to a human rights analysis — based on documents written before automobiles — and trying to regulate automobiles is almost as treasonous as trying to regulate firearms, but not quite.
Timothy McVeigh made his getaway in a car without license plates.
You may remember that the bomber of the Oklahoma City federal building and the day care center inside, Timothy McVeigh, was apprehended making his getaway in a car without license plates.
While the militia crowd brought me a lot of criminal business, when they went though a period of filing bogus judgment liens on the homes of judges, I was spared. My comparative popularity was based on the fact that I would let them attempt to baffle the jury with their constitutional fantasies over the objections of prosecutors. Their theories never prevailed with any Travis County jury where I presided, but they did not blame me when the jury hammered them.
After hanging up the black nightgown, I entered academia, but I was still an attorney licensed to practice in the U.S. Supreme Court. As a member of that Bar, I signed one of many amicus curiae briefs in District of Columbia v. Heller on the prevailing side. I believed then and I believe now that the Second Amendment protects an individual right to possess firearms rather than a “collective right” that would make little sense memorialized against the collective, the government.
The collective right theory of the Second Amendment makes about as much sense as the theory that the purpose is to allow citizens to protect themselves from their own tyrannical government by shooting National Guardsmen, police, or — in a case all over the news recently — park rangers.
Park rangers?
Yes, park rangers. The domestic terrorists some of us are calling the Y’all Qaeda militia have decided to kick off a revolution by occupying a bird sanctuary in Oregon. To understand how that could happen, return with me to April of 2014 in the great state of Nevada.
The big news in 2014 was the confrontation between the federal government and the “militia movement” over the removal of cattle belonging to Mormon “pioneer” Cliven Bundy from federal land. Bundy had not paid his grazing fees for 20 years. Why? His ancestors settled those lands in the 19th century. “Time immemorial,” my Cousin Ray Sixkiller pointed out, “means different things to different people.”
Bundy recognized no federal authority in the matter. If he owed grazing fees, he claimed they would be owed to the state of Nevada, which entered the United States on Halloween, 1864. Because the Civil War was going on, the Nevada Constitution contained a “paramount allegiance clause,” which is seriously inconvenient for anybody claiming, as Bundy does, a right to ignore the feds.
The year before Nevada was admitted, the U.S. signed the Treaty of Ruby Valley, which recognized the Western Shoshone as owners of large portions of their original territory. In 1979, the Indian Claims Commission awarded the Shoshone $26 million in compensation for land lost to “settler encroachment” while the federal government looked the other way. Those encroaching settlers would be who Cliven Bundy cites today as originators of his right to graze his cattle, although “his” ranch is situated on land that belonged to the Southern Paiutes.
The Shoshone did not agree that the land should be used for nuclear testing.
The Shoshone refused the money. They had not agreed to sell the land. They did not agree that the land should be used for nuclear testing. Carrie and Mary Dann were Shoshone elders who stood up to the abuse. Mary walked on at age 82, in 2005. The 83-year-old Carrie was last arrested in 2007, protesting against the use of Shoshone land for nuclear weapons research.
The Dann Sisters grazed their cattle on land the Bureau of Land Management claimed since 1973, refusing to pay grazing fees based on the Treaty of Ruby Valley, Article VI of the US Constitution, and a report by the Inter-American Commission on Human Rights of the Organization of American States that found the U.S. to be cheating the Shoshone.
In 1992 and again in 2002, armed Bureau of Land Management posses rounded up the Dann Sisters’ cattle and sold them for grazing fees. The New York Times reported in 2002 that the Dann Sisters had been fined $3 million for “trespass.”
When a BLM posse came to round up Cliven Bundy’s cattle for the same reason in 2014, armed “patriots” rode to the rescue. The BLM got about 400 head of Bundy’s cattle and Bundy got about as many supporters, many of them armed, from as far away as Montana. The Washington Post reported on April 10, 2014, that a sign at the entrance to the protest camp read “MILITA SIGHN IN.” Cousin Ray said he hoped their shooting was no better than their spelling.
Ammon Bundy in 2014. Photo by Gage Skidmore / Wikimedia Commons.
Protestor Richard Mack said the plan was ‘to put all the women up at the front.’
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 some of us to wonder where all these lovers of law and liberty were when the women up front were Carrie and Mary Dann?
With this background, fast forward to January 2016 in Oregon.
Some of the same armed “militia” involved in the Cliven Bundy affair in Nevada have occupied federal land in Oregon formerly reserved for the Northern Paiute. 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.
Video at the time the BLM attempted to seize Cliven Bundy’s cattle showed “militiamen” taking aim at federal officers, and the authorities decided a bloodbath over grazing fees was not sensible. When the federal agents stood down, the militias declared a major victory.
This January 2, the war over federal authority continued when an unknown number of militia members seized a building in the Malheur National Wildlife Refuge and Ammon Bundy — Cliven Bundy’s son — released a video urging like-thinking people to arm themselves and come to Oregon, declaring, “We’re going to be staying for several years.”
The “militiamen” claimed the occupation of the empty building was accomplished by 150 armed men. The armed occupation of Malheur Wildlife Refuge grew out of demonstrations over the impending deadline for Steven Hammond, 46, and his father Dwight Hammond, Jr., 73, to report to federal custody to begin serving five years in prison each for arson on public lands.
The government argued that the fires were set to cover up evidence of poaching activities.
At the Hammonds’ trial, the government argued that the fires were set to cover up evidence of poaching activities. The Hammonds did not deny setting the fires but claimed their purpose was to destroy invasive species.
In the 2014 standoff, Cliven Bundy claimed that federal agents had no authority in Nevada. He now claims the same of Oregon, stating on January 2, “United States Justice Department has NO jurisdiction or authority within the State of Oregon.”
If anything is clear-cut about Indians in the Constitution, it is that relations with Indian nations are a federal responsibility. Carrying out that responsibility in Oregon, President U.S. Grant established the Malheur Indian Reservation for the Northern Paiute in 1872. It is no coincidence that the historical reservation shares a name with the Malheur National Wildlife Refuge, site of the current armed standoff.
White settlement nibbled at the Malheur Indian Reservation until the Bannock War in 1878, which ended with surrendered Paiutes and Bannocks on the reservation being removed, officially to the Yakama Reservation in Washington Territory. Unofficially, Paiutes had scattered all over the Western States that comprised their aboriginal lands. The Burns Paiute Reservation is the remains of the Malheur Reservation and the Malheur Wildlife Refuge is an alternative use for the federal land, for those who believe the federal government exists.
As in Nevada, the Bundys claim the only lawful authority in the area is the Harney County Sheriff David Ward, who they have petitioned to take the Hammonds into “protective custody” from the U.S. Marshal.
Ammon Bundy said, ‘This is a time to stand up.’
In a video posted on YouTube, Ammon Bundy said, “This is a time to stand up.” Willamette Week reported that militia members arrived in Oregon for several weeks in response to Bundy’s plea.
Jon Ritzheimer made a farewell video for his family before heading out to fight the “oppressive, tyrannical” federal government and posted it on YouTube in the style of a radical Islamist “martyr video.” If he were not promising to “die a free man,” his rant about the Constitution would be humorous.
While he would fail my constitutional law course, his, ahem, unusual reading of the document loses some humor value when he offers it as a reason to “lay my life down to fight against tyranny,” tyranny put in place by “kids who never got their hands dirty who went off to college” and came back thinking they know as much about land management as farmers.
Ammon Bundy claims on video to be doing God’s work and says of the 2014 standoff, “because people came, we are free.” He also claims that the U.S. Attorney threatened to get the Hammonds assigned to “a less desirable prison” if they kept consulting with the militia and that would be “a death sentence.” Urging people to join in, he referred to the occupation of the Wildlife Refuge as, “This wonderful thing that the Lord is about to accomplish.”
The Oregonian reported that one of the occupiers is Ryan Payne, an army veteran who claimed to have organized snipers to target federal agents during the 2014 standoff at the Bundy ranch in Nevada.
Another veteran of the Bundy standoff, Blaine Cooper, told The Oregonian, “I went there to defend Cliven with my life.”
Oregonian coverage included this early statement on the situation from Harney County Sheriff David Ward:
After the peaceful rally was completed today, a group of outside militants drove to the Malheur Wildlife Refuge, where they seized and occupied the refuge headquarters. A collective effort from multiple agencies is currently working on a solution. For the time being please stay away from that area. More information will be provided as it becomes available. Please maintain a peaceful and united front and allow us to work through this situation.
The Hammonds were not as quick to advocate shooting at federal officers.
According to reporting by the Associated Press, the Hammonds were not as quick to advocate shooting at federal officers as Cliven Bundy. The AP quoted a letter from the Hammond family lawyer, W. Alan Schroeder, to Sheriff Ward: “Neither Ammon Bundy nor anyone within his group/organization speak for the Hammond family.” Dwight Hammond himself told the AP that he and his father intended to turn themselves in on January 4 as ordered. “We gave our word that’s what we would do, and we intend to act on it.”
In summary, the self-described “patriots,” members of a militia that is not exactly “well-regulated” (as the Second Amendment requires), occupied Malheur National Wildlife Refuge on January 2 for two stated reasons. They intended to keep Steven and Dwight Hammond from serving the minimum lawful sentence for arson on public land and to protect the citizens of Oregon from the tyranny of the federal government. They quickly got some results — probably not the results they anticipated.
First, Steven and Dwight Hammond turned themselves in to serve their sentences, as required by the terms of their bonds. Dwight Hammond told the Associated Press that was going to happen and it happened.
Headquarters for the Malheur National Wildlife Refuge in Southeast Oregon. Photo by Cacophony / Wikimedia Commons.
If, as the militia claims, the land is not
federal, then it is tribal.
Second, the descendants of the aboriginal owners of the dirt upon which the Malheur Wildlife Refuge sits (formerly the Malheur Indian Reservation) held a press conference. It should be noted that if, as the militia claims, the land is not federal, then it is tribal. It’s unclear how the state could have a claim at all since the land belonged to the Paiutes, then was in federal trust for the Paiutes, and then the use of the land was designated as wildlife refuge when most of the Paiutes were removed to Washington Territory.
Those Paiutes who did not move still live on the Burns Paiute Reservation. On January 6, the Burns Paiute Tribal Council called a press conference.
Tribal Chair Charlotte Rodrique accused the militia of endangering Paiute sacred sites when they threaten a firefight on that real estate. In response to the militiamen’s claim that they came armed to return the land to its rightful owners, she commented, “I’m sitting here trying to write an acceptance letter for when they return all this land to us.” (She was laughing when she said it.)
The Tribal Council added that the staff of the Malheur Wildlife Refuge have been good partners in preservation of Paiute cultural sites. Rodrique told OPB FM, “This is our land, no matter who is living on it.”
Council Member Jarvis Kennedy asked, “What if it was a bunch of Natives that went out there and overtook that? Would they let us come into town and get supplies?”
The men asked on Facebook for supporters to bring them ‘snacks and energy drinks.’
Speaking of supplies, militia leader Ammon Bundy claimed on a YouTube video that they were prepared to “be staying for several years.” Then the men asked on Facebook for supporters to bring them “snacks and energy drinks.” Apparently, they do not intend to subsist for years on small game and ramen noodles.
Video on MSNBC on January 5 showed that militia members were repositioning heavy construction equipment, to which they said they found the keys, “for defensive purposes.”
Burns public schools have been closed since the standoff out of concern for student safety if gunfire should erupt in or near the small town.
Finally, Harney County Sheriff David Ward — whose authority the militia claims to respect — released a press statement reading in part:
I want to directly address the people at the wildlife refuge: You said you were here to help the citizens of Harney County. The help ended when a peaceful protest became an armed and unlawful protest.
The Hammonds have turned themselves in. It is time for you to leave our community. Go home, be with your own families and end this peacefully.
Adding to the general silliness of starting a revolution by occupying an empty building in a bird sanctuary, CNN uncovered that the leader of the group seeking a showdown with the feds they call “tyrants,” accepted a loan from those very same tyrants in 2010.
Ammon Bundy borrowed $530,000 through the Small Business Administration, which is a serious benefit from federal tyrants not even counting the 20 years of grazing fees totaling over a million dollars his father Cliven Bundy the deadbeat rancher does not intend to pay.
Note that this report sets out three events since the mostly out of state militia members, led by Nevadans, came to Oregon for an armed confrontation with the federal government. The news comes from two Oregon ranchers, a tribal government situated in Oregon, and an Oregon County Sheriff. The sum total of involvement by the “tyrannical” federal government was when the U.S. Marshals accepted the promised surrender of the Hammonds.
The militia came to Oregon expecting to announce sic semper tyrannis but quickly became persona non grata.
In this Rag Blog report Steve Russell includes elements from three articles he first published — on April 18, 2014, January 3, 2016, and January 7, 2016 — at Indian Country Today Media Network, and that material is used with permission.
Read more articles by Steve Russell on The Rag Blog.
[Steve Russell lives in Sun City, Texas, near Austin. He is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. Steve was an activist in Austin in the sixties and seventies, and wrote for Austin’s underground paper, The Rag. Steve, who belongs to the Cherokee Nation of Oklahoma, is also a columnist for Indian Country Today Media Network. He can be reached at swrussel@indiana.edu. ]
“Malheur” is French for Misfortune. Seems appropriate.
Steve, please write up a comparison between the Bundy protesters and armed Black Panther Party members patrolling Oakland in 1967. How do the two situations differ in terms of legal and constitutional issues?
In terms of carrying weapons, no difference. California law permitted carrying at the time and Oregon law does now and Mr. Obama signed a law that permits carrying on federal land.
In terms of stating that the guns were for defense against an unlawful government attack, should it happen, no difference.
Still, there is one difference. The militia is using lawfully carried firearms to convert a trespass (entering at a time or place not open to the public) into an occupation and essentially using the threat of shooting to defend possession of something they have no right to possess.
I’d say that difference is pretty significant, and if they’ve done enough damage during their occupation to amount to a felony, then the use of a firearm to aid commission of a felony is a big deal. (I doubt that the trespass is a felony by itself; it would not be in Texas. But criminal mischief might be, depending on the amount of damage.)
I wish I could find the link, but I can’t. I spent two hours looking.
I do know that the Las Vegas Sun Times investigated the claims the Bundy’s make to the Federal land in Nevada. Not only is there no evidence of any use of that land in the 1800s, there is no evidence that the ancestors of Bundy were in the state of Nevada until after World War II. The family can be followed through census records and they were not in the State of Nevada in the 19th Century at all.