Urban Lawyer

The American Legacy of Public Land Rebellion

by John W. Ragsdale, Jr.

William P. Borland, Professor of Law, University of Missouri-Kansas City School of Law; B.A. Middlebury College, 1966; J.D. University of Colorado, 1969; L.L.M. University of Missouri-Kansas City, 1972; S.J.D. Northwestern University, 1985. The author wishes to thank Akemi T. Malone, B.S.B.A. The University of Tulsa, 2007; M.A. Webster University, 2008; J.D. Southern University, 2012; L.L.M. The John Marshall Law School in Chicago, IL, 2015; for her extensive help in the preparation of this article.

THE MOST RECENT MANIFESTATION OF THE SAGEBRUSH REBELLION1 is a mind-bending, consciousness altering, looking glass version of logic and reality. The sight of Cliven Bundy with his big hat, massive silver belt buckle, and his equally sizeable paunch, his unemployable spawn, the late, doggedly litigious Wayne Hage and his dutiful descendants, the swat teams of heavily armed, confrontation-seeking acolytes, equipped with flak jackets, AK-47s, second amendment signage, and “patriot” bling is, to be charitable, cartoonish.2 This clown car has emerged, clad in the sackcloth of “injured innocence”3 and professing to be the beleaguered natives of the Great Basin’s high desert.4 They announce rebellion against the evil federal Sheriff of Nottingham. In truth, only the Western Shoshone could legitimately make this claim, and, indeed, the Dann sisters are true American heroes.5 These characters at Bunkerville and Malheur are most decidedly not the like of the Dann Sisters.

This crew of modern-day Yosemite Sams are, however, aided and abated by the insatiable ratings hunger of the 24 hour news cycle, by the fire-breathing, right wing radio hosts and by the preternaturally, perpetually irritated Tea Party; and beyond, more sinisterly, is the aid of the dark money of the corporate imperialists and the power of their legislative henchmen.6 The real rebellion, which exists behind the stalking horses of the “useful idiots,”7 is being fomented by the likes of the Koch Brothers, Utah Representative Ken Ivory, the American Land Council, the American Legislative Exchange Council, and most of the 2016 Republican presidential candidates, including Ted Cruz and Marco Rubio, all of whom are dedicated to the divestment of the federal public lands.8 This makes the rebellion worth a closer look.

I.  The Roots of Rebellion

The modern media barrage can present the modern uprisings as unique or clearly associated with modern right-wing angst over federal regulatory power and executive tyranny.9 The origins, however, easily seen in the progressive movement of the late 19th century,10 are present at the founding of the nation, are traceable back to the original invasion of the Americas by the European explorers, and can even be witnessed in the Crusades, occasioned by the papally-decreed Doctrine of Discovery.11 The early American occupiers felt that the Indians’ possession could be subordinated, in sovereignty and ownership, by reason of the Europeans’ superior race, culture, economy, firepower and Divine blessing.12 Priority among the exploring nations was accorded to the first in time, and ownership depended on the acquisition of Indian possession, through force or contract, under the authority of the discovering sovereign or its successor.13 The patriotic resistance and rebellion by the colonists was premised largely on the Crowns’ Proclamation of 1763, which frustrated colonial land speculation in the Ohio Valley.14 Thus, the ensuing war and founding of the country was more about the freedom to profit from Indian land than it was the freedom to speak and worship freely.15

For the next century the new nation parlayed the naked legal title and sovereignty of the discoverer and conqueror, and the extinguishment of the Indians possessory interest,16 into a saleable, disposable federal public domain that extended through the heart of the continent, all the way to the Pacific Ocean.17 The central government handled the ownership of nearly two billion acres of land with the lightest of reins, and began disposition almost simultaneously with acquisition.18 The United States sought to spread its landed democracy west, partly to secure its sovereignty on an international scale; and also to finance its internal operations, subsidize business and internal improvements, and facilitate a general economic viability and vitality.19 Indeed, the ideas of Manifest Destiny and American exceptionalism belied embracement of a secular religion of growth,20 linked to both God’s purported command to subdue the earth,21 and the free markets’ imperatives to commodify the land and maximize the profits.22 American individuals and businesses moving west may well have been moving into a Lockean state of nature, but as a statement of fact they were moving on the wings of subsidy — land, water, and resources owned by the central government.23

The modern version of the Sagebrush Rebellion began to emerge in the late 19th century. Settlers, business, and new states had received hundreds of millions of free or underpriced lands under the Railroad Grants, the State Enabling Acts, the Mining Act of 1872, the Homestead Acts, the Preemption Act, the Desert Land Act, and the general deference to state and territory acceptance of the doctrine of the prior appropriation of water.24

Settlers and ranches, beyond this, had free access to the unreserved public domain.25 Indeed, the only 19th Century restraint on the use —  and tragic overuse26 — of the federal commons was the Unlawful Enclosures Act, which prohibited the fencing of the commons without right of possession.27 Then, in 1890, Frederick Jackson Turner wrote: “And now, four centuries [after] the discovery of America, at the end of a hundred years of life under the Constitution, the frontier has gone, and with its going has closed the first period of American history.”28

Much of the new nations’ most readily available resources had been quickly and privately appropriated, and population, competition and consumption were accelerating.29 George Perkins Marsh, one of the first ecologists, wrote about the devastating impact of deforestation on civilizations,30 and others observed that industrialized timber culture had indeed denuded much of the central states’ original forests.31 The glimmerings of imbalance and the limits of natural carrying capacity began to penetrate the reductive logic of laissez faire and the unfettered free market.32 The set-aside of Yellowstone as the world’s first National Park in 1872,33 the General Revision Act of 1891, which allowed the President of the United States to unilaterally proclaim forest reserves from anywhere within the public domain,34 and the act’s enthusiastic utilization by Presidents Harrison, Cleveland, McKinley and especially Roosevelt added over 150 million acres to the permanent federal reserves by 1909.35 The Land Disposal Express had begun braking and this set in motion the conflict at the heart of the modern confrontation.

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