The Malheur National Wildlife Refuge, a 187,757-acre haven for greater sandhill cranes and other native birds in eastern Oregon, is usually a pretty peaceful place. But its calm was shattered on Saturday, January 2 when Ammon Bundy and a group of armed men broke into and occupied a number of federal buildings on the refuge, vowing to fight should the government try to arrest them. Their insurrectionary goal appears to be, simply put, to destroy the national system of public lands – our forests, parks and refuges – that was developed in the late 19th century to conserve these special landscapes and the critical natural resources they contain for all Americans. “The best possible outcome,” trumpeted Bundy, son of Cliven Bundy, who began an armed standoff with law enforcement in Nevada in April 2014 over his continued failure to pay US$1 million in fees for grazing on public lands, is that “ranchers that have been kicked out of the area…will come back and reclaim their land, and the wildlife refuge will be shut down forever and the federal government will relinquish such control.” Theirs was not a rebellion, Bundy declared. “What we’re doing is in accordance with the Constitution, which is the supreme law of the land.” He could not be more wrong. To understand why requires a basic understanding of the region’s complex and troubling history and the legal authority under which the federal land management agencies operate

Miller, Char

Keck Graduate Institute

Claremont Colleges
Scholarship @ Claremont
Pomona Faculty Publications and Research Pomona Faculty Scholarship
1-6-2016
Malheur Occupation in Oregon: Whose Land is it
Really?
Char Miller
Pomona College
This Article is brought to you for free and open access by the Pomona Faculty Scholarship at Scholarship @ Claremont. It has been accepted for
inclusion in Pomona Faculty Publications and Research by an authorized administrator of Scholarship @ Claremont. For more information, please
contact scholarship@cuc.claremont.edu.
Recommended Citation
Miller, Char. "Malheur Occupation in Oregon: Whose Land Is It Really?" The Conversation. The Conversation US, Inc., 6 Jan. 2016.
Web.
Char Miller
Professor of Environmental Analysis, Pomona College
The Malheur National Wildlife Refuge, a 187,757-acre haven for greater sandhill cranes and
other native birds in eastern Oregon, is usually a pretty peaceful place. But its calm was
shattered on Saturday, January 2 when Ammon Bundy and a group of armed men broke into
and occupied a number of federal buildings on the refuge, vowing to fight should the
government try to arrest them.
Their insurrectionary goal appears to be, simply put, to destroy the national system of public
lands – our forests, parks and refuges – that was developed in the late 19th century to
conserve these special landscapes and the critical natural resources they contain for all
Americans.
“The best possible outcome,” trumpeted Bundy, son of Cliven Bundy, who began an armed
standoﬀ with law enforcement in Nevada in April 2014 over his continued failure to pay US$1
million in fees for grazing on public lands, is that “ranchers that have been kicked out of the
area…will come back and reclaim their land, and the wildlife refuge will be shut down forever
and the federal government will relinquish such control.”
Theirs was not a rebellion, Bundy declared. “What we’re doing is in accordance with the
Constitution, which is the supreme law of the land.”
He could not be more wrong. To understand why requires a basic understanding of the
region’s complex and troubling history and the legal authority under which the federal land
Malheur occupation in Oregon: whose land
is it really?
January 6, 2016 6.07am EST
The Malheur National Wildlife Refuge is part of a complicated history of land in the western US. US
Fish and Wildlife Service, CC BY-SA
Malheur occupation in Oregon: whose land is it really? https://theconversation.com/malheur-occupation-in-oregon-who...
1 of 4 1/7/16, 9:57 AM
management agencies operate.
Making of ‘public’ lands
The first people to live oﬀ this land, after all, were the Paiute. For millennia, and thus long
before settler-colonists arrived in the region, the Paiute hunted, fished and gathered in this
fertile, albeit arid, terrain. Their remarkable ecological adaptability, observes historian Nancy
Langston in Where the Land and Water Meet (2003), the definitive study of the Malheur
Basin, helped the colonists rationalize their post-Civil War eviction:
Whites looked at the Paiutes and believed they saw a people who had no fixed
habitation, no material culture, no cultivation, no livestock, no homes, and no real
claim to humanness.
Battered into submission, crowded into a reservation and prohibited from acting on their
treaty rights to hunt and fish oﬀ-reservation, in 1878, the Paiute fought back. Their brief
uprising was crushed and the consequences were grim: their local reservation was shut
down, and its lands returned to the public domain. Under armed guard, the Paiute were
marched through the snow 350 miles to the Yakama Reservation in southeastern Washington
state. Having inhabited the Malheur for 13 centuries, they knew full well the meaning of the
French word applied to their homeland – misfortune, adversity.
The land suﬀered, too. As Langston points out, it is no coincidence that dispossessing the
Paiute allowed large livestock operations to take over, resulting in the rapid deterioration of
grazing lands in the upper reaches of the Silvies and Blitzen rivers that flow into Malheur
Lake.
Further diminishing the lake’s capacity to sustain migratory and local bird populations were
the irrigation and drainage projects that the Bureau of Reclamation, founded in 1902 to
manage water to boost economic development in the arid West, built upstream.
Before being taken by settlers and the US government,
Northern Paiutes inhabited the land in the part of Oregon
now being occupied. USFWS/Ken Morris
Malheur occupation in Oregon: whose land is it really? https://theconversation.com/malheur-occupation-in-oregon-who...
2 of 4 1/7/16, 9:57 AM
Add to this environmental degradation the reckless hunt for bird plumage: late-19th-century
fashionistas coveted the white heron’s graceful feathers to adorn their hats. With gold
rush-like avarice, local hunters blazed away, and within a few years the Malheur heron
population was decimated.
It was their extirpation – not the brutal mistreatment of the Paiutes – that caught the attention
of the Oregon Audubon Society. The society’s activists pleaded with former rancher and
conservationist-in-chief, President Theodore Roosevelt, to protect those lands still in federal
ownership. On August 18 1908, he complied, signing an executive order establishing the
81,786-acre Malheur Lake Refuge, which also encompassed nearby Haney and Mud Lakes,
“as a preserve and breeding ground for native birds.”
Since then, the refuge has expanded by 100,000 acres. In 1935, the Swift Meatpacking
Corporation sold 65,000 acres to the federal government, funding for which came from Duck
Stamp sales and New Deal monies; over the years, willing sellers added the remaining acres
to the refuge’s expanse. Ammon Bundy’s protestations to the contrary, no ranchers were ever
evicted from the refuge.
Roots of federal authority
Bundy’s militant bluster about restoring the Constitution by tossing the federal government
oﬀ the Malheur and other public lands because this land belongs to settler descendants is
just as disingenuous.
Indeed, in 1911 in a pair of landmark decisions – Light v US and US v Grimaud – the
Supreme Court asserted that the public lands were, in fact, public; that federal ownership of
them was indisputable; and that Congress through a series of legislative acts had granted the
Executive Branch, and by extension the federal land management agencies, administrative
authority to manage these acres in accordance with the relevant rules and regulations.
Both cases emerged out of the first Sagebrush Rebellion of the early 20th century. Western
livestock, mineral and timber interests had exploded in anger at the redesignation of portions
of the public domain into the national forests and the regulations that the newly created US
A sign put up at the Malheur Wildlife Refuge accusing the
Bureau of Land Management of abusing power. Jim
Urquhart/Reuters
Malheur occupation in Oregon: whose land is it really? https://theconversation.com/malheur-occupation-in-oregon-who...
3 of 4 1/7/16, 9:57 AM
Forest Service enacted on grazing, mining and logging. What changed was that ranchers,
miners and loggers were required to pay a small fee to access the relevant resources that
once they simply harvested for free.
As these special interests and their political minions lashed out, harassing rangers and
threatening to rebel against the nation-state, they sought test cases to undercut the federal
agency’s regulatory authority; the Forest Service also had its day in court in hopes of
establishing precedent for its managerial actions. They found them when Colorado cattleman
Fred Light and California shepherd Pierre Grimaud were caught illegally grazing their herds
on national forest land. The Colorado legislature even paid all Light’s legal expenses in hopes
of proving its point that states, not the federal government, had sovereignty over the public
lands within their borders. In May 1911, a highly conservative Supreme Court disagreed,
ruling unanimously in the Forest Service’s favor.
This precedent should have put an end to such challenges, but subsequent generations of
would-be Sagebrushers have adopted the same hostile anti-federal rhetoric and oft-violent
tactics.
There were outbreaks in the 1920s, ’40’s and ’50’s. During the Reagan and Bush
administrations, fueled by vitriolic talk-show disdain for Washington, Nevada county
commissioners crashed bulldozers through Forest Service fences to claim “ownership.”
Elsewhere, ranger oﬃces were firebombed and agency equipment vandalized.
More recently, in 2010 the Utah legislature asserted that it would use eminent domain to take
over national monuments, grasslands and forests, believing, as did the Colorado legislature a
century ago, that its sovereignty superseded the federal government’s. Four years later,
Nevada rancher Cliven Bundy declared federal sovereignty null and void, refused to pay his
grassland-leasing fees, and took up arms to face down the feds. His son’s occupation of the
Malheur National Wildlife Refuge is but the latest in a long line of such confrontations.
Yet none of these persistent attacks has succeeded in dismantling the federal land
management agencies or the Supreme Court precedents that sanction their actions, a critical
lesson from this contested past that Ammon Bundy and his coconspirators willfully ignore.
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Malheur Occupation in Oregon: Whose Land is it Really?

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Claremont CollegesScholarship @ ClaremontPomona Faculty Publications and Research Pomona Faculty Scholarship1-6-2016Malheur Occupation in Oregon: Whose Land is itReally?Char MillerPomona CollegeThis Article is brought to you for free and open access by the Pomona Faculty Scholarship at Scholarship @ Claremont. It has been accepted forinclusion in Pomona Faculty Publications and Research by an authorized administrator of Scholarship @ Claremont. For more information, pleasecontact scholarship@cuc.claremont.edu.Recommended CitationMiller, Char. "Malheur Occupation in Oregon: Whose Land Is It Really?" The Conversation. The Conversation US, Inc., 6 Jan. 2016.Web.Char MillerProfessor of Environmental Analysis, Pomona CollegeThe Malheur National Wildlife Refuge, a 187,757-acre haven for greater sandhill cranes andother native birds in eastern Oregon, is usually a pretty peaceful place. But its calm wasshattered on Saturday, January 2 when Ammon Bundy and a group of armed men broke intoand occupied a number of federal buildings on the refuge, vowing to fight should thegovernment try to arrest them.Their insurrectionary goal appears to be, simply put, to destroy the national system of publiclands – our forests, parks and refuges – that was developed in the late 19th century toconserve these special landscapes and the critical natural resources they contain for allAmericans.“The best possible outcome,” trumpeted Bundy, son of Cliven Bundy, who began an armedstandoﬀ with law enforcement in Nevada in April 2014 over his continued failure to pay US$1million in fees for grazing on public lands, is that “ranchers that have been kicked out of thearea…will come back and reclaim their land, and the wildlife refuge will be shut down foreverand the federal government will relinquish such control.”Theirs was not a rebellion, Bundy declared. “What we’re doing is in accordance with theConstitution, which is the supreme law of the land.”He could not be more wrong. To understand why requires a basic understanding of theregion’s complex and troubling history and the legal authority under which the federal landMalheur occupation in Oregon: whose landis it really?January 6, 2016 6.07am ESTThe Malheur National Wildlife Refuge is part of a complicated history of land in the western US. USFish and Wildlife Service, CC BY-SAMalheur occupation in Oregon: whose land is it really? https://theconversation.com/malheur-occupation-in-oregon-who...1 of 4 1/7/16, 9:57 AMmanagement agencies operate.Making of ‘public’ landsThe first people to live oﬀ this land, after all, were the Paiute. For millennia, and thus longbefore settler-colonists arrived in the region, the Paiute hunted, fished and gathered in thisfertile, albeit arid, terrain. Their remarkable ecological adaptability, observes historian NancyLangston in Where the Land and Water Meet (2003), the definitive study of the MalheurBasin, helped the colonists rationalize their post-Civil War eviction:Whites looked at the Paiutes and believed they saw a people who had no fixedhabitation, no material culture, no cultivation, no livestock, no homes, and no realclaim to humanness.Battered into submission, crowded into a reservation and prohibited from acting on theirtreaty rights to hunt and fish oﬀ-reservation, in 1878, the Paiute fought back. Their briefuprising was crushed and the consequences were grim: their local reservation was shutdown, and its lands returned to the public domain. Under armed guard, the Paiute weremarched through the snow 350 miles to the Yakama Reservation in southeastern Washingtonstate. Having inhabited the Malheur for 13 centuries, they knew full well the meaning of theFrench word applied to their homeland – misfortune, adversity.The land suﬀered, too. As Langston points out, it is no coincidence that dispossessing thePaiute allowed large livestock operations to take over, resulting in the rapid deterioration ofgrazing lands in the upper reaches of the Silvies and Blitzen rivers that flow into MalheurLake.Further diminishing the lake’s capacity to sustain migratory and local bird populations werethe irrigation and drainage projects that the Bureau of Reclamation, founded in 1902 tomanage water to boost economic development in the arid West, built upstream.Before being taken by settlers and the US government,Northern Paiutes inhabited the land in the part of Oregonnow being occupied. USFWS/Ken MorrisMalheur occupation in Oregon: whose land is it really? https://theconversation.com/malheur-occupation-in-oregon-who...2 of 4 1/7/16, 9:57 AMAdd to this environmental degradation the reckless hunt for bird plumage: late-19th-centuryfashionistas coveted the white heron’s graceful feathers to adorn their hats. With goldrush-like avarice, local hunters blazed away, and within a few years the Malheur heronpopulation was decimated.It was their extirpation – not the brutal mistreatment of the Paiutes – that caught the attentionof the Oregon Audubon Society. The society’s activists pleaded with former rancher andconservationist-in-chief, President Theodore Roosevelt, to protect those lands still in federalownership. On August 18 1908, he complied, signing an executive order establishing the81,786-acre Malheur Lake Refuge, which also encompassed nearby Haney and Mud Lakes,“as a preserve and breeding ground for native birds.”Since then, the refuge has expanded by 100,000 acres. In 1935, the Swift MeatpackingCorporation sold 65,000 acres to the federal government, funding for which came from DuckStamp sales and New Deal monies; over the years, willing sellers added the remaining acresto the refuge’s expanse. Ammon Bundy’s protestations to the contrary, no ranchers were everevicted from the refuge.Roots of federal authorityBundy’s militant bluster about restoring the Constitution by tossing the federal governmentoﬀ the Malheur and other public lands because this land belongs to settler descendants isjust as disingenuous.Indeed, in 1911 in a pair of landmark decisions – Light v US and US v Grimaud – theSupreme Court asserted that the public lands were, in fact, public; that federal ownership ofthem was indisputable; and that Congress through a series of legislative acts had granted theExecutive Branch, and by extension the federal land management agencies, administrativeauthority to manage these acres in accordance with the relevant rules and regulations.Both cases emerged out of the first Sagebrush Rebellion of the early 20th century. Westernlivestock, mineral and timber interests had exploded in anger at the redesignation of portionsof the public domain into the national forests and the regulations that the newly created USA sign put up at the Malheur Wildlife Refuge accusing theBureau of Land Management of abusing power. JimUrquhart/ReutersMalheur occupation in Oregon: whose land is it really? https://theconversation.com/malheur-occupation-in-oregon-who...3 of 4 1/7/16, 9:57 AMForest Service enacted on grazing, mining and logging. What changed was that ranchers,miners and loggers were required to pay a small fee to access the relevant resources thatonce they simply harvested for free.As these special interests and their political minions lashed out, harassing rangers andthreatening to rebel against the nation-state, they sought test cases to undercut the federalagency’s regulatory authority; the Forest Service also had its day in court in hopes ofestablishing precedent for its managerial actions. They found them when Colorado cattlemanFred Light and California shepherd Pierre Grimaud were caught illegally grazing their herdson national forest land. The Colorado legislature even paid all Light’s legal expenses in hopesof proving its point that states, not the federal government, had sovereignty over the publiclands within their borders. In May 1911, a highly conservative Supreme Court disagreed,ruling unanimously in the Forest Service’s favor.This precedent should have put an end to such challenges, but subsequent generations ofwould-be Sagebrushers have adopted the same hostile anti-federal rhetoric and oft-violenttactics.There were outbreaks in the 1920s, ’40’s and ’50’s. During the Reagan and Bushadministrations, fueled by vitriolic talk-show disdain for Washington, Nevada countycommissioners crashed bulldozers through Forest Service fences to claim “ownership.”Elsewhere, ranger oﬃces were firebombed and agency equipment vandalized.More recently, in 2010 the Utah legislature asserted that it would use eminent domain to takeover national monuments, grasslands and forests, believing, as did the Colorado legislature acentury ago, that its sovereignty superseded the federal government’s. Four years later,Nevada rancher Cliven Bundy declared federal sovereignty null and void, refused to pay hisgrassland-leasing fees, and took up arms to face down the feds. His son’s occupation of theMalheur National Wildlife Refuge is but the latest in a long line of such confrontations.Yet none of these persistent attacks has succeeded in dismantling the federal landmanagement agencies or the Supreme Court precedents that sanction their actions, a criticallesson from this contested past that Ammon Bundy and his coconspirators willfully ignore.Tweet88Share287HistoryNational parksOregonMalheur occupation in Oregon: whose land is it really? https://theconversation.com/malheur-occupation-in-oregon-who...4 of 4 1/7/16, 9:57 AM

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Malheur Occupation in Oregon: Whose Land is it Really?

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