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Jan 11, 2016 — by: Dennis Linthicum
Categories: Culture, Economy, Regulations, Natural Resources, Politics

Making the Case

We have all heard the phrase “Don’t make a Federal case out of it!” Have you ever thought about what this means?

It means, you can't win against the feds – so don't even think about it. It means you can't fight the raw power, money and monopoly interests that the federal government has ruthlessly acquired. It means that none of us can ever raise enough money to battle the accumulated wealth (originating from our own pockets) that will be ushered against our cause.

Yet, the Hammonds and the Bundys are making headlines in Harney County, Oregon because they are doing just that. These families are the focal point of the media onslaught.

The problem in Harney County is not a new problem. It is a systemic problem that the Founders recognized and feared. At the heart of the issue is the probability that the central government would seek to, “annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce… an iron banded despotism.” **

The blame lies with successive Congressional administrations who have failed to secure the unalienable rights and individual liberties of American citizens. Our so-called representatives have abandoned their Constitutional obligations to a limited federal government and the rights and liberties of the people within their state governments. Instead, they have funded every federal overreach allowing the slow annihilation of state sovereignty and the despotic absorption of state lands.

Why is the West “Federally” Managed?

Federally controlled land is predominately concentrated in the West. Nationally, the United States government has direct control over almost 650 million acres of land — nearly 30% of its total territory.  In Oregon, where I and the Hammond family live, the federal government controls 54% of all of the land. In Nevada, where the Bundy family lives, the federal government controls 84.5% of the land in the state.

Why2

Now, imagine if  you owned a business and some bureaucrat decided it was in the public’s best interest for them to manage 54%, or 84% of your resources – this is what is happening throughout the West. The feds under the false color of law have essentially done this to the Western states. The feds also receive the benefit of those resources and they control the disposition of all of those assets.

This is why thousands and thousands of Americans are standing with and applauding these families who are fighting back against the abuses of these federal agencies.  

Teddy and the Midnight Reserves (warning: not a bedtime story)

In Oregon, this tragedy started a hundred years ago with grossly unconstitutional actions by a Republican “progressive” living in the White House – Theodore Roosevelt.

Between 1902 and 1906, President Roosevelt, with his fountain pen and telegraph poles, went tearing through the maps of Oregon. He grabbed enormous swaths of Oregon’s pristine landscape and forested wilderness for federal control.

Oregon’s U.S. Senator Charles W. Fulton was outraged by these unprecedented actions. Fulton introduced legislation to eliminate the president's authority to establish national forest reserves via executive orders in 1907.

The night before signing this law, Roosevelt issued another Executive Order snatching an additional 16 million acres from Oregon’s control. Honest journalists of the day deridingly labeled these new forests as the "Midnight Reserves.”

Then, in 1908, after the legislation prohibiting these blatant land grabs, Roosevelt engineered a new scheme to pluck more land from the states.  

Roosevelt designated land surrounding Malhuer, Mud and Harney Lakes in Eastern Oregon as an “Indian reservation.” Roosevelt’s swindle avoided using the phrase “forest reserve,” which was now illegal after Fulton’s legislation. Instead, these new takings were identified, “as a preserve and breeding ground for native birds.”

This was nothing more than an unconstitutional land grab.  Later this “Indian reservation,” which did not include the 13,700 acre Burns Paiute Reservation, became the Malhuer National Wildlife Refuge.  

This refuge is the immediate source of the BLM conflict with the Hammond family in Oregon.

The Constitution

Federal fiddling in these areas is flatly unconstitutional. The only relevant authority for federal land ownership comes from the US Constitution. It is known as the Enclave Clause:

“To exercise exclusive Legislation… over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased… for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”  

Article I, Section 8, Clause 17

While Washington, D.C. remains within the boundary limit of “ten Miles square,” the federal government has blown through all reasonable expectations for forts, ports, arsenals and other military installations. Those installations now exceed 44,500 square miles of land within the states.

The federal government’s rough-shod management of an additional 1 million square miles (650 million acres) of state land is wholly unconstitutional. The Department of the Interior administers 96% of these ill-gotten state lands with one non-elected office holder (Secretary of the Interior), who serves at the pleasure of the President, directing this  unbridled Leviathan.

These are the reasons why large segments of the Western states support the Hammonds,  Bundys and the myriads of other families that come under the gun of these federal marauders.

Last week, Oregon’s U.S. Rep. Greg Walden issued a warm-hearted plea which contained many great talking points. 123485_600Unfortunately for Americans, it is another toothless gesture. During Walden’s 18 years as a House member he has done little to rein-in this voracious federal machine. Instead, Walden, along with his RINO cohorts and Democrat allies, has needlessly ladled a steady stream of trillion dollar, taxpayer funded budgets into the mouths of D.C.'s lobbyists and bureaucrats.

Congress has long ignored the beauty and strength of 1) limited government, and 2) fiscal accountability. They have promoted government growth at unprecedented levels while their constituents have been successfully bribed by promises for economic riches.

The power of the purse is key

These federal raids on our state sovereignty can only be stopped by using the Constitution rightly. First, this means state nullification of unconstitutional federal actions. Secondly, our Representatives need to exercise their Constitutional obligation to manage federal dollars prudently and begin to do the hard work of defunding these gigantic Federal Bureaucracies.

Thomas Jefferson, wrote, "In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

Adherence to our U.S. Constitution is the Federal case that we must make. It is the ONLY Solution Big Enough!


** Bruce Frohnen, The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002). 1/10/2016. http://oll.libertyfund.org/titles/669#Frohnen_0082_1989

26 Comments

  1. E. Werner Reschke ~ Jan. 11, 2016 @ 8:55 am

    Well written. You make the legal/constitutional case that the Federal Government is outside its boundary in managing such massive amounts of land. Another case can be made that this Federal action is not only unconstitutional, but also that the Fed's are some of the worst land managers in US history. Just look at the massive forest fires, river pollution, etc under their control. They are not only intruding in areas in which they have no authority, they are destroying our national resources in the process due to their incompetence. What’s more, since these agencies are not accountable to the people, they have no motive to change their methodology of colossal mismanagement. #
  2. patrick sullivan ~ Jan. 11, 2016 @ 9:52 am

    If I could I would drop a nuke on Washington, D.C. 4 million Syrians bombed out of their country! Your problem is minuscule compared to what this evil illegitimate government is doing around the world. I hate this government with every single bone in my body. 1 trillion s year spent on the "security" and military industrial congressional complex. Doing what? NOTHING. masturbators making a fine living ducking this country into the ground. #
  3. Tandy ~ Jan. 11, 2016 @ 10:50 am

    I'm afraid that this is going to be a major uphill battle and I'm not sure how successful people will be, but if we don't start pushing back, nothing will ever happen.... I just hope it isn't too late. My husband and I are ranchers and we do understand what families like ours are up against. Keep us informed and we'll do what we can. #
  4. Larry Nye ~ Jan. 11, 2016 @ 8:51 pm

    (What's with the higher math question? I/m still of the old school.) We cannot be afraid of the uphill battle. The 'founding fathers and mothers' were in an up hill battle too. Yeltson in USSR was in an uphill battle that ended with a flower in the the barrel of a tank. The boiling point is spilling over as we speak. Now is not the time to get weak kneed. Now is time the time take the step of using our legal tools. #
  5. Lyneil Vandermolen ~ Jan. 11, 2016 @ 11:17 pm

    Great articles. I wish Greg Walden had the same attitude toward tyrannical government but he's too busy making sure we finance our own foreign invasion. #
  6. Deanna Dyksterhuis ~ Jan. 12, 2016 @ 7:22 am

    Our property rights are the cornerstone to our freedom. Dennis is correct in advocating the dismantling of these federal regulatory agencies run by unelected bureaucrats which are outside the structure of our Constitution. It will take courage, and stamina in order to accomplish such. A convention of the states as Mark Levin describes in his book "The Liberty Amendments" explains how. To learn more about the Constitution and the power we do have as "the people"go to: online.Hillsdale.edu. Thank you Dennis for all you are doing for Freedom. #
  7. John Chambers ~ Jan. 13, 2016 @ 8:50 am

    Unfortunately, Art IV, section 3, also allows the Feds to own property. They can dispose of it, Constitutionally, in any way they please. We have to elect Congressmen, Senators and President who will dispose of it in the interest of the people rather than the Teddy Roosevelt Elite. Thank you Dennis, for running against Walden last time. I look forward to supporting you again if you choose to run again. #
  8. Dennis Linthicum ~ Jan. 14, 2016 @ 12:22 pm

    John - I disagree. You refer to, "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State." This says nothing about acquiring state land. "Needful rules... for other property" does not imply they can take state lands and then make rules about. Also, in terms of original intent, this is about new states and territories, not existing states. Also,no state is a "territory" but are themselves sovereign, free and independent states states. Thanks for helping people see things in the Constitution that they never knew about. All my best... #
  9. Dennis Linthicum ~ Jan. 14, 2016 @ 12:31 pm

    For more details watch: (Copy and Paste into your browser) https://www.youtube.com/watch?v=T424sWq1SkE #
  10. John Chambers ~ Jan. 14, 2016 @ 5:29 pm

    Thank you, Dennis. I love KrisAnne Hall. Would love to get her here in southern Oregon. I believe she has used an incorrect definition for a key term, which has lead her to an untenable position, but let us work with your post. You (and she) seem to assert that the Feds have TAKEN state lands. No, they didn't. They had the land to begin with, before the state existed. In the enabling act, which allowed the state into the union, they did not deed the land over to the state. We can say, "they should have" or "we should have held out for a better deal" but that is not what happened. The land remained Federal after the state was formed. We can go back to Article IV, section 3 you quoted above and say "it does not give the Feds power to acquire territory, only to 'dispose of' that which it already has. That was exactly Jefferson's dilemma when faced with the Louisiana Purchase. The Constitution did not give him power to buy territory. He wrestled with this, and then bought it. A Supreme Court decision in 1826 (if I remember rightly) agreed that if the Feds can 'dispose of' property, then it must be allowed to acquire it. So here is this Oregon Territory. It is 1859. Oregon wants to be a state. We are the Feds. We've put a lot of infrastructure and defense into this land. We'd like to make sure it is used to the best effect, produce the most prosperity. Do we just turn it over to the state, or do we sell it off to private parties to develop? We decide to keep it. Oregon accepts the deal. Everything is fine because we, the Feds, have a policy to encourage homesteading and mining and grazing and everyone prospers. Then comes the environmental movement and we the Feds get seduced into thinking that we need to 'conserve' it, no dirty timbering or mining, no horrible grazing. No (shudder) private property! To combat this mindset, we need to get the policy changed. A lot of educating needs to happen; we need to change the culture. Let's talk about the term KrisAnne relies on: Territory, and it is capitalized, as she mentioned. So is pretty much every other noun in the document, like 'Property' directly following Territory. It shows the Germanic origins of English. We don't capitalize everything anymore (the Germans still do, don't they?). 'Territory' here just means real property, real estate, land. It means land owned due to discovery, conquest, purchase, treaty, or cession. It is in ADDITION to needful forts and magazines in Art I, sec 8, clause 17. Yes, sometimes the Constitution repeats itself, like Art I, section 9 repeating the direct tax limitation in section 2. But I think this 'Territory' is different from the Art I, sec 8. She also asked about the Constitutionality of the BLM. It is in Art II, sec 2 in which it is assumed there will be executive departments. I have some other thoughts, about rogue agents and agencies who should be hauled into court for their violations of the law, and lose their jobs and pensions over it. Attacking the Constitutionality of the BLM will not be effective. Attacking the agents who think they are above the law will be. Let's do that. #
  11. Dennis Linthicum ~ Jan. 15, 2016 @ 5:57 am

    John, your advise about tactics may be correct but only because our nation has grown accustomed to this seemingly-fun-frolic in what will turn-out to be a deadly pot of boiling stew. However, your three main arguments stem from what logicians call "fallacies from silence,” (1) uppercase “T”, (2) assumption for acquisition authority and (3) assumptions for untold numerous adventures in executive departments and bureaucracies. The fact that our Founders did not know Radio, TV or the Internet doesn’t mean the federal government assumes the right for all facets of these technologies. Even if you argue that setting standards regarding the technical details for radio communications is a good thing, that leads to other standards that are inappropriate (i.e., standards for speech on the airways.) This is the exact extra-constitutional methodology that has led us down the road to executive, congressional and judicial overreach at the federal level. With your three deadly assumptions in place, the Tenth Amendment has no meaning, what-so-ever. Our Constitution becomes a fascist document to feared, not revered. During the debates about the ”District (not exceeding ten Miles square)” Dr. Taylor asked, "why it need be ten miles square, and whether one mile square would not be sufficient.” Also, in the debates about the need for a separate District the main goal was to prevent collusion between any state and the federal branches. The strength of state independence has long suffered under these false assumptions purchased at the cost of our individual liberty. We see it today in every state budget where federal dollars account for upwards of 35-40% of revenues coming into state coffers. This does not support independence but instead purchases complacent allegiance to federal usurpation. Given Madison’s adamant defense regarding state authority, via the limited powers of the national government, Dr. Taylor’s question is spot on. Even today, all three federal branches at the National level could effectively fit within one square mile. However, with all of your “assumed as valid” offices and departments including the DOI, DOA, DOC, DOL, DHH, DHUD, DOT, DOEd, DOEnergy, DOHS, DOVA, and all of the 3000+ agencies, commissions and program offices (http://bit.ly/USOffices) plus, the other costly extras which line the National Mall, the limit is getting stretched. (to be continued...) #
  12. Dennis Linthicum ~ Jan. 15, 2016 @ 6:12 am

    John, (continuation) The Louisiana Purchase was indeed a Constitutional mistake. The free, independent and sovereign States joined to create a contract for national services and authorized the operating constructs for the federal government; not the other way around. This purchase (Louisiana, 1803) led to other constitutional blunders: Texas, 1845, Oregon, 1864, and Mexico, 1848. I'm not saying these are bad things, but like healthcare and education they should not stem from the federal government, they should be initiated locally by the people of the respective territories. Lastly, the Enabling Acts are (1) "solemn compacts" and "bi-lateral [two-way] agreements" that are to be performed "in a timely fashion" (Andrus v. Utah, 1980); (2) The federal government holds territorial lands “in trust for the several states to be ultimately created out of the territory." (Shively v. Bowlby, 1894); (3) "Whenever [i.e. once] the United States shall have fully executed these trusts, the municipal sovereignty of the new states will be complete, throughout their respective borders, and they, and the original states, will be upon an equal footing, in all respects whatever." “. . . the United States never held any municipal sovereignty, jurisdiction or right of soil in and for the territory ... of the new States ... except for temporary purposes, and to execute the trusts created by the acts of the Virginia and Georgia Legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty with the French Republic of the 30th of April, 1803, ceding Louisiana." (Pollard v. Hagan, 1845). (to be continued...) #
  13. Dennis Linthicum ~ Jan. 15, 2016 @ 7:50 am

    (continuation) On March 18, 1780 Congress passed a resolution to retire all outstanding bills. This was to happen by transferring lands in a solemn compact in a trust relationship. This was before the US Constitution. ( Map of territories – http://bit.ly/ExcessLand ) These territories were excess lands that were to be disposed of in a prompt and judicious manner. After 40 years this was still not completed and in a veto message of 1833, Andrew Jackson describes the relevant history of the Public Land debate and suggests his desire that, "the machinery of our land system [should be] entirely withdrawn. It cannot be supposed the compacts intended that the United States should retain forever a title to lands within the States which are of no value, and no doubt is entertained that the general interest would be best promoted by surrendering such lands to the States." (http://bit.ly/VetoMsg) #
  14. John Chambers ~ Jan. 15, 2016 @ 12:38 pm

    Always learn from you, Dennis. Always a pleasure. Had to extract your three posts to parse the arguments. Wish posts allowed paragraphs. I will post a number of parts to this, one subject at a time, so it is in its own paragraph. That was the first one. #
  15. John Chambers ~ Jan. 15, 2016 @ 1:04 pm

    You assume I make certain assumptions. I basically have one -- that the Feds were granted certain specific limited powers by the states and ultimately, the people. By observation, you and I agree that the Feds, and ANY government, will attempt to overstep its bounds. We also agree that the Feds HAVE overstepped their bounds. You mention radio regulation which is an excellent example. Because radio waves cross state lines, we could say Congress could regulate it. But we can argue that FCC over-regulates, sticking their noses in areas they have no right. But the argument is not that Congress has NO interstate commerce regulation. The argument is that this or that is not part of interstate commerce. Our disagreement is whether or not the Federal government was granted power acquire and HOLD and get rid of real property. Do you agree that is the issue? #
  16. Dennis Linthicum ~ Jan. 15, 2016 @ 6:41 pm

    Good summary, John; I know the paragraph thing is hard because it really hampers readability. That's why I broke mine into several posts. –– I'll clarify my position with regard to "real" property – Yes, for the purposes enumerated in Article 1, Section 8, Clause 17: "for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." Otherwise, any "real" property for any number of unimagined uses must be contained within the designated District. This, then, would not include "real" property within the boundaries of designated states for any whimsical purpose that Congress, or the Executive, may choose. (Again back to the enumerated purposes...) #
  17. John Chambers ~ Jan. 16, 2016 @ 9:27 am

    I agree that land should be used only for designated limited purposes and what is being done with the land is constitutionally suspect. On the other hand, once the land is acquired, particularly land outside a state, like the Louisiana Purchase, or the cession of Puerto Rico when the US defeated Spain in a war, then Congress has the authority to “dispose of” in any way it chooses. (2 more posts continue) #
  18. John Chambers ~ Jan. 16, 2016 @ 9:28 am

    From your earlier post, I got the idea that you disagree that the US as a nation has a power to acquire land, and I agree with Jefferson that the power is not enumerated so it should not exist. On the other hand, I have a hard time conceiving of a US whose borders are defined by the Treaty that ended the Seven Years War (1763 as I recall, which divided the continent at the Mississippi, east was English, west was Spanish). #
  19. John Chambers ~ Jan. 16, 2016 @ 9:31 am

    What the Constitution Means is finally adjudicated by you and I, we, the People (not the Supreme Court). If we decide that the US border should be at the Mississippi, then Oregon, Iowa, Wyoming, all states west, except Texas, are not part of the US, all land belongs to each state, and if we want to join the Union, we have to go through the process in Article IV section 3. It is our job, you and me, to educate people. Maybe this option will prevail. It has its merits. #
  20. John Chambers ~ Jan. 16, 2016 @ 9:39 am

    Dennis, I’m off to the Constitution Study Group meetings now (www.whoownsyoujoco.org). In the mornings we are going through the Josephine County Charter word-by-word, section-by-section. At 1:30 this afternoon, we are going through the Constitution also word-by-word, it is maybe our fourth time through and each time I learn something new. We happen to be up to Article IV. I will attempt to present your view, but do wish I had you or someone who knows your view better than I, here to do it. I’ll check back in tomorrow, see what’s been added. #
  21. Dennis Linthicum ~ Jan. 16, 2016 @ 6:09 pm

    It's a great conversation to have. I hope others are reading along... Since you and I are in agreement, I'll make my final assertion. I also cannot fathom what a 'smaller' US footprint would look like and I'm not suggesting we should undo the land acquisitions (constitutional blunders) which we've both recognize. What I'm suggesting is the Feds ought to make every effort to put the land for which they claim jurisdiction into a more proper jurisdiction where the phrase, "the best government is the one closest to the people" can be fully realized. #
  22. Dennis Linthicum ~ Jan. 16, 2016 @ 6:13 pm

    In the Veto message I referred to earlier, Jackson echoes my sentiment (or, I echo his...) “This plan for disposing of the public lands impairs no principle, violates no compact, and deranges no system. … It would be just to the old States, and the new, conciliate every interest, disarm the subject [public lands] of all its dangers, and add another guarantee to the perpetuity of our happy Union.” #
  23. Boss Man ~ Jan. 16, 2016 @ 10:44 pm

    I've been looking for this discussion since this issue in Harney County erupted. Please continue, as no one else seems to know where to lay their allegiance in truth, and politicians like most laymen really on best past practice. #
  24. John Chambers ~ Jan. 17, 2016 @ 4:47 pm

    It so happens that the radio show we will be doing Tuesday picks up the Constitution at the end of Article III and we will certainly get to this area in that show. Tuesday, 9:30 am, www.kajo.com Constitution Study on the Air. I've spent today pouring over this and think the "cannot acquire" will not win, but the "equal footing" argument might very well. In any case, win or lose the Constitutional issues, there are some federal agents who need to be investigated. #
  25. Deborah Lee ~ Jan. 19, 2016 @ 11:52 am

    There is a Constitutional solution to this problem in Article V, the 2nd clause, which says that 2/3 (34) of the state legislatures can call for a Convention of States. A Convention of States is an Amendment Convention. The Convention of States Project is working to make this happen. Mark Levin, in his book "The Liberty Amendments" has proposed 11 amendments, several of which would help the situation in Harney County. Our Co-Founder, Michael Farris, spoke on the I SPY Radio Show in July about a COS and mentioned his own amendment ideas. One can listen here: http://ispyradio.com/show-5-29-convention-of-states/ We have 4 states that have approved their applications and 37 states that were "in-process" in 2015, including Oregon with bill SJM 6 (Boquist). If all of the 37 states were to approve their state application, there would be 41 states. This is a HUGE education effort of both state legislators and citizens. We morally cannot take another route to rein in our federal government until we have tried a Convention of States, the mechanism left us by the Framers. I encourage folks to read and sign the petition on www.ConventionOfStates.com and to learn a bit of English history that was our Framer's model for a Convention of States, called a "Convention of the Estates of the Realm". It's fun reading: http://www.americanthinker.com/articles/2015/09/how_a_famous_english_convention_clarifies_the_role_of_a_convention_of_states.html Sincerely, Deborah Lee Oregon State Director Convention of States Action #
  26. Albert E. (Al) Jones ~ Feb. 27, 2016 @ 3:49 pm

    I just read these comments and the subject of federally owned land within the states. So sad that someone had to die and others are in jail. I am truly mad as hell!!! and proud of those who have pushed back. As in so many issues facing the average citizen, the issue becomes so very complicated. Such as the water issues in the klamath Basin and the klamath river. We must take our money away from the federal government and put the states back in power. Therefore the 16th and 17th amendments must be repealed. We just do not have enough power, individually or as small groups (legally and financial) to control the federal government. This was a deep concern of the framers of the constitution as they came together to from a central government. We (citizens) lost so much power to control the federal government when these amendments were ratified. Our communities within our states have been in ever increasing battles with the federal government. Locally we have to fight the state since they are afraid of the federal government (source of money) and the state becomes another enforcer of federal laws. Selling out its own citizens in the process. (Go UTAH) Concurrently our country has been is a continuous slide towards socialism. Who ever thought a disciple of socialism/communism/Marxist would ever have a chance of being elected president in the USA. #

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