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Harold Pease, Ph. D

The most important question with respect to the takeover of the Malheur National Wildlife Refuge by Oregon ranchers remains unanswered by the press covering the story. Why does the federal government own 52.6 percent of Oregon leaving them owning but 47.4 of themselves? It does not own New York or Virginia or Massachusetts. Those occupying the Refuge say that the state of Oregon rightfully owns the land and federal occupation is unconstitutional. The Bureau of Land Management clearly considers the property the federal governments. Who is right?

The problem isn’t Oregon’s alone the percentage of land owned by the government exceeds fifty percent in Alaska (98.5), Nevada (87.7), Idaho (63.8), and Utah (63.6). Indeed, the federal government claims to own a third of all the landmass in the United States (Inventory Report on Real Property Owned by the United States Throughout the World, published by the General Services Administration, page 10). Government owns almost half of California (47.5 %). Basically the federal government did not give western states all their land when they qualified for statehood. States were so excited to get coveted statehood that they went along with the conditions despite the confiscation of, for most in the West, at least a third of their land.

States wanting their confiscated land returned, so as to be on equal footing with 19 sister states who actually own their land, call their long-term bid to do so the Sage Brush Rebellion. Equality between states was established by giving them equal representation in the U.S. Senate, thus the assumption of the Founders was that property would follow. Without it they are not on equal footing and instead may be more servile to the federal government than states that own themselves. This could negatively affect our system of government known as federalism as states collectively serve as a check on federal overreach. This check is impaired when the federal government owns part or most of their land.

But this is not the most serious violation of the Constitution. The Founders understood that the size of land holding was proportionally related to the perceived size of the federal government and they intentionally wanted that perception small. The Federal government was permitted to have but 10 square miles for a federal capital. The only other land that they could acquire had to be for military purposes as specified in the common defense clause of the Constitution, Article I, Section 8, Clause 17 which reads: “and to exercise like Authority over all places purchased by the Consent of the Legislature of the State in which the same shall be for the Erection of Forts, Magazines, Arsenals, dock Yards, and other needful Buildings.”

Any new acquisition, outside the capital, had (1) to be purchased, (2) have the consent of the State Legislature where the land exists, (3) and be for military purposes. None of these constitutional requirements were met with respect to any of the states cited above although some military bases do exist in most of them. Nor have there been any additional amendments to the Constitution authorizing additional federal ownership of land as required for any additional federal power. Constitutionally there exists no federal land or Bureau of Land Management or even public land.

Again, in the case of the Oregon ranchers occupying Malheur National Wildlife Refuge near Burns, Oregon, the land in dispute was not purchased by the federal government, did not receive the consent of the Oregon State Legislature for sale to the feds and is not for military purposes. The fact that the federal government acquired it fraudulently in the first place, or that both political parties have ignored this part of the Constitution for over a hundred years, does not make federal confiscation now constitutional. Constitutionally the Oregon ranchers have more right to be there than does the Bureau of Land Management. Still, the rancher stand is not practical given our long-term departure from the document and to get back to the Constitution some may do jail time, as have others like Martin Luther King, Jr. Freedom has never been cheap.

Having someone willing to stand, although in no way do I support forcibly taking over the Refuge, Sage Brush Rebellion states now have the opportunity to seize this moment to remind the federal government that they too want their land back. The event should, however, start a healthy national conversation and resolution should process through the state legislatures. If states now stand together resolution in their favor is more probable than ever.

One suggestion is for Oregon Governor Kate Brown to declare the contested land under state jurisdiction until the Oregon State Legislature has time to weigh in. Taking back this infinitesimal amount of the whole that is claimed by the federal government will set the stage for more acquisitions by other states later. The governor would become an instant hero in the western states. This solution would diffuse the standoff between citizen and federal government moving it to the state instead where it belongs. Why do citizens have to make the case, which should be made by a state? The governor would give strength to two objectives—returning fraudulently acquired land to the states and getting back to the Constitution.