Thursday, January 28, 2016

Searching for a Bundy Aftermath

By Bob Ferris

“Being in the system, we are going to take this opportunity to answer the questions on Art. 1, Section 8, Cause 17 of the United States Constitution regarding rights of statehood and the limits on federal property ownership.  Thank you and god bless America.” Ammon Bundy statement via his attorney
I am sincerely saddened by the passing of Robert LaVoy Finicum.  He died because he believed. Unfortunately he believed extremist falsehoods told him by folks who did not exhibit the same courage and convictions that he did.  That makes me terribly sad and, yes, more than a little angry too.

But not an hour after Mr. Finicum died folks, including Cliven Bundy, were using his death to further the same twisted logic that made him pick up a gun in hopes of becoming the heroic, government thwarting character portrayed in his book Only by Blood and Suffering: Regaining Lost Freedom. But life is not always an imitation of art.

Over the past month or so I have read (and written) much about federal land ownership per Articles I and IV of the US Constitution as well as about the Constitutional Convention, the Articles of Confederation, the various versions of the Northwest Ordinance along with case law relating to federal land ownership. I am not an attorney and this is complicated stuff, but if you have time and patience you can wend your way through it.

in Refuting the “Classic” Property Clause Theory by Eugene R. Gaetke North Carolina Law Review (1985) it should be noted that “western lands” above refers to the ceded lands east of the Mississippi.
If you take the path that I have in trying to understand this debate several things become apparent. One of the first things that jumps out is that words and their meaning are of paramount consideration. If, for instance, you tend to think that sovereignty, jurisdiction and ownership are equivalent concepts reading the analyses of the Enclave Clause (Article I) and Property Clause (Article IV) will challenge that intellectual construct because they are really not.  To make matters even more complicated, federal lands created under Article I are different than those governed by Article IV and even the Article IV lands are not all the same in terms of sovereignty and jurisdiction.  It is an interesting journey through the land of imperium and dominium.

in The Myth of the Classical Property Clause Doctrine by Dale D. Goble Denver University Law Review (1986)
Another finding of this research is that the position expressed by Ammon Bundy above falls into a class of what are typically called “classical” property clause theories.  These theories argue that Congressional actions and latitude are limited under Article IV regarding federal lands generally portraying the federal government as just another property owner within the state.  These theories are considered extreme within the legal community and are not supported by court decisions.
Second. That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof and to all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States…”  Arizona Enabling Act Section 20 (1910) 
Moreover, Mr. Bundy’s interpretation is an extreme version of this “classical” approach that does not even recognize that the Property Clause allows for federal ownership of land beyond the Article I lands after statehood.  This line of “reasoning” ignores the various statehood acts and state constitutions of Alaska, California, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, and Washington which all have language functionally similar to the above from the enabling act for Arizona—where Mr. Bundy resides—acknowledging federal ownership of lands and the continuance of that ownership after statehood.  It is important to note here that this no-property line of logic also brings into question the existence of Indian Reservations which, in part, would have been created under this same authority.

in Refuting the “Classic” Property Clause Theory by Eugene R. Gaetke North Carolina Law Review (1985) it should be noted that “western lands” above refers to the ceded lands east of the Mississippi.
I take considerable pride that the Property Clause was written by my ancestor Gouverneur Morris who also wrote the Preamble to the US Constitution including the “We the People” phrase meant to send a clear message to the states about who was in charge.   Given his tendency to speak his mind—often making intemperate comments—it is almost scary to contemplate how Gouverneur Morris would respond to the Bundys or others trying to force their extreme views on the rest of us at the point of gun or even a Bible.

And no doubt given all the sacrifices that Morris made for this country he would have little patience for those sitting around the campfire at Malheur talking about blood, mayhem and killing federal peace officers one day and expressing fear and “can we keep our guns and freedom?” the next.  But he, like me more than seven generations later, understands why E Pluribus Unum was chosen as our country’s motto (before very similar forces changed it in the 1950s).  We need to deal with this attack to our rule of law and then start the process of remembering that We the People is not a construct for extremist and extreme views to take our collective resources, but rather it is something that should bring us together for our common good.

Tuesday, January 26, 2016

When the Curiously Quirky Meet the Seriously Unhinged

By Bob Ferris


“This Complaint is part of a troublesome trend, whereby citizens purporting to act as "common law grand juries" file frivolous or non-cognizable complaints in federal court. These frivolous and patently misleading filings burden the judiciary and hinder its ability to administer justice in truly meritorious cases.” Marcia Morales Howard, District Judge commenting on Joaquin Mariano DeMoreta-Folch, Complainant, v. Manny J. Rodriguez, et al., Defendants 
Whenever I approach something my first inclination is to try to understand it.  So when I was reading about the Bundy Brigade’s "common law grand jury" calling in Joaquin Mariano DeMoreta-Folch, I thought that I would get to know him and see what he is about.  I watched the above video of a seemingly gentle fellow praising the wonderful nature of the US Constitution.  Nice.  He was a little confused about amendment numbers, cherry-picked some interesting messaging, and oversold personal empowerment, but one did not a sense danger or menace from him.
“Upon review of the Complaint, the Court is convinced that DeMoreta-Folch could not state a cognizable claim for relief even if the Court gave him leave to amend, and therefore granting such leave would be futile.” Marcia Morales Howard, District Judge commenting in Joaquin Mariano DeMoreta-Folch, Complainant, v. Manny J. Rodriguez, et al., Defendants 
Digging deeper I found he has a lot in common with tea cup poodles or Chihuahuas in that the world seems very big and scary around him therefore he always has to be on his guard from peril which means his life is pretty full of what I would call reflex barking, but in a legal sense.  One gets an idea of this when looking at his legal fillings and the responses from judges like at the top and above. One judge even took the extraordinary step of putting a note advising staff to no longer accept complaints from Mr. DeMoreta-Folch unless those documents were signed by an attorney.

From docket notes of St. Johns County Circuit Court Judge J. Michael Traynor in 2010
But this "censorship" and condemnation is not limited to the courts, it also seems to extend to others in the “common law grand jury” club like the National Liberty Alliance (NLA) that felt compelled to make sure that the world knew that Mr. DeMoreta-Folch was not connected with their organization which they were clear was not part of the so-called “sovereignty” movement.  The NLA also let folks know on their website that they were not the people who tore up driver’s licenses, birth certificates and other forms of identification.
“The purpose of this disclaimer is to deny any connection with Mr. Joaquin Mariano DeMoreta-Folch, who titles himself a God Grace Administrator, concerning his filing of papers in Sheridan County, Nebraska and any other papers he may have filed in other states/counties.” National Liberty Alliance statement.
The NLA does, however, share the belief with Mr. DeMoreta-Folch that Justice Scalia’s comments in United States v. Williams, 504 US 36 (1992) that described the independent nature of the federal grand juries, in their minds, essentially established a fourth branch of federal government.  Their belief is that this opened a door to citizens impaneling their own grand juries because we all got that right via the Magna Carta.  Whew.

"A panel of citizens that is convened by a court to decide whether it is appropriate for the government to indict (proceed with a prosecution against) someone suspected of a crime." Definition of Grand Jury
Now I love the Magna Carta—great and meaningful document—but every commentary I have ever read about modern day grand juries indicates that they are called by the courts (i.e., an existing branch of the federal government).  Moreover, when one looks at the Federal Rules of Criminal Procedure, Title III, Rule 6 (a) (1) we see the below wording. None of this leads a prudent person to believe that they can willy-nilly convene one of these bodies and believe that the results will be a meaningful or happy experience.
"In General. When the public interest so requires, the court must order that one or more grand juries be summoned. A grand jury must have 16 to 23 members, and the court must order that enough legally qualified persons be summoned to meet this requirement."
All of the above is still in the quirky range with participants giving themselves grand titles and getting official looking seals at Staples with which to emboss their "official," but incoherent documents.  If you are looking for an image think of it as legal "cosplay" an outlet for the paranoid and overly imaginative to carve a niche for themselves.  Not much different than Civil War reenactors or those who gravitate towards chainmail and armor.  Weird and sometimes annoying, but the world has worse problems.

Both of the above from DeMoreta-Folch filing in Nebraska

My wife and I were watching a movie the other night where one of the characters morphed from reasonable to dastardly and dangerous.  She described the newly formed villain as unhinged—essentially an event in his life had knocked him off his hinges.  Herein is the problem because when the quirky hits the unhinged like we are seeing in Oregon where folks actually believe there is a “fourth branch” of government and feel compelled to act on it we have serious problems as we can see below.

This video is disturbing but that is really the point.  Because this is the reality of what the Bundys have dropped on Harney County.  This is what we see when inflammatory and false rhetoric hits minds made mushy by life’s travels.   The scent of violence and lawlessness draws violent and lawless people which has created a powder keg which damages people whether it blows up or not.

In recent weeks I have talked to many folks about this situation and quite a few have commented about feeling great empathy for those having to regularly deal with the unhinged of the world—particularly peace officers and those working on federal lands who are routinely threatened, abused and vilified.  In this regard, I would ask those thumbing through their Pocket Constitutions looking for the Property Clause they so obviously missed to also show me where the US Constitution grants them the right to treat fellow citizens regardless of their employers like pond scum.

Monday, January 25, 2016

The Bundy Gangs Pitiful Eight

By Bob Ferris

Guilt by association in often a dangerous thing.  But if you look around yourself and see way more rap sheets than diplomas, things should click in your mind about who you are and who you count as associates.  This is particularly true when you are doing something wickedly illegal and acting like you bought and paid for the moral high ground.

In addition, you should look around and see who is not there.  And that in this situation that would be the big mouths and small minds who egged you onto to your “noble” action.  Where, for instance, is Glenn Beck who resurrected the faulty theories of W. Cleon Skousen, because he likely needed to replace his drug and alcohol addictions with a philosophical one?  Where too are sedition cheerleaders such as Zeldon Nelson (1,2,3), KrisAnne Hall and Michele Fiore?  And why was even your own father, Cliven, smart enough to stay away from this and the crew you assembled from his stand-off?

But enough of this, let’s play Cowboyz and Crimes!  All you have to do is match the letters associated with the participants in the standoff with the number or numbers of the crimes of which they have been accused or convicted. It’s and easy.  (Answers at the bottom).

In the above I identified these participants as "cowboyz" purposely, because in spite of all the fancy hats, the vast majority of them do not earn the major part of their income from cattle or sheep.  I did this also because although I believe that the Bureau of Land Management needs to take better care of those federal lands exposed to public lands grazing and there are some less than responsible public lands grazers out there, even the bad actors among this group do not deserve to be tainted by association with these bullies, thugs and reprobates. Outlaws, certainly, but not patriots or heroes.


ANSWERS: 1. E;  2. C;  3. All of the Above (Trick Question); 4. G; 5. H; 6. F; 7. A; 8. D.

PERSON KEY A; Ryan Bundy; B. Ammon Bundy; C. Blaine Cooper (AKA Stanley Blaine Hicks); D. Adrian Sewell; E. Kenneth W Medenbach; F. Brian Cavalier (AKA Booda Bear or Fluffy Unicorn); G. Pete Santilli; and H. Neil Sigurd Wampler.

Sunday, January 24, 2016

The Natural Law of Bullies and Babies

By Bob Ferris

You can certainly stake your future and life on a constitutional lecture about "natural law" and "common law"given by a diesel mechanic, a contractor, and a foster parent.  From Peter Walker's story and see also here.
Experiments have shown that if you ask a single person what the temperature of a room is that they will more than likely be wrong.  But if you ask twenty or thirty folks what the temperature is and then average their answers chances are you will be pretty darn close.   I think of this tendency when I ponder our country and this ridiculous standoff in Oregon: Here the Bundy Brood and their allies—including the Tea Party, Oath Keepers and Dominionists—are the ones declaring a 70F degree room 35F degrees with their wild claims about the US Constitution and the intent of the Founding Fathers.

Now admittedly there is plenty of room for debate about “natural law” and “common law” in terms of which rules the roost in the US Constitution and in what proportion.  There is also room for debate in terms of how much “natural law” is influenced by the Bible and what was meant by Thomas Jefferson, who was probably a Deist, when he wrote: "to which the laws of Nature and Nature's God entitle them…" in the Declaration of Independence.

There is debate too on how much intellectual evolution can be implied by the verbal trajectory from the Declaration of Independence which mentions God directly to the Articles of Confederation which employs the dampening euphemism of “Great Governor of the World” to the US Constitution which eschews mention of God totally.  How much of this change in language is caprice and how much was the result of a group starting to understand that they actually could be free of church rule after a millennium and half of obedience?

In ecology ecosystem strength and resiliency are often a result of diversity.  I suspect that some of that is at play in the United States as well.  Our diversity of thought—regardless of how annoying it sometimes is—acts “naturally” to make us a stronger nation.  I use the word “naturally” purposely because holding a wildlife refuge and community at gun point is both unnatural and un-American. As alluded to above, it is the functional equivalent of standing in that 70F degree room and saying it is 35F degrees, only in this instance if you do not agree with this mob you might get shot.  That is extreme.
“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” James Madison in Federalist Papers No. 10.
I say extreme because in all instances where there is debate and a choice this group has elected to take the most absolute view on the primacy of “natural law,” the influence of God on “natural law,” the Christian nature of this country, and their sole ownership of “truth” regarding the Founding Fathers.  They would de-diversify our country and therefore weaken it.  And in a stinging bit of irony, they are exactly the “factions” that the Founding Fathers warned us about and showed us how to address in their decisive handling of Shay’s Rebellion.

The solution looks pretty straight-forward but it is not really that easy.  Because this Bundy Bunch is a mere the pimple on a much larger tumor caused by the Citizen’s United ruling—acting in concert with the removal of the Fairness Doctrine and massive gerrymandering—which has had a much, much larger “un-natural” impact on this dynamic of diversity by causing a disconnect between the will of the citizens and the composition of Congress (see here and above).

Why, for instance, are Rob Bishop from Utah and others pushing actions to attack or dispose of federal lands when retention of federal lands and maintain access in the West is extremely popular—even in the West?   Why also are we seeing a slew of presidential candidates who want to drive us towards a theocracy when poll after poll indicate that millennials—the next generation of Americans—are less and less religious than their elders?

I sidetrack myself here not to get lost in some larger and needed discussion about the democratic peril we now find ourselves in, but rather to define the challenges faced by those agencies trying to solve this situation which the public wants solved but those who often control of the purse strings of these agencies apparently do not.  Congress has been informed about this domestic terrorism threat from anti-government and white supremacy extremists but elected to close the office of the Department of Homeland Security that was charged with dealing with these domestic threats (1,2,3).

You would think that with all the Pocket Constitutions at the Malheur National Wildlife Refuge that one of these "constitutional scholars" would have read beyond  Article I, Section 8, Clause 17 (the Enclave Clause) all the way over to Article IV, Section 3, Clause 2 (the Property Clause) because it seems silly to put people's lives at risk because some were too lazy to pick up the document they all seem to carry and  actually read it.    
So back to Burns.  The Burns standoff is critically important because while it is about a specific ideological conflict and how we deal with these conflicts in general, it is also about how we treat those unwilling to accept the answers offered up to them by our complex system.  In this latter regard we really have to ask ourselves questions about the legitimacy of any protest and the related issues. Are the people involved truly disenfranchised by a flawed system?  Have they been given legitimate avenues for resolution? Have they been heard? Are their arguments sound and justified?  Or are they just spoiled brats not getting their way?

In looking at Cliven, Ammon and Ryan Bundy we find that they all have been heard or allowed to participate in the system.  They have been shut out of nothing.  Cliven, for instance, was given a chance at responsible cattle grazing, has certainly burnt up court time, and even had legislation offered up to solve his "situation."  He failed at the first two and the last was declared un-constitutional.

Ryan Bundy has run twice for state office in Utah’s District 72 in 2008 (see above) and 2012. Ryan was selling the same platform he espouses at Malheur to folks in his own county and his extreme ideas came in dead last in a very conservative district near concentrations of federal land.  (If your show is not even loved on your home turf, one wonders why you would bother to take it on the road?)

And Ammon Bundy has run his family’s political dogma up the flag pole for the whole world to see and has received relatively few salutes, except for those that involve the mere minimum of fingers like the meme above. He like all of the Bundys have had full access to the system, but their arguments, platforms, beliefs, and behaviors have been found wanting in all instances.

So we are left with people whose extremeness puts them on the edge of the right-most error bar of political thought and who pick up arms to get their way which makes them not only removed from reality, but bullies.  Moreover, when asked to obey contracts, the law, or legal judgments they behave like babies whining, crying and ignoring their responsibilities as US citizens.

New Mexico rancher Adrian Sewell who says he will ignore his grazing permit.
In  all of this I cannot help, but think about the video recently posted on Facebook (click here) by the New Mexico rancher Adrian Sewell who has now joined the Bundy ranks (feel free to comment on his video, he has asked for input).  While he has the hat, stylish neckerchief and now the pocket constitution that marks his kind, there is something un-brave and hollow about his near whimpering video "battle cry" and rush to “defend” a document he has clearly not read. He seems not the cowboy of legend making America greater, but rather the shadow poser weakening our country with every misguided keystroke and uninformed utterance.  We all grow tired of this unnecessary drama.

[Note: After I published this piece I learned of Adrian Sewell's history of drunkeness and violence. In 2002 when he was 22 he threatened 8 Oklahoma State University students with an ax while he was on probation for a misdemeanor charge of domestic violence.  This standoff is attracting America's best!]

Tuesday, January 19, 2016

Malheur Wildlife Refuge Rally in Eugene

By Bob Ferris

It was raining lots in Eugene when the faithful met to show support for the federal wildlife refuge and protest the actions of the misguided few illegally occupying lands owned by all of us!

Lots were there for birds and other wildlife and others were there for other values such as hiking, horseback riding and hunting.

And lots were there because they or their families enjoy public lands and they want to continue to enjoy those lands that they legally own and pay taxes to maintain.

Some too were there because they were upset that the federal government was not doing more to curb public land abuse and lawless ranchers like the Bundys.

Other espoused the need to control these armed terrorists on the refuge and return issues like this to their proper venues in a country of laws.

But all were Americans who felt strongly enough about this to stand out in the pouring rain with smiles on their faces and hope that something will be done to peacefully end this situation and let those who have perpetrated this un-American and un-patriotic act pay their considerable debts to society for the trouble they have caused.

In the end before peacefully returning to lives interrupted by this senseless and unjustified occupation in Burns. Oregon, the crowd joined together not to spout rhetoric or baseless slogans about the US Constitution or slamming big government, but to sing about their joy of being American and celebrating their lands by singing "This Land is Your Land."

Monday, January 18, 2016

The Continuing Adventures of the Stepford Bundys

By Bob Ferris

Many of us remember the iconic 1975 movie The Stepford Wives and that scene where the robot version of Katharine Ross turns and we see the “eyes” that tell the whole story of what has transpired.  I feel exactly the same way when I see the Bundys and their allies with their carefully placed pocket Constitutions—issued by the ultra-conservative National Center for Constitutional Studies (NCCS) and sold in bulk for a buck a piece.   I knew in that immortal film scene as I do when I see these pamphlets proudly displayed that rationality and free-will have left the vicinity.

Cliven Bundy with his NCCS pocket Constitution. 
It may seem harsh to compare the Bundy clan and their ilk to robots, but when one steadfastly repeats untruths fed to them by discredited ideologues even to the point of arming oneself to defend false principles, you have to wonder whether or not they are really still card-carrying, thinking humans. When they place that pamphlet in their pocket, they signal to the rest of the world that they have not only sipped on the Kool-Aid brewed by W. Cleon Skousen, but they have asked for a second cup and are in hopes of a third.
“He [Ezra Taft Benson] believed that the Constitution would one day "hang from a thread," at which time Mormons would assume leadership of the nation and rescue it from certain and irrevocable disaster. (These ideas are not part of official Mormon Church doctrine.) in Fringe Mormon Group Makes Myths With Glenn Beck’s Help 
Nearly five years ago Alexander Zaitchik wrote an excellent survey piece for the Southern Poverty Law Center that looked at the current legacy of W. Cleon Skousen as well as his compatriot Ezra Taft Benson.  Mr. Zaitchik accurately drew the genealogy of Skousen’s reactionary anti-communist philosophies documenting explicit links between the NCCS, the John Birch Society, Glenn Beck, the so-called Tea Party movement, and the Oath Keepers.  This was pre-Bundy but you can see in this piece exactly where all the strange ideas about the US Constitution, government over-reach and even Cliven’s bizarre and bigoted comments about African-Americans and slavery originate.  All pure Cleon Skousen and all pure crap.
"When the elder Skousen died in 2006, Sen. Orrin Hatch (R-UT), paid tribute to him on the Senate floor, and even included a poem he wrote about his friend. Hatch detailed how Skousen helped launch his political career, sending a letter to 8,000 "friends," urging them to support Hatch's 1976 Senate candidacy." in The Skousen Admiration Club
It is easy to point to the Mormon links even up to and including Senator Orrin Hatch who gave the eulogy for Mr. Skousen, Tea Party Rep. Jason Chaffetz who has caused so much trouble with Planned Parenthood (1,2), and Utah state Rep. Ken Ivory who wants to take federal lands from their rightful owners, but that is too simplistic a view and likely unjust.
“A reporter from the Philadelphia Inquirer, Larry Eichel, reached the same conclusion after attending one of Skousen's lectures in the birthplace of the Constitution. "He [Skousen] preached a political return to the eighteenth century," wrote a dismayed Eichel.” in Fringe Mormon Group Makes Myths With Glenn Beck’s Help 
Yes I wrote this past weekend about the Mormon roots and vision of Deseret  and how that relates to the Bundy situation, but as Mr. Zaitchik has pointed out above the Bundys along with these other actors are longing for some centuries-old Mormon vision rather than one that currently exists.  In fact, the Mormon Church was quick to distance itself from the Bundy occupation just as Pope Francis has frequently differentiated between the current Catholic Church and actions from the past (and I am definitely not defending religion here, but rather freedom of religion).

I struggle with all of this in part because America is way too distracted with fear about radicalized Muslims when we should be more afraid of these radicalized and armed Mormons. But that is not fair to Mormons just as the ISIS or ISIL associations are not fair to the vast majority of the followers of Islam.  I could say our country had been “Beck’ed” or go with the Stepford reference, but neither one seems totally satisfactory or appropriate.  But we are still left with these ideological robots roaming the Refuge and that needs to end and they need to be brought to justice.

Sunday, January 17, 2016

Bundys Know the Way to Deseret

By Bob Ferris

It is difficult to sort out the Malheur situation, because of the different actors and their various sideshows, but at its core it is a Bundy show regardless of how loud and obnoxious Pete Santilli gets.

The Bundy situation in Oregon has forced me to re-read some American history as well as delve into the always interesting story of the Mormons.  This latter exercise was necessitated as we have heard reports that “guards” at the Malheur National Wildlife Refuge identified themselves as Captain Moroni and there was mention that landing in Burns made sense because this was once part of Mormon Territory.

In looking at this complicated narrative and set of issues something becomes clear: the Mormons have been most successful in the US when they have downplayed the idea of a theocracy, muted their differences with other Christian sects, and been more reasonable in their ambitions.  On the other hand, they have had serious conflicts even and including a one-year war with the US when they have tried to establish a Mormon theocracy, been open and notorious about differences especially polygamy, and been too ambitious (some would say greedy) in their territorial aspirations.

Monument to the Mormon handcarts.  
Before I jump into this I will say that there is a lot to admire in the Mormons.  They are supreme recruiters and colonizers.  One cannot help but admire folks who traveled across the plains to Utah carrying their possessions in a human powered cart.  Their policies about food storage, community canning (though I understand there have been some recent cannery issues) and charity work are all estimable.   They also have a history of being reproductively robust which was likely more advantageous during our pioneer days than it is now.
“The Bundys are aware that the land they've seized appears to be part of old Mormon territory.”  in Bundyland: Two devout Mormon brothers have created a fantasy camp for commandos in Eastern Oregon 
Which brings us to Deseret.  The Mormon religion was founded in April of 1830 and life for early Mormons was tough—so tough that persecution had forced them to migrate westward until they made the decision to settle in and around what is now known as Utah which was Mexican Territory at that point.  Their migration coincided with the Mexican War of 1846-1848 in which they participated by sending 500 Mormon soldiers for one year in the only religious battalion ever established in the history of the US Army.

This battalion had some amazing and noteworthy exploits but this was a two-year war that cost the US $100 million and involved some 26,000 regular army and 76,000 volunteers who suffered 13,000 casualties.  I add this comment about term and numbers not to belittle the Mormon role in this effort but rather to put it in perspective relative to the contributions of others mainly from east of the Mississippi.  My sense is that this level of invested blood and money by these eastern states should bear materially on who owns the West and why rather than where you live.

While this war was being fought the Mormons were migrating into Utah and in some instances beyond (see above map).  In this period the Mormons, under Brigham Young, designated the State of Deseret (pictured below).  Young and his Mormons drew lines around an area nearly twice the size of Texas and conceptualized it as a Mormon theocracy.  The Mormons operated this provisional state for roughly two years while they applied to the US government for approval of their plan as a territory with the ultimate goal of statehood status for Deseret.  The proposal was rejected propbably because of the theocracy structure, the issue of polygamy, and likely also because of the size of the concept.

The boundaries of Deseret.
The territory struggle continued with the map being revised, the name of the territory changed to Utah and it not being a theocracy. Brigham Young became the first territorial governor and the State of Deseret was dissolved during this time too.  There is a real chicken and egg dynamic involving Deseret as it was established by an entity that held absolutely no legal and scant moral authority to do so.  The Mormons did not own this land and some of the lands they claimed such as the area in Oregon in question they had not even taken steps to occupy as the first Mormon missionaries did not arrive in Oregon until 1851.  Moreover, the process through which the US acquired Oregon started with the joint occupation with Great Britain in 1818 which was a dozen years before the Mormon faith was even founded.
"Second. That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States,.."from Utah Statehood legislation.
The statehood battle was a long and bloody one mainly because of the core conflicts discussed above. But it eventually happened in 1896 with a much, much smaller footprint, the name of Utah, and clear language in the admissions act and the state constitution about federal lands within the state remaining in federal ownership as a condition of statehood (see above).

But the idea of Deseret or something similar remains strong with some, particularly in a family like the Bundys whose philosophical DNA has been so seriously and systematical infected by the likes of John Birch Society favorite and uber-conservative Mormon W. Cleon Skousen among other old-school Saints.  The idea of Deseret remains strong also because if one can nullify this idea of federal land ownership in the West, then the kingdom-like concept of Deseret returns and certain Westerners can take assets legally owned by all Americans.

If I were running a campaign to recapture the Deseret dream I would take several actions.  The first action I would take would be to create the impression that nothing was gained by having a strong central government with the powers that are clearly granted it by the US Constitution (click on above video or here to see wider version).  I would do this in part by creating the myth that everything was hunky-dory during the time between when the Declaration of Independence was signed and when the mean men made everything worse by signing that draconian US Constitution that has allowed for government over-reaching.

In this I would fail to mention the devastating failure of the Articles of Confederation (1,2,3) that set up a weak central government from 1777-1787 that led to a disastrously poor economy, squabbling between the states, wide-spread public unrest demonstrated by Shay’s Rebellion among other acts, and the fact that the ban on states undertaking diplomacy independently was absolutely unenforceable and causing troubles.  I would also ignore the Federalist Papers which argued for a strong central government prior to the adoption of the US Constitution because this only acts to weaken my argument.  I would even belittle the US Constitution by saying it was just a single page document—obvious not of a size to grant much in the way of powers in spite of the “page” containing more than 4,000 words and being 28 3/4 inches by 23 5/8 inches.  And that is exactly the tact that Ammon Bundy in the above video is doing while reading slowly and ponderously from his cue cards.

Here is a tweet by refuge terrorist who has modified the words of the iconic Marbury versus Madison ruling.  This was the gentleman who was recently arrested for driving a refuge vehicle to pick up groceries.
Then I would fight the considerable case law and Supreme Court rulings that argued against my point of view.  One of my particular targets would be one of the rulings that is literally carved in stone on the US Supreme Court building in Washington, DC which reads Judicial Department not “We the People” as suggested above.  Remove the power of the Courts and those pesky rulings in Nevada and Utah over the constitutionality of legislation transferring federal lands to state or local ownership are weaken.

And I would do all this not because I was a "patriot" trying to make a better America, but because I wanted to take what was rightfully earned and held by others as my own.  We on the other hand should recognize this dog-and-pony show at the Malheur National Wildlife Refuge near Burns, Oregon and the associated theatrics for what they are: Sedition for what they are trying to do to our Country and theft for what they are attempting with our public lands.

Friday, January 15, 2016

Bundys and Rebranding the Revolting

By Bob Ferris

I remember going to football games when I was young and program salesmen circulating around the crowd extolling their products and how no one could know the players without a program.  Red hot, they said.  I feel the same way now when looking at the white supremacy and anti-government movement.  With all the names and deceptive aliases it is a little like the arena scene in Monty Python’s Life of Brian (above) only with a lot of malevolence and without any hint of humor.   And it has terrific relevancy as we look at the all-star team of anti-American bigots Cliven Bundy’s boys have gathered on a federal wildlife refuge in Oregon.

When exactly did words lose meaning?  When did it become acceptable for those trying to rip the guts out of the US Constitution to label themselves “constitutional?”  When did it become cool to act like a traitor and label oneself a “patriot?”  Along these lines I wonder if the dildo dashing Jon Ritzheimer (above) understands that his patriotism claims and Marine pedigree seem somewhat hollow and soured when one understands that the reason he is no longer a Marine was his personal choice to get another tattoo rather than adhere to the Marine Corps’ pretty reasonable tattoo policy?  Choosing “ink”over country and service seems hardly the act of a “patriot,” but rubbing bacon on a Koran is certainly the act of a bigot.

And now the amorphous glob of ammo-sexual wingdings has once again called upon the Constitutional Sheriffs and Peace Officer Association —the latest iteration of the infamous Posse Comitatus (1,2)—run by former Sheriff Richard Mack made famous by his on-camera statement of a Bundy Stand-off strategy to surround the domestic terrorists with women as shields (wonder why Ammon often walks with women and children?).  Now I suppose labeling this group “constitutional” gives it some sort of ill-deserved gravitas, but I wonder if those sheriffs who belong to this organization understand that the word “sheriff” does not appear once in the US Constitution and does not even appear in all the state constitutions either.  But that seems of little import these folks.

The flag should not be used as "wearing apparel, bedding, or drapery", or for covering a speaker's desk, draping a platform, or for any decoration in general (exception for coffins)… Ordinarily it should be displayed only between sunrise and sunset, although the Flag Code permits night time display "when a patriotic effect is desired" and the flag is illuminated. Similarly, the flag should be displayed only when the weather is fair, except when an all-weather flag is displayed. US Flag Code
My sense is that all this re-branding of law breakers as "law enforcers," bigots as "constitutionalists" and traitors as "patriots" makes these folks feel better about themselves and what they are doing, but true Americans should be outraged.  Moreover, true Americans understand that it is inappropriate and disrespectful to drape a US flag over the refuge sign and display it 24 hours a day in bad weather (see US Flag Code) but in reality this tells a lot of the story of the occupiers who are big on overt displays and unsupportable rhetoric, but weak on rules, details and history.

Real Americans those who embrace the rule of law, celebrate the US Constitution and treat our flag properly and with respect want the Bundys jailed and these other folks punished.  They organizing peaceful and unarmed demonstrations to make their wishes known to other Americans and elected officials.  These are our lands legal held and managed as provided under the Property Clause  (Article IV, Section 3, Clause 2) of the US Constitution.

The first set of rallies for the refuge and public lands in general will be held Tuesday January 19 at noon in Portland (event details here) and Eugene (event details here).  Come to these or organize your own.

Thursday, January 14, 2016

The Bundys as Harbingers of Hermeneutics

 Excerpt from The Federalist Papers No. 10. The Bundys and the
Militias are factions as defined by Madison and Hamilton.
By Bob Ferris
“I believe the government is going to have to concede to something,” he said. “I don’t think these guys are going to give up without knowing that they’ve done something that benefits the people of our country or our region.” Grant County Sheriff Glenn Palmer in Members of armed group occupying refuge meet with Grant County sheriff in John Day
According to the Blue Mountain Eagle Glenn Palmer the Sheriff of Grant County in eastern Oregon made the above statement.  My immediate response is a face palm.  I say this because my sense is that if Sheriff Palmer was dealing with a bank robber that he would be unlikely to give the robbers money or allow them to kill a hostage or two as part of the deal.  Likewise, I doubt that he would allow a car thief to keep the radio or steering wheel from a purloined vehicle to make them feel better about the whole criminal transaction.  Sheriff Palmer also got a face palm for describing these domestic terrorists as “Americans” and “patriots.”

Taken collectively, this clearly indicates that Sheriff Palmer does not see these gun-slinging goons as criminals and he obviously has some sympathy for their cause.  Many would see this and shake their heads asking how is it possible that someone who has sworn an oath to uphold the law and the US Constitution take this position?  My answer in a sloppy and broad sort of way would be: Hermeneutics.

I am not a philosopher in the academic sense, but I did take classes that dealt with the intersection between philosophy and the environment and during one of those classes one of the professors, who was a philosopher, said: Hermeneutics describes the phenomenon of being trapped within the circle of your own interpretations.  Whether this is a correct interpretation of this term or not his definition stuck with me and I remember it now because of this situation with Sheriff Palmer.
“I’m sure most of the people being considered for his [Mayer's] job graduated from a college,” he said. “These people are the cause of the destruction of wildlife.”  Cliff Gardner, 74, a rancher in Nevada’s remote Ruby Valley. In "Ouster Sharpens Debate on Sage Grouse
Sheriff Palmer, Ammon Bundy, the livestock folks in Nevada who worked to fire Ken Mayer, and those stirring up additional trouble in Nevada seem like textbook examples of cognitive dissonance which often exposes them to ridicule outside of their communities or “circles.” We smirk a little at the Sheriff who stands tall for the law except where he disagrees with it—essentially becoming a law enforcement officer who does not enforce laws.  We draw cartoons and make parody videos of the hapless Ammon Bundy in his quest to shed himself of the tyranny of federal government (except for the half-million dollar federally guaranteed loan he received).  We giggle derisively at those who would advocate hiring a head of a wildlife agency who was not educated in that field. And we are baffled by those who repeatedly abuse natural resources to their detriment arguing that they are one who should control their own destinies (see below quote).
"I just don't see it ending that way here," he said. "The people who abuse the public lands the worst are the ones who will fight the hardest." Jerry Smith former district manager for Bureau of Land Management in Nevada in Tension between ranchers and federal officials is dangerously high in Nevada 
I know some who point to these logical disconnect problems in the rural West and trace the roots to settlers coming out of the South after the Civil War or to Mormons of a conservative bent like the Bundys.  I agree that this contributes, but I think it gets magnified by this idea of hermeneutics (at least as it was told to me) in that the folks in question are elected by local folks who hold these ideals and the elected officials are in turn influenced by them.

On some level it shares a little bit with the Stockholm Syndrome as I have seen many who manage public resources fudge some in favor of the locals rather than holding hard and fast to the science that brought then to dance in the first place.  In this I assign no “right” or “wrong” because no one regardless of how right they are wants to be the object of hatred in their community.  This tension is a clear theme in the LA Times story and also in the recent Op-ed written by Gloria Flora in Time Magazine).

So where are we left?  Do we just ignore this, avoid the conflict and write this off as unsolvable regardless of its inherent illogical nature?  The Founding Fathers would say: No.  In point of fact they would argue that this was why they wrote the US Constitution in the manner that they did over the objections of some.  They made the case for a stronger central (federal) government, because they were concerned about the “factions” like the Bundys or those users of federal public resources who feel those should be “local” resources rather than owned and managed for their current owners (see Federalist Papers No. 10).

My sense is that we have to do at least two things.  The first is to listen to what Rep. Peter DeFazio has to say to federal agencies (above) and echo that sentiment around the internet and in other public discussions to force our government to protect the US Constitution and our founding principles (see here for a list of potential charges).  The second is to show federal law enforcement entities and elected officials that we support taking prudent legal action against these domestic terrorists.  In Oregon there are two opportunities to do that next week on Tuesday at noon in Portland and Eugene (see here).  My hope is that others around the country follow these examples.

Wednesday, January 13, 2016

Hey Bundys, Just How Many Cartoons and Parodies Does it Take?

By Bob Ferris

More than thirty years ago I spent two seasons working as an outdoor educator at a residential camp in Monterey County.  It was tough and rewarding work which put a dozen or so folks in close proximity for a couple of months which is mostly a good thing, but not always.  I remember this one on-site school nurse we had who was a fundamentalist Christian and really a pain in the ass.  He was kind of a bully to kids and was particularly un-liked by many of the two hundred or so middle school-age students that attended each week. It was a problem. One morning this fellow came to the staff dining table at the front of a large hall beaming with a flat cake box in his hands.  When he flicked open the top we all gasped at what we saw.  He gushed and exclaimed that he was so loved that someone baked him a cake shaped like the giant redwood trees we had all around us.  The rest of us understood that the shape was really that of a large red penis—it was a dick not a tree.

Our nurse “friend” clearly did not get the message. The same is true for those at the Malheur National Wildlife Refuge, in particular Jon Ritzheimer .  The exact same intention was meant by those sending dildos and other suggestive materials instead of Fritos to the domestic terrorists encamped there.  Now I am not expecting a large amount of sensitivity from someone who once rubbed bacon on a Koran, was kicked out of the US Marines for violation of their tattoo policy, and who threated to arrest a US Senator for treason, but the message has been delivered in so many ways and by so many parties that one wonders how these clowns who are wasting tax dollars, media cycles, and our patience will ever get the message.
“The Bundys are aware that the land they've seized appears to be part of old Mormon territory.” from Bundyland: Two devout Mormon brothers have created a fantasy camp for commandos in Eastern Oregon in Willamette Weekly
So what do you do when you run out of friends?  When you are a child you invent imaginary friends. For an adult this is more difficult but these wayward warriors have accomplished the task by inviting a fake “judge” named Bruce Doucette to their camp.  This is the first step in assembling a fake grand jury and holding a fake trial which will exonerate these silly squatters and charge the real folks at fault—the local sheriff, local politicians, refuge staff and federal prosecutors whose major transgression seems to have been being at the wrong place at the wrong time when this cyclone of insurrection insanity hit town.

Their secondary sin was breathing within the mythological boundaries of Deseret a territory and/or state which never legally existed (1,2,3) and was largely made up of land purchased or gained through treaty by the US with negligible help from the Mormons and no help from the Bundy family who did not arrive on the scene until the 1870s (my family had at least three who served in the Mexican War of 1848 with one of them killed).  And a lot of this was catalyzed by the work of an obscure, Canadian-born former FBI agent and lawyer named W. Cleon Skousen who was a member of the John Birch Society’s speakers’ bureau, a Mormon and founder of the group National Center for Constitutional Studies (formerly known as the Freemen Institute) whose Constitutional pamphlet is carried so prominently by Cliven, Ammon and Ryan Bundy as well as Jon Ritzheimer (1,2,3)   .

So let’s take a moment for a little backstory.  In a move similar to the certificates issued by the Universal Life Church, a number of folks seem to have declared themselves superior court “judges” of the Continental United States of America, though none of them appear to have any experience with law except, perhaps, breaking it (see here).  One of these judges, for example, is in Alaska and named Anna Maria Riezinger.   She recently issued arrest warrants for the President and Congress in December 2015 and caused such confusion that she earned herself a Snopes entry.

Another of these “judges” is a fellow named Steve Curry who is currently presiding and residing in a jail cell in Colorado.  “Judge” Curry seems to have another appellation as he is also known as Meteorite Man  after illegally selling a fake meteorites on E-Bay.   Don’t worry. the judge is doing fine and his wife Sandra has been released from jail after bopping a cop during his arrest, but he does need supplies because he went to jail without sufficient supplies to conduct his business (see above). It does not appear that he needs snacks, however.
“That person identified himself as Bruce Doucette, a Denver resident who has never been to law school or been appointed to a state, county or federal judgeship. "I'm a very honest man with a lot of integrity, also very educated," he told The Denver Post. "I wouldn't credit any institution for the knowledge I have," he said.” In Operation Patriot Rally founder made promises, raised concerns Denver Post 
The judge in question who is going to help those at Malheur, is a person named Bruce Doucette. Although he has no obvious legal experience, he is warmed up and ready to go, because he just got back from unsuccessful efforts to free Meteorite Man from jail in Montrose in December.  Moreover, he was working with Rodger Marsh in November on a situation in Colorado until Mr. Marsh was jailed for parole violations in Texas and Indiana.  And yes I am being sarcastic.  And yes I am making fun of the “judges” and also the fools who have put their faith in folks who quite likely could be crazier than them.

So in closing I will end with one of my favorite Dan Hicks songs that is so appropriate in this context and sets such a perfect tone to these proceedings.  Please enjoy Mr. Hicks and the infamous Lickettes—they are much more worth your attention than these yahoos.

Crime and Punishment Bundy Boyz Version

By Bob Ferris

Ammon Bundy surrounding himself with women and children at Malheur National Wildlife Refuge
Recently I asked the folks who actually own the Malheur National Refuge—all citizens of the US—what their thoughts were on what crimes had been committed, what should be the punishment for the most egregious acts, and who should be punished.  My general sense from the comments is that most folks want a peaceful resolution—not so much because they have grave concerns about or affection for those holding the refuge hostage to their unfounded, but strongly held principles, but rather that they did not want martyrs created who would act to foment more of these unlawful and disruptive acts.  This latter concern also drove a firm belief that material charges and punishment needed to result from this action.  Period.

Ryan Bundy Destroying Fence on Malheur National Wildlife Refuge
In looking at the types of grievances espoused by those expressing an opinion there tended to be three main types of transgressions that needed to be redressed: 1) those of a legal nature; 2) those that caused taxpayers or businesses financial impacts; and 3) those that caused insult to America, our US Constitution, or the interests of most Americans.

Legal Violations

Folks concerned about this episode identified a number of what they felt were legal violations ranging from criminal trespass and willful destruction of federal property in excess of $100 to unlawful use of federal vehicles and suppositions about charges relating to computer access and the unauthorized accessing of federal files along with the personal files or property of refuge employees. There were more charges out there mentioned like breaking and entering and threats against federal employees, but they were mentioned less frequently than the other four.   It was also noted that the seriousness or the penalties associated with many of these straight-forward legal transgressions seemed to magnify when firearms, inter-state travel, and planning or coordination were involved and they appreciated that.

Another strong theme in the comments was one of felonies.  Respondents thought that it was important that these lawless and armed individuals were convicted of at least one felony as their hope was that would legally prevent them from owning or purchasing firearms in the future.  This option was also favored as it would require some jail time which the respondents strongly desired.

Financial Impacts

It is really hard to assess what the financial impacts are from this illegal action, but they are certainly not trivial.  One local judge pegged it at $70,000 a day just for Harney County and then you add in the federal costs and this goes much, much higher.  If the Judge is correct and there is no reason to believe he isn’t, then Ammon and Ryan are quickly accumulating a government debt equal to that of their father Cliven Bundy with his fines and unpaid grazing leases.

While I think that financial awards from legal proceedings are wonderful things, the large ones are generally not collectible because assets can be protected (Cliven Bundy’s ranch is held in trust) or be insufficient to cover the obligation (my sense is that Ammon may have some assets, but Ryan probably not so much).  But for the Bundys at least there is one asset that hangs out there relatively unprotected. That is the roughly 1,000 head of cattle that the Bundy family is still illegally grazing in on public lands in Nevada.  A good guess of their wholesale value would be in the $1.2 million range.
So what if the financial settlement to this were couched as a choice between 1) having liens attached to properties, business and other assets held by the Bundys and their inner circle or 2) having them all voluntarily round up the fugitive Bundy cattle on public lands and sell them in full or partial satisfaction of this debt?  My sense is that 70% of the proceeds should go to the federal government towards what all the Bundys owe them with the remaining 30% split between Harney County in Oregon and Clark County in Nevada to take some of the sting out of the expenses for the two stand-offs.  I think this latter solution would be true justice and go a long ways towards bringing closure to this on a lot of levels.

Insults to America and Americans

Though hard to quantify, the impact of the Bundy gang’s actions have had a profound effect on America.  It has made many alternatively mad or sad and also empowered the uneducated and gullible to take actions they otherwise would not.  These two brothers and their followers have compromised our sense of safety, worked to corrupt and confuse the meaning of our US Constitution, and have shaken public confidence in public officials and agencies.  The event they precipitated has needlessly caused pain and suffering that in some manner needs to be redressed.  My sense is that this influences both how we deal with the legal and financial issues as well as the 800-pound gorilla in the room: The Question of Sedition.

From Cornell 
Seditious or Just Plain Stupid? 

Many commenters talked about domestic terrorism or sedition charges in connection with the Bundys and their inner circle both in arguing for the fullest prosecution making an example of them and also in granting them a “pass” because they were stupid and duped by folks preying on the impressionable and naive.  There was not a clear consensus on this matter as both sides of this debate had strong arguments for throwing the book at them or holding back either by going for the five-year sentence rather than the 20-year option or simply by focusing on the bluntly criminal actions they had taken mentioned above.   Here, maybe, our end-game should be determined by their end-game because how they extricate themselves from this debacle they created will say as much about them as Americans as our selection of punishment says about us.

Circles of Guilt

In a very real and consequential sense all who participated in this including those who created the seeds of false thought that acted as a catalyst to the occupiers, the core occupiers themselves, and those who piled on are guilty of something relative to this action.

The Bundys and their inner core need to be punished within the parameters described above which include felony-style jail time, substantial financial penalties and the confiscation of their weapons as well as the future right to own same.  These are minimums and anything less would be a disservice to the American public.

Those who came latter and armed like the III Percenters or members of the Pacific Patriots Network need to read history—particular parts about Shay’s Rebellion and other similar events—so that they understand that the Second Amendment that they so embrace was written not for them but to protect the rest of us from them.  How they are dealt with should depend on what they actually did, but at a minimum it makes sense for them to be fined and put on a watch list that prevents them from purchasing firearms in the future as they have demonstrated a decided lack of judgment which should be require for firearm ownership.  They also need to stop pretending they are members of a law enforcement entity because they are not.

The last group—those who falsely sowed the seeds of this rebellion of a sort—are the most difficult to deal with but are perhaps the most important.  We seem at times unwilling or unable to deal with those who tell obvious lies and then walk away when others buy their nonsense and pay the consequence.  Those like David Barton who are called "patriots" for miss-characterizing the history of this country and the ideas of our Founding Fathers or KrisAnne Hall who uses her training as an attorney as a credential to spread her own twisted read on the US Constitution need to pay some price for their actions (see here).  Nevada’s Michele Fiore, Utah’s Ken Ivory (see above video) and others forwarding the taking our public lands belong on this list too for pushing this idea that the Enclave Clause applies to all federal lands when that has been tested repeatedly in the courts (see end of this piece).

What to do with those who directly participated in this Harney County dust-up is tough, tricky and necessary, but while we are doing that we also need to think about how to deal with these others who may be an even bigger threat as their acts light fires of unjustifiable descent wherever they find audiences who accept something that sounds right rather than demanding that what is right.


Thanks to all who offered up suggestions and comments on GREEN DREAMS, Jail the Bundys, Now and to me personally.  I greatly appreciate the suggestions and hope that I have synthesized them in a manner that reflects most all that was offered.