Reflection on Bundy Ranch and Armed Resistance to Court Orders

The Cliven Bundy federal trespass case brings to my mind two other court cases – a traffic citation contested by a sovereign citizen type and the 1832 case of Worcester v. Georgia in which Andrew Jackson reportedly made the probably apocryphal statement, “Justice Marshall has made his decision, now let him enforce it!”

The Bundy trespass case, for those who haven’t followed it, involves a Nevada rancher who is grazing his cattle on public lands and has been for quite some time. His family had paid rent for quite some time, but in the 90s, Bundy decided he’d prefer not to pay for the use of the land. The federal government told him he was trespassing and so he decided that he wouldn’t recognize the authority of the federal government. The government took him to court and won. The federal court presumably (I haven’t seen the text of the order) found that Bundy’s claim that he had inherent authority to graze on someone else’s land for free was so much nonsense. Here is a timeline of events. Most recently, Bundy has gained notoriety by resisting eviction efforts through threats of armed violence. He is dressing it up in some kind of crusade against an overbearing federal government. But, at its heart, the federal government has title to property that he wants for himself, so he’s pretending those property rights don’t exist in order to enrich himself. He does not deal with the inconvenient fact that, if the feds never had the right to the land, then title probably rests with Mexico who transferred title after being beat in a war with the U.S. government that Bundy claims never gained the right to that land.

The Worcester case cited above also had to do with the nature of the federal government and its relation to the states:

Chief Justice John Marshall laid out in this opinion the relationship between the Indian Nations and the United States is that of nations. He argued that the United States, in the character of the federal government, inherited the rights of Great Britain as they were held by that nation. Those rights, he stated, are the sole right of dealing with the Indian nations in North America, to the exclusion of any other European power, and not the rights of possession to their land or political dominion over their laws. He acknowledged that the exercise of conquest and purchase can give political dominion, but those are in the hands of the federal government and not in the hands of the individual states.

The court ruled that the individual states, had no authority in American Indian affairs.

The purported quote from Jackson, however, adds an additional layer of interest for me — proclaiming that Chief Justice Marshall would have to enforce the order himself. This gets at a fundamental question of court authority. When you dig down, court authority rests on a foundation of men with guns willing to, if necessary, go out and force compliance with the court’s order. Absent this force, a court order is little more than a guy in a robe writing words on a piece of paper. It becomes something else when the Sheriff or the U.S. Marshal or the 101st Airborne is willing to back up that order with force.

The local traffic ticket was just a case I had some incidental involvement in when one of my clients was subpoenaed as a witness. Basically, the defendant who had been cited for driving without a license or some such wanted to have a jury trial focused on the ability of the government to regulate his behavior at all and of the personal jurisdiction of state courts to preside over efforts to regulate his behavior. Rather than focusing narrowly on whether he did, in fact, engage in the prohibited behavior or, somewhat more broadly, on whether the particular law was Constitutional, this individual wanted to bog the process down in a debate over the foundations of law and government. As a practical matter, no sustainable government can entertain existential challenges every time it attempts to regulate the behavior of its citizens. And the judge wasn’t having it either. He correctly recognized that, if the individual insisted on a jury trial for the traffic ticket, he could have it. But the jury’s role was going to be to determine what, in fact, happened — whether this individual engaged in the prohibited conduct. The jury was not going to be asked to determine whether our system of government is, as a general proposition, a good idea. At the end of the day, this defendant was not some deep political thinker leading a well thought out movement for change. He was mainly just pissed off that someone was telling him what to do. In short: throwing a tantrum.

And that’s what we seem to have with this Bundy fellow. He would prefer that the government land be his land, and he’s mad that the government won’t let him use the land as if it were his own. He has convinced himself that he has a right to the land. But the underpinnings of that imagined right falls apart rather quickly when you look too closely at them. If the United States government is not in the property rights business out in that stretch of Nevada, then Bundy doesn’t even have a claim to his land — let alone the adjacent parcels of real estate. He’s squatting on Mexican land — land that Mexico has not regulated because of a (if we adopt Bundy’s way of thinking) misguided notion that the United States had jurisdiction over the land and a willingness to use force to assert its rights. Property rights under U.S. law flow from the premise that the land in question is within its jurisdiction. And it does no good to claim that those rights flow from the authority of Nevada because, if the U.S. doesn’t take the land from Mexico, Nevada never has authority over the land in the first place.

I’ll be interested to see what the government and the court do from here. They backed off for the time being in the face of armed resistance to a court order. Unless I misunderstand the nature of the proceedings, this would seem to be the time for some sort of criminal obstruction of justice charge. Law, in the end, boils down to potential violence. The government has asserted a monopoly on violence, and it has been crystallized into a body of law which dictates when and how that force can be used. That we are a “government of laws, not men” means that we have attempted to create a bulwark against arbitrary and self-serving use of force by individuals. After a legal decision has been made and the subject of that decision has been afforded due process in the course of that decision being made, the government has a strong interest in using that level of force necessary to coerce compliance with the law. If the importance of the legal decision is marginal and the implementation of the decision is more or less just ignored, that’s probably acceptable from time to time. But highly publicized armed resistance is detrimental to the long term viability of the rule of law. That’s why President Washington took armed troops to put down the tax protestors in the Whiskey Rebellion. If Bundy continues armed resistance to court orders, I presume he’ll meet with the same fate.

Update I just wanted to link to some relevant court documents (pdf) in the Bundy case. From the United States District Court for the District of Nevada’s order of July 9, 2013.

Bundy principally opposes the United States’ motion for summary judgment on the ground that this court lacks jurisdiction because the United States does not own the public lands in question. As this court previously ruled in United States v. Bundy, Case No. CV-S-98-531-JBR (RJJ) (D. Nev. Nov. 4, 1998), “the public lands in Nevada are the property of the United States because the United States has held title to those public lands since 1848, when Mexico ceded the land to the United States.” CV-S-98-531 at 8 (citing United States v. Gardner, 107 F.3d 1314, 1318 (9th Cir. 1997)). Moreover, Bundy is incorrect in claiming that the Disclaimer Clause of the Nevada Constitution carries no legal force, see Gardner, 107 F.3d at 1320; that the Property Clause of the United States Constitution applies only to federal lands outside the borders of states, see id. at 1320; that the United States‘ exercise of ownership over federal lands violates the Equal Footing Doctrine, see id. at 1319; that the United States is basing its authority to sanction Bundy for his unauthorized use of federal lands on the Endangered Species Act as opposed to trespass, see Compl. at ¶¶ 1,3, 26-39; and that Nevada’s “Open Range” statute excuses Bundy’s trespass. See e.g., Gardner, 107 F.3d at 1320 (under Supremacy Clause state statute in conflict with federal law requiring permit to graze would be trumped).

Nor is there a legitimate dispute that Bundy has grazed his cattle on the New Trespass Lands without federal authorization. The United States has submitted Bundy’s deposition excerpts indicating that Bundy has grazed livestock on the New Trespass Lands and further evidence of the trespass of Bundy’s cattle in those areas. Notwithstanding Bundy’s contentions that the observed cattle bearing his brand may not in fact be his own, such a denial does not controvert Nevada law regarding prima facie evidence of ownership of branded cattle. In sum, in this most recent effort to oppose the United States’ legal process, Bundy has produced no valid law or specific facts raising a genuine issue of fact regarding federal ownership or management of public lands in Nevada, or that his cattle have not trespassed on the New Trespass Lands.
. . .
IT IS FURTHER ORDERED that Bundy is permanently enjoined from trespassing on the New Trespass Lands.

IT IS FURTHER ORDERED that the United States is entitled to protect the New Trespass Lands against this trespass, and all future trespasses by Bundy.

IT IS FURTHER ORDERED that Bundy shall remove his livestock from the New Trespass Lands within 45 days of the date hereof, and that the United States is entitled to seize and remove to impound any of Bundy’s cattle that remain in trespass after 45 days of the date hereof.

IT IS FURTHER ORDERED that the United States is entitled to seize and remove to impound any of Bundy’s cattle for any future trespasses, provided the United States has provided notice to Bundy under the governing regulations of the United States Department of the Interior.

Comments

  1. Wilson E. Allen says

    The property rights to the land my humble house in Indianapolis sits on come from a treaty with the Indians made by the Federal government. The Feds then sold for a small fee some land with a deed signed by President Monroe. Over the years, successive owners have transferred their property rights down to me. Without that initial deed from the President wouldn’t Tecumseh’s heirs be the rightful owners? All Hoosier landowners have a stake in dismissing the folly of Bundy’s claim to free usage of American land…

  2. says

    An aspect of this that hasn’t gotten much attention is the text of the Nevada Constitution:

    All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existence, and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.

    See http://m.theatlantic.com/politics/archive/2014/04/the-irony-of-cliven-bundys-unconstitutional-stand/360587/

  3. says

    It is hard to find impartial news regarding this case.

    Your comments seem to be based off the left-wing assessment that this guy has been using federal land for years, stopped paying fees because he was greedy, and now is mad that the feds are being fair and not letting him graze for free.

    The right-wing assessments I’ve seen say that the land should belong to Nevada, should be managed by Nevada, and the BLM is overreach. They say that the fees increased to such a level (to protect the turtles) that the Bundy family would not be able to operate their business, and that Bundy was willing to pay the same fees as before, and will still pay those fees to Nevada if he was permitted to.

    I don’t know what to believe. It does appear that a majority of the land of Nevada is federally controlled (even if no one knows exactly how much: http://wildhorsewarriors.blogspot.com/2010/04/87-percent-deception-nevadas-federally.html), and I really don’t understand how this land can be part of Nevada but not under Nevada control.

    It seems that this system of public land with permitted private use is the cause of most of this confusion, and I’m curious why such a system exists instead of privately owned land.
    In other words, why doesn’t Nevada control this land and sell it to whoever wants to buy it, with the ability to have easements restricting its use?

    • says

      I don’t think there is a difference of opinion that a court decided in favor of the U.S. Government and against Bundy. In that sense, what liberals and conservatives think about the matter is beside the point. The court ordered him to do something. (pdf) That order has not been overturned on appeal, and he has failed to comply with the order.

      Those larger questions may have their place – the debates of Congress or maybe Nevada’s legislature perhaps. But, in this context, Bundy has lost in a court of law. He needs to suck it up and remove his stuff from our property.

    • says

      Wow, great link! Thanks!
      Great explanation of the BLM’s role and how they’re going to be the bad guy to everyone:
      “BLM lands are administered for the sustained yield of multiple uses
      (including recreation, livestock grazing, timber harvesting, watershed protection, and
      wildlife and fish habitat management), although users typically want higher outputs
      than BLM provides, while environmental groups typically want more protection (and
      lower outputs).”

      It also makes clear that the state of Nevada was late to the statehood party, and as such, got the shit end of the stick when it came to state’s rights:
      “A fundamental obstacle was that Nevada, and other states, agreed as a condition of statehood to
      disclaim forever “all right and title to the unappropriated public lands lying within
      said territory, and that the same shall be and remain at the sole and entire disposition
      of the United States.”42 ”

      So, yeah. Bundy has to suck it up and deal.

  4. Steve Smith says

    And, fwiw, this is a snippet of info from Wiki relevant to the issue:
    “Over 80% of the state’s area is owned by the federal government. The primary reason for this is that homesteads were not permitted in large enough sizes to be viable in the arid conditions that prevail throughout desert Nevada. Instead, early settlers would homestead land surrounding a water source, and then graze livestock on the adjacent public land, which is useless for agriculture without access to water (this pattern of ranching still prevails)” .

  5. says

    It’s pretty indisputable this guy lost in court. But of course he’s a conservative, so his civil disobedience must be evil. Left wing civil disobedience (Occupy, fraudulent doctors excuses for union members in Wisconsin, etc) on the other hand is wonderful and should be praised. Remember, any time the right wing does something, it’s “different” and so there can’t be any analogies to anything any left winger ever does.

      • says

        There are many cases of barricades similar to this to prevent illegal immigrants from being deported. I don’t see that anyone was actually using arms to resist in this case, merely that they were armed. But you demonstrate my point. There’s always some factor that singles out right wing civil disobedience as somehow wrong, according to liberal commenters. I could be wrong here, but I’ve never seen you write against any act of left wing civil disobedience anywhere.

        Clearly the left in America doesn’t believe in the rule of law much either. It’s not Republicans setting up “sanctuary cities” where they refuse to cooperate in the enforcement of federal law (immigration), or getting involved in the sale of products that are illegal at the federal level (marijuana), or declining to enforce/defend laws they don’t like (though there may be the occasional Republican AG who has signed on to the gay marriage wave here).

        FYI: Some conservatives have gone against Bundy:

        http://www.powerlineblog.com/archives/2014/04/sympathy-for-bundy-respect-for-the-rule-of-law.php

        • says

          I don’t see that anyone was actually using arms to resist in this case.

          Bundy Ranch Sniper

          But, if you want to relegate this to another round of “both sides do it,” I guess that’s your prerogative. I see a fundamental difference between armed resistance and nonviolent civil disobedience.

          Also, as you point out, this isn’t necessarily a conservative versus liberal thing. Plenty of conservatives view Bundy’s tantrum as being very wrong.

          • Freedom says

            In one case, the patriots have bullets and inflict a lot more casualties.

            In the other, you have the Massacre of Amritsar.

          • Carlito Brigante says

            One the one side, you have armed terrorists protecting lawful actions of law enforcement. One the other side, you have Facebook dicks with disdain for the rule of law and an understanding of American Jurisprudence and history that would earn them and “F” in eighth grade American HIstory.

            • Freedom says

              The “Rule of Law” is more commonly just the “Rule of Private Interests.” That a few people conspired to give their interests a statutory citation doesn’t legitimize what they did.

              Why are only an enlightened few shocked that the

              Bureau

              of

              Land

              Management

              read that name, again

              has armed troops and military vehicles?

            • says

              Just reading between the lines. After mentioning Occupy Wall Street, he then spent the majority of his next two comments complaining about sanctuary cities, of which

              1) there are none locally

              2) there is no current news about a sanctuary city

              and

              3) the upshot about sanctuary cities is they refuse to spend their money or time doing the Federal Government’s job. They neither break the law nor are they engaged in stopping Federal authorities from executing the law.

              To be so focused on them, over two comments, while making insane allegations regarding “the Left,” causes me to believe he’s not too fond of the undocumented folks which populate our country.

              QED

              • says

                Well, I guess I’ll let Aaron speak for himself if he cares to. I didn’t get an anti-immigrant vibe from him. Rather, I felt like he was taking more of a false equivalency position; taking pains to note issues on which “the Left” was resisting the law.

                I happen to think resisting with force or the threat of force is significantly different than more passive approaches. I don’t always agree with even peaceful civil disobedience, but I find it much less objectionable as a form of protest.

          • Freedom says

            People are resisting the government to force the government to change it’s course. I’m not sure they care what label you’d prefer to apply to their conduct in an attempt to control and restrain them.

        • Freedom says

          No. A court ruled. That doesn’t make it “legal” or “law.” Lots of bad court rulings out there that don’t deserve a lick of respect. Each of us has the moral duty to determine the law for ourselves.

          • says

            That is more insane than ever. We are a nation of laws, not men. Each man can determine his code and lawful doesn’t always mean right, but one does not get to a) substitute his/her judgment for due process or b) determine what is legal. Bundy has broken the law.

            • Freedom says

              Right. We’re a nation of laws, not men. That means we have an obligation to follow the law, not the opinion of a person or a group of persons.

              Our laws were written before man uttered his first word, and no man can give you permission to disobey the law, nor can any man exempt you from accountability for violating the law.

  6. says

    I remember these Sovereign Citizen numbnuts from when I was working at the Daily Journal in Johnson County — homebase of Koresh sympathizer Linda Thompson — in the mid-90s. In fact, it was Thompson’s “legal” advice that had people in the county putting homemade license plates on their car and plying our paper with needed revenue by placing long classifieds declaring their independence. At the time, the local government, including the sheriff, looked at these guys as fools and pains in the ass. Now, they’re The Base. See Dean Heller and Brian Sandoval’s supportive comments.

    Regarding civil disobedience, I don’t have an issue with that, in principle. Often that’s how truly unjust or outdated laws get changed. What’s a little frightening here is how eager King Kong Bundy’s supporters are to have an armed conflict, though I guess the NRA’s long campaign to portray the government as jackbooted thugs who will attack if we aren’t armed to the teeth helps with that mindset. (And I guess the BLM turning around — for now — to prevent a Ruby Ridge or Waco plays right into that.)

    • Freedom says

      It’s quite clear that you have no grasp, whatsoever, on what the NRA exhorts. The NRA is the establishment. It’s a very mainstream organization that works solely through lobbyists and the electoral process.

      Alex Jones, however, is Thomas Paine. Drudge is also in there.

      The Freedom Movement is in no way “the Base” of the Republican Party, and that’s why Democrats win. Republicans are mainstream, with a very high percentage living off government employment or government benefits. Republicans love the status quo, and statistics bear that they’re the most anti-Liberty group out there. Republicans hate Freedom with a much greater zeal than do the Democrats. The Republican Party declared war on Ron Paul, and that marked the last time you’ll see the Freedom folks in the Republican ranks.

      The Freedom folks are no fans of Obama, Biden, Hillary, Pelosi, Feinstein, Bloomberg, but a centrist, pro-gun, Democrat could easily grab them.

      Your analysis is very wide of the mark, strictly tied to urban stereotypes and insularity.

      • says

        when did this guy go so far over to the kook side? He make Garrison and the Chicks on the Right look like Centrists

        Alex Jones? Lew Rockwell? These aren’t sources of information.

        • Freedom says

          And you make the nearest stone look like Albert Einstein. Respond with a reasoned, cogent, argument, or keep that trap shut.

          • Stuart says

            Insulting timb116 doesn’t address the validity of Jones and Rockwell. Mr. Freedom, you need to follow your own advice and “respond with a reasoned, cogent argument”.

            • Freedom says

              The validity of Jones and Rockwell was not validly attacked. How can you repeatedly miss the most obvious matters?

              You really aren’t very good at discussion. Increasingly, Liberalism merely appears to be an ideology that welcomes the unintelligent.

              • Stuart says

                The point is that when you attack the person and not the issue, it is “to the person”, or ad hominem. And you don’t win simply by insulting the person who is arguing with you. You lose.

                • Freedom says

                  Stuart, once again, you have no idea what you’re doing. You commit the most egregious fallacies of all by not understanding anything that is occurring within the discussion. You are so bad at this that you shouldn’t even be let in the door.

                  Please leave.

        • says

          I’ll let this speak for itself: “Llewellyn Harrison “Lew” Rockwell, Jr. is an American libertarian author and editor, self-professed anarcho-capitalist, a promoter of the Austrian School of economics, and founder and chairman of the Ludwig von Mises Institute.”

          So, first, Sustrian economics don’t work and Von Mises was wrong about his macroeconomic assumptions (see US recovery, mild Keynsian, versus European failure to recover, Austrian school). Secondly, and more tellingly, Rockwell is the kind of douchebag who believes in no government and that is not anti-thetical to any sane person’s understanding of the universe, it is demonstrably a failure. Thirdly, Rockwell hoses other douchebags, like Tom Woods, who argue, speciously, that Nullification and Secession are legal, that Abraham Lincoln was a tyrant, that the South was right and correct to secede, and that the Union was wrong to fight the Civil War.

          Rockwell’s understanding of American history is about as correct as your understanding of the Bundy Ranch situation.

          • Freedom says

            Don’t cry because you back indefensible and ridiculous political theories.

            Don’t cry because Lew Rockwell and I make a fool of you, at every turn.

            Don’t cry because you strain to understand the books, publications and letters of the Mises Institute.

            Crying is defeat. Fight that back. Stay in the game; keep reading Rockwell, even though it’s challenging, and you might make some progress in your studies. Don’t give up and consume the initially satisfying, but ultimately empty liberalism that proposes to give you something for nothing.

  7. Freedom says

    “After a legal decision has been made and the subject of that decision has been afforded due process in the course of that decision being made, the government has a strong interest in using that level of force necessary to coerce compliance with the law.”

    “When injustice becomes law, resistance becomes duty.” Thomas Jefferson

      • Freedom says

        Nothing is more misquoted than Adams’ “nation of laws” line. These statists, through decades of accretion, have created the most pernicious “nation of men,” and dare call it “law.”

  8. curious says

    Where is the “injustice”? Bundy doesn’t own the land and he hasn’t been paying rent on the land for his cattle to graze on it. So throw his cattle off of the land. This really doesn’t seem that complex. At its core, how is this different from any other run of the mill eviction case?

      • curious says

        Fine, then I want Bundy to get his cows off my land. He can move them over to some other federal land, say the White House lawn or Arlington National Cemetery.

        • Freedom says

          No, he’ll keep them right there. If you don’t like it, divest the government of the land, and put property rights where they can be exercised.

            • says

              What’s the mechanism by which the States – particularly out west – gain title to that land? The U.S. took title from Mexico by right of conquest. If the feds never had the right to it, then that’s Mexican territory.

              • Carlito Brigante says

                Dog, I used to live in New Mexico, land seized by force of arms in the Mexican War. It was also claimed, but not occupied,by the the Confederacy. Westerners have been whining for years about federal control over federal land located in their states. The Mexicans and natives have a greater claim to the land, but wars of conquest have perverse effects.

                I also recall something called the “county movement” in the 1990s, http://mavdisk.mnsu.edu/parsnk/2008-9/POL%20680-Fall/documents/POL%20680%20readings/federalism-wk%202/chaloupka%20county%20federalism.pdf

                There were also interpretations of the Treaty of Guadalupe Hidalgo that required recognition of land rights of Mexican citizens of the captured territory. But you can guess what the 19th century Territorial governments did to these prexisting rights.

                These new movements are nothing new. There was once the Sagebrush rebellion. And probably predecessors to that.

                As a side note, I remember Israeli leader Netanyahu, in defending the occupation of the West Bank and Gaza asking rhetorically if the US would like to go back to its borders before the Mexican war. My question to Netanyahu is if he would like to go back to the 1846 Ottoman Empire Borders.

                • Carlito Brigante says

                  Actually, that article I cited was very prescient and insightful. This is especially so with the NRA and fringe groups energized by DC v. Heller and progeny.

                • says

                  Carlito, they weren’t emboldened by Heller. They were emboldened by the right wing’s terror at the Obama presidency and the money to be made representing gun manufactuers

            • says

              Uh, in case you missed Con Law, the Feds are. it’s sort of in the Constitution in the Supremacy Clause, in the necessary and proper clause, etc. States have no more right to Federal land than you do, especially clear in the West where the State was created by the Federal government and the people of the state.

          • says

            Has he offered to buy the land? Or, does he plan on trespassing on someone else’s land? Dude has way to many cattle to graze on the 160 acres of desert he owns. His entire business model is stealing from you.

        • Carlito Brigante says

          What sort of sad anarchist or thief would support such lawlessness? The domestic terrorists need a meaningful lesson in compliance with federal law. And the ignorant idealogues that encourage him should pony up and pay his rent or put their chests on the line for him. Nameless cowards on the Internet must stand behind their “principles” or admit they are only entertaining themselves with inflammatory rhetoric that they cannot backup.

Leave a Reply