Updated:
Original:

The Oregon Standoff and the Cowboy Lawyers

Video from the armed occupation of the Malheur National Wildlife Refuge often reveals the occupiers waving paperback copies of the U.S. Constitution. This claim of authority for their actions in the fundamental law of the U.S. leads to media descriptions of “cowboy legal scholars.”

Identical claims are made for the Malheur occupiers and the “militiamen” who rode to the rescue of the deadbeat rancher Cliven Bundy when some of Bundy’s cattle were seized for his failure to pay about 20 years of grazing fees owed to the Bureau of Land Management.

Bundy’s legal scholarship told him that if he owed any grazing fees, he would owe the state of Nevada and not the federal government. The armed men who seized Malheur---led by Ammon and Ryan Bundy, sons of Cliven---called themselves Citizens for Constitutional Freedom.

Their legal theorizing tells them that the federal government can only own land within states under very limited circumstances and a wildlife refuge is not one of those circumstances. The cowboy legal scholars were not too sure what to make of it when informed that the Malheur National Wildlife Refuge used to be known as the Malheur Indian Reservation and it was land held in trust by the federal government for the Northern Paiutes.

The Paiutes sided with the Bannocks in a war against the U.S. and lost. In retaliation, most of them were removed to a reservation in Washington Territory. The Northern Paiutes who did not remove to Washington live on a tiny reservation near Burns, Oregon, and they have assumed responsibility for protection of Paiute sacred sites and historical artifacts, a task that has been carried out to the satisfaction of both the Burns Paiutes and the U.S. Fish and Wildlife Service, managers of Malheur.

Legal scholars could have an energetic quibble over whether the trust in favor of the Northern Paiutes was ever lawfully destroyed, but if the cowboy legal scholars want to make it a title dispute between state and federal governments, the Paiute trust does not matter.

As my colleague Steven Newcomb has explained so many times in these pages, the passage of land titles in the Americas from the indigenous owners to the colonial governments was governed by the Doctrine of Christian Discovery. According to that doctrine, the first Christian nation to “discover” lands held by pagans gains the exclusive right to obtain title to the “discovered” lands by conquest or by purchase.

It follows, for example, that Thomas Jefferson—whether the Louisiana Purchase was constitutional or not---acquired not the land spanning North America from the Mississippi River to the Columbia River but rather the right to acquire that land from the occupants to the exclusion of all other Christian nations.

The U.S. Constitution waved in the air by the Oregon militiamen fixed all relations with Indian nations as a federal responsibility, to the exclusion of the states. Cowboy legal scholars following U.S. land titles need to follow this: only the U.S. can acquire the lands and only the federal government can act for the U.S.

The exclusive federal right to acquire Indian lands was tested in the second of the three opinions in the Marshall Trilogy. Those opinions are to this day the foundation of federal Indian law.

The case was Johnson v. M’Intosh, and the issue was which land titles were superior as between titles derived from private parties who purchased from the Indians or titles derived from a federal government purchase from the Indians.

Some of the oldest and scariest to colonists land claims involve the same issue except that the competing sale was to state or territorial government rather than the federal government.

Who “bought” the land from the Indians does not matter and how much they paid or to whom does not matter. If it was anybody but the federal government, U.S. law is not going to recognize the transfer.

Don’t these principles apply only to former Indian land in Nevada (Cliven Bundy’s grazing fees) or Oregon (Malheur Wildlife Refuge)? That would be correct, but it’s all former Indian land.

The states cannot appear in the chain of land title unless they appear somewhere in the chain below the federal government. Therefore, if the cowboy legal scholars were to defeat the federal land titles that constitute so many burrs under their saddles, the result would not be state land. The result would be tribal land.

The cowboy legal scholars are about as competent as legal theorists as most law professors would be as cowboys.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.