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.

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