Ammon Bundy, one of 27 people indicted for the armed takeover of Oregon’s Malhuer National Wildlife Refuge in January, plans to use legal precedent older than the state in an attempt to have charges against him dropped.
Legal experts are skeptical of the plan by his lawyers to claim that the federal government does not own the land associated with the refuge and therefore cannot prosecute any of the armed suspects who occupied it for 40 days.
Invoking Article 1, Section 8, Clause 17 of the US Constitution, known as the Enclave Clause, and using “foundation documents from the Federal Convention of 1787,” which ultimately led to the US Constitution, Bundy is challenging the federal government’s “authority,” according to documents filed on Friday, even though the Paiute tribe occupied the land long before Europeans settled and asserted their “manifest destiny.”
“The land that is now the Malheur National Wildlife Refuge was not always 'federal land’,” Bundy’s attorney Lissa Casey wrote. “The federal government relinquished that land when it was previously deeded and homesteaded, thus relinquishing jurisdiction. It was mainly through property acquisition from the original deed holders that created this vast area now considered the wildlife refuge.”
On this basis, the legal team called for the charges to be dropped, but US District Judge Anna Brown was not so keen, telling the court Monday that the “anticipated motion relies on the type of historical and legal facts that do not ordinarily necessitate an evidentiary hearing or the examination of live witnesses.”
Bundy’s legal team have until Wednesday to present the necessary documents.
“These documents will be critical to the Court’s consideration about jurisdiction in this matter,” the filing reads. “These documents were reportedly not discovered until much of the case law surrounding the Enclave and Property Clause was created.”
Some legal experts say they’ll be keeping a close eye on how this argument will be presented and that it will yet again be turned down by the courts.
“We look forward to Ammon Bundy’s attempt to re-litigate 200 years of jurisprudence regarding the property clause,” said Jennifer Rokala, executive director of the Center for Western Priorities.
More importantly though, Bundy’s lawyers will also have to subvert a 1935 Supreme Court ruling which dealt with this very issue.
The ruling detailed how the federal government had an undeniable claim to the Malheur National Wildlife Refuge, with ownership of the land dating back to the 1840s, when Oregon was still a territory.
"Before Oregon was admitted to statehood, the United States is shown to have acquired title which it has never in terms conveyed away," Justice Harlan Stone wrote at the time.
"The unmistakable legal reality is that a series of solid, indisputable US Supreme Court cases establishes that the federal government is constitutionally empowered to own land, control that land through federal statutes and regulations as it sees fit, and dispose of that land if it chooses to ‘without limitation’,” wrote Willamette University Law Professor Susan Smith, as cited by Patch.com.
This argument has also been presented in court several times since, including by one of Bundy’s fellow defendants, Kenneth Medenbach, but it has never found any legs.
Earlier this month in a court in Eugene, Oregon, Medenbach made similar arguments around the illegitimacy of the federal government’s claims to land in Josephine County in May 2015.
As is expected with Bundy’s arguments, the court found no merit in the claims, reported Oregon Live.
Republican Ken Ivory, a state legislator in Utah, has also previously argued how under the terms of Utah’s admission into the Union, the federal government breached its requirement to return publically owned lands to the state.
Utah's state legislature passed the Utah Transfer of Public Lands Act in 2012 called on the federal government to return the land to the state by the end of 2014, but this hasn’t happened to date.
Ivory, who was previously president of the American Lands Council, is also involved in Federalism in Action group which, according to its website, runs “the ‘Free the Lands’ project and coalition” which aims to “shepherd the transfer to the states from the federal government.”
There have been similar calls made for federal lands in numerous western states, including Montana, New Mexico, Arizona and Wyoming, according to National Review.
It has been reported previously that the Koch brothers have a keen interest in states being able to "reclaim" federal lands, particularly through their funding of the American Legislative Exchange Council (ALEC), as have the aforementioned American Lands Council and Federalism in Action.
As reported by AP in 2012, “lawmakers in Utah and Arizona have said the legislation is endorsed by the American Legislative Exchange Council, a group that advocates conservative ideals, and they expect it to eventually be introduced in other Western states.”
So-called “model policies” devised by ALEC have, according to ALECexposed.org, a project of the liberal watchdog Center for Media and Democracy, being used to push “reclaim” laws through such states.
In particular, the “Sagebrush Rebellion Act” has apparently been in existence since 1995 and is a piece of model legislation from ALEC “designed to establish a mechanism for the transfer of ownership of unappropriated lands from the federal government to the states.”