Most of the Bundy Gang is in jail, three awaiting trial on a slew of federal charges surrounding the occupation of the Malheur National Wildlife Refuge in Oregon and refusing to pay federal grazing fees in Nevada. Nine have plead guilty and 17 await trial.
Cliven Bundy, the patriarch of the gang was arrested after getting off an airplane in Portland, Oregon on his way from his home in Bunkerville, Nevada on his way to the Malheur Refuge where his two sons, Ammon and Ryan were ringleading an illegal occupation of the refuge headquarters. (Another son, Cliven Lance, is serving time for burglary and gun charges).
The Bundys and their ilk disdain the federal government and deny it owns the federal public lands in the West. While they hate the federal government for its size, its actions and its policies, they nonetheless revere the United States Constitution. They believe the federal government (executive, legislative and judicial branches) has run amok from the intent of the founding fathers.
Not unlike the Holy Bible, the U.S. Constitution is open to cherry-picking passages to affirm one’s preferred view. However, the 4,537-word Constitution has a lot less words to cherry-pick from and there is only one version of the text. Unlike the 783,137-word (King James) Holy Bible, the Constitution has not been translated from ancient languages or authored by various people in various centuries with various agendas. The Constitution was written in the English that we all generally still speak (though from today’s eye it reeks of Excessive Capitalization) and by a committee of the whole all in the same room at the same time.
Disagreements over biblical interpretation have has led to the many sects of Christianity. Disagreements over constitutional interpretation are ultimately resolved by the United States Supreme Court, which are legally binding—at least to law-abiding citizens.
The Bundy faithful point with an authoritative zeal to the Constitution’s Article I, Section 8, Clause 17, the “Enclave Clause”, which grants to Congress the power, among other things:
To exercise exclusive Legislation in all Cases whatsoever, 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 by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful buildings;
As the Bundy gangsters generally don’t accept the legitimacy of the United States Government at all, don’t expect them to now see the light and slap their foreheads and say, “If only I’d read the Supreme Court’s ruling in Kleppe v. New Mexico (1977) (426 U.S. 529) before occupying a refuge!”
However, for those law-abiders among us, Kleppe (Thomas Savig Kleppe served as President Ford’s Secretary of the Interior) corrected the State of New Mexico for confusing/conflating the “exclusive jurisdiction” in “I, 8, 17” (as Bundyians like to say), with (as I like to say) “IV, 3, 2.”
Article 4, Section 3, Clause 2 says (the “Property Clause”):
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….
“Exclusive jurisdiction” (“exclusive legislation” in I, 8, 17) means the federal government has all power over land acquired by the federal government for “needful buildings, if the state consents.” A state may consent to the federal government having exclusive jurisdiction before the federal government acquires the property, or afterwards. Or it may never consent. The federal government need not get the permission of a state to acquire property for a needful facility, but only if it wants exclusive jurisdiction.
Regarding the Property Clause, the Supreme Court has found that “[t]he power over the public land thus entrusted to Congress is without limitations. (United States v. Gratiot (1840) 39 U. S. 527).
Even if a state does not consent under the Enclave Clause, in any case, it doesn’t apply to federal public lands, which are subject to the Property Clause.
To go deeper on the Property Clause, see Lewis and Clark Law School Professor Michael C. Blumm's thoughtful response to KrisAnne Hall, a self-proclaimed “constitutional attorney, author, speaker, radio host” who, according to Blumm, has a “primitive view of the U.S. Constitution and the American legal system… who apparently reads no judicial case law, or who completely ignores it.” Alas, the Bundyians are not alone.
Ammon Bundy has recently testified that they expected to be charged with trespass, from which they could then mount a defense that what they did was not illegal because the federal government owning the Malheur National Wildlife Refuge (and almost all other public lands) was unconstitutional.
Based on the settled case law surrounding public lands and the facts surrounding their occupation, insanity—temporary or otherwise—may be a better defense.