After listening to the Think Out Loud radio interview this morning I had a few thoughts. The interviewee, a member of the militant militia that have taken over a wildlife refuge suggested that the federal government had not bought the land from the state so it has no rights to the land. The militant suggested that the federal government should give all such holdings back to the states and also suggested that the federal government had to reserve its land ownership to the District of Columbia only.
At no time in this interview was there any discussion about tribal treaties or tribal land rights. Nor was there an informed discussion about the history of the land. The militant suggested that the federal government had just taken the land from farmers and should give it back or they, the militia, were not leaving. I am not sure if they are aware that much of this land never belonged to the state at any time. The land was originally Native land and had been for over 10,000 years.
Previous to farmers owned the land, the land was owned by the various Northern Paiute tribes of the region. The Paiutes ceded the land to the Federal government under numerous treaties and agreements, including the Shoshone-Bannock treaty, but many went unratified. In the U.S. Constitution, Treaty making with foreign governments is specifically reserved as a federal government activity, states alone cannot undertake such an action. In 1871 the Malheur Reservation was created by executive order. This was a federal reservation for the Paiute people. Then in 1878-79 the Bannock War occurred causing the federal government to close the reservation in 1880. The war occurred because the Paiute people, were not at all happy with how they were being treated on the reservation as farmers were encroaching and claiming land on the reservation and there were more attacks on the people. They left the reservation and the War involved trying to capture them to return them to the reservation. After closure of the reservation, the Paiutes were scattered between several reservations (Warm Springs, Yakima) and a few remained in that area. Those who remained received off-reservation allotments under the 1887 Dawes act. The Burns Paiute tribe was not restored until 1972.
The region was settled by a few farmers and ranchers. William Kittredge wrote at least two books about the history of his family in the region (A Hole 
in the Sky, Owning it all).
Several generations of the Kittredge family farmed and ranched out there and they leased about a million acres from the Federal government. The rich marshlands were turned into agricultural lands. Annually migrant farmworkers would stop there to help harvest the crops.
This all ended with William Kittredge’s generation when the land was turned back over to the federal government and work commenced to restored the natural marshes. The marshes are migrant waterfowl stopover sites for birds traveling annually north and south. It is important to keep the marshes healthy to preserve the waterfowl environment.
Farming as a profession may not be viable in the region. Farming has changed in the last 150 years and now unless a farmer owns tens of thousands of acres it is tough to make a living. Unless the militants really understand the history they will have a tough time making any changes, because the militia is not addressing the realities of that environment.
It is unclear how the farmers would make a living. Ranching may be the only viable option. Farming would require thousands of migrant farm laborers. Then a farmer must be willing to brave the tough environment in eastern Oregon to make a living. This is a very sensitive ecological environment and many millions of animal, plant and bird species depend on the high desert marshes to survive. The benefits to the environment overshadows the possible benefits of returning the land to farming.
An interesting parallel presents itself here. When tribal people within the American Indian Movement (AIM) took over federal lands and buildings in the 1970s, there was huge activism by federal law enforcement against them. The Wounded Knee II conflict (1973) resulted in several deaths on the Native side. Natives then were dealt with very harshly. This is a polar opposite of what is occurring today in eastern Oregon at the Malheur National Wildlife Refuge. White American Militants are not raising much excitement from federal law enforcement. At this time the sole action is to ask them to leave and turn off their power. The difference in treatment is huge and yet another example of how laws are applied differently to people of different ethnic and racial backgrounds, with white male militants gaining a huge benefit from their privilege in society. Not that such an action needs to be dealt with harshly, but if natives or other peoples were to undertake the same action, the response from federal and state law enforcement would likely be different.
Finally, its interesting that a farming family is in jail for setting fire to the federal lands. I have not heard that any buildings were set fire and am unaware of the particulars. Tribes in the past would normally set fires annually to their lands. The result for tribes was increased growth in the next year as well as a host of other benefits (destruction of pests, clearance of bramble, preparation of weaving materials for harvesting). As well, federal agencies are now adopting policies in the West to allow fires to burn as a way to manage the forests. They now realize that such fires are natural occurrences, and they reduce the possibility of hugely destructive fires in the future by burning away the dead plants that accumulate near the ground. So the fire probably benefited the federal lands more than it destroyed them.
Update: 1/5/2016
It is truly amazing that we live in such a time where regular folks have no idea what the history of the place where they are living. Its not like the history is hard to find. I found Kittredge’s books by accident in the 1990s and they informed be me greatly about a tribe I have little other relation to. Native history of the Oregon tribes is generally ignored in education and this may be a symptom of the 1960s and 1970s when much of Native history was not being well documented nor discussed in schools. This situation exists today as well as we enter the STEM national education program and students in our schools are not encouraged to learn social studies, in favor of math, science and engineering. I fear for the next generation as we produce more students ignorant of the history of the world around them.
Update: 1/6/2016
Various sites and memes on Facebook are calling this an Oregon Militia. I can’t say for certain that no one from Oregon is involved, but, the majority of the militia are from Nevada and Idaho. Oregon residents are asking them to leave and the Burns Paiute tribe has told them in no uncertain words, to “get out”. The wildlife preserve is not meant for Rving nor is it appropriate to drive their ATVs all over Native archaeological sites.
Thank you for this article! I had read another article about the Malheur Indian Reservation, that there squatters who moved on to the rez, ran their own stock, and bragged to Indian Agents that they were going to take the land for themselves. Ultimately, they got their wish. Lather, rinse, repeat I guess.
Indeed the arid lands of the Great Basin are pretty unproductive for farming and ranching – it does indeed take vast tracts of land to even make it possible (not to mention, as you point out, labor as well) & even with running roughshod over public lands (treating them as personal property rather than public) it is tough to make a living these days. Climate change projections seem to point to some very scary drought – and higher temperatures – it is all going to get tougher.
These self styled militia types tho’ don’t deal in reality. They living in a combo John Wayne-Mormon fantasy (it is interesting that the Bundys and their prominent supporters at the refuge – Capt. Moroni, LOL – are Mormon and heavily influenced by that particular culture). I remember reading “Cadillac Desert” years ago (about water policy in the west) & the author mentioned how 19th century farmers believed, most sincerely, that rain would follow the plow. Move into the dry west, plow and plant wheat, and the rain was sure to follow. It just HAD to – how could nature or God ignore the hard work of white settlers? Well, nature and God did. No matter how fervently they worked and prayed, the rains did not follow the plow. And all the work of the BoR and Army Corp to damn rivers ultimately came with its own costs and problems…these militia men live in their own fantasy world, and don’t accept how economics and values have changed – not to mention the basics of climate and ecology. THey are 19th century men in a 21st century world.
Also, saw this interesting link of an encounter with Hammonds and unhappy Harney Co ranchers here 20 years ago. Well, 20 yrs on seems little has changed: http://www.counterpunch.org/2016/01/05/showdown-in-the-malheur-marshes-the-origins-of-the-armed-occupation-in-burns-oregon/
You have no idea what you are talking about. I live in eastern Oregon and the government/environmental miss management is destroying our land. You are the one who is out of touch with reality.
thanks for the comment, there is always one in the bunch.
Mismanagement.
The benefits of fire in this area are not the same as in areas with more water. Fires of 20 years ago still have little re-growth. And the fires are not easy to control. Thousands of cattle were burned alive in the last few years’ fires.
The environment is radically different today and even 20 years ago as opposed to 160 years ago when Native people did manage the land on a regular basis. Imposition of fire suppression over the past 160 years has created the tinderbox where animals and plants are likely to die in extreme fires. Then regular burning produced fires that did not kill everything for long periods of time, but burned cooler and would allow the environment to rebound faster. These are well documented effects of regular fires that are now being implemented and planned for in many national forests.
Yes, this is correct. Fire has always been used as a tool for management but in this case, the fire set to the fed land was set to hide poaching activities. The ranchers involved allowed cattle to range into fed lands and then set fire to it to hide their illegal activity. Otherwise, this is a great, well-informed article. thank you.
Your comparisons here don’t make sense. Fire, actually would have been part of this natural ecosystem. The reason the recent fires in eastern Oregon caused so much damage and loss are two fold, one..moderate, seasonal fire has been kept out, and two…humans have deemed the region a place to keep cattle, where there is property, there is property loss. Historically, there would not have been cattle on this range, they are not natural and therefor the affect of their loss in recent fires is not a reasonable comparison to historic land value.
Very interesting history of the tribal ownership and dispossession. Thanks for sharing. Also agree that farming is not viable in the high desert. But neither is ranching environmentally sustainable. As far as the father and son ranchers, the Hammonds who are going to jail, these men are tried and convicted arsonists. The jury of their peers in southeastern Oregon, found them guilty of intentionally burning land on the federal game preserve in order to HIDE EVIDENCE that they were illegally POACHING DEER on the preserve. Their alibi, which was rejected by the jury, is that they were doing prescribed burns. That was judged to be a lie.
Thanks for the details of the original trial and illegal actions of the Hammonds.
Not sure about a jury of their peers. My understanding was that the jury wasn’t from that area, were not familiar with ranching or prescribed burns. We do need to make sure that we look deep for truth. I don’t honestly know what that is here. I don’t know what the evidence is for them poaching deer. A lot of this might be heresay, so I guess if people are going to write on the subject, it would be best to find the actual documents. Also, it appears the BLM has tried to force the Hammonds since as far back as 1970 to sell their land using many underhanded ways, which started the whole thing. I wish the militants would be clearer on stating what they want. They should take the opportunity to say something like, “We want the laws changed regarding….or we want a voice about ………. They did give a list of grievances about the actual Hammond case and how many laws and protocols were broken. I just think they need to take this opportunity to be concise with their demands. I do understand when people try every way they can legally to petition, write letters and follow protocols with no avail that they become desperate. We do have a bureaucracy in many areas that absolutely refuses to listen or act with humanity. That being said, I await more information before making judgement one way or another. I think it is important to have all the facts. In my reading, it said that it was a prescribed burn on the Hammonds land that ended up taking BLM land as well. Again, hard to know what to believe.
Were they charged with the crime of poaching?
I am not sure, I am not privy to the court documents.
thanks for the details
Thank you for this fascinating history of this land. The militants seem to (conveniently?) forget who the original owners actually were. My understanding is that the Hammonds have been ranchers in the area for some decades, and in the 1990’s prescribed burns were done regularly both by the BLM and the ranchers. The first of two fires they set was such a prescribed burn, set after contacting BLM (or was it FWS). That fire inadvertently spread to burn just under 140 acres of BLM land, which did indeed benefit that land. This is according to court documents. The Hammonds extinguished that fire without any outside help. According to another rancher in that area, that practice has been mostly stopped, and as a result the fires are burning hotter and larger, with the end result of “sterilizing” the land so little will grow back. The second fire was set as a backfire in response to multiple lightning strike fires in the area, and it is believed to have saved their land and possibly their house. It is also claimed to have burned an acre or two of BLM land, although family members question how they could determine which fire was which. In any case, they have gone willingly to serve the sentence they were given, and the out-of-state militia have come in to make their demands. I appreciate your historical perspective on all of this.
Thanks for the response, yes the forest services are now beginning to understand this phenomenon. Unfortunately the BLM’s seem to be a bit behind in adopting these strategies.
Land title – was established in the Oregon enabling act.
Indian treaties – the treaty with great Britain that established the Canada US border required treaties for all of remaining oregin territory
1843 Oregon territory meetings. My great great grandparents signed the documents at champoee Oregon territory
Patent office dept of interior – established title to all of Oregon territory that included or, wa, id, wo, ut,
Enabling act – transfered certain lands established Oregon donation land act and transfer to railroad and land trannsfer. See I v lands and history.
Oregon treaties – were written never honored as this author points out.
Oregon Indian wars -a fiction of Oregon chamber of commerce for federal gov contracts
Some the details of this are a bit off. i will respond later. but the Wars did happen.
Establishment of Doctrine of Discovery Title used to justify US claims over Britains in the Oregon Territory, was based on a doctrine that is racist and religionist – only white Christians could practice this magical legal thinking – based on Roman Catholic Papal Bulls, and even in this racist legal doctrine Indian Title was recognized and by international law recognized as legitimate into perpetuity. Livery seisin in law title, could be granted to settlers by the government legally once Discovery based allodial title was completed – but it was in fact illegal to occupy such lands until Indian Title was voluntarily ceded and livery seisin in deed title then became legitimate under the colonial legal system. (I am aware of a case in Georgia that determined this). This completion of title could not ever be delivered because the Indian Title was never properly extinguished. The racist and religionist Doctrine of Discovery was made into the fundamental common law principal of property ownership in the 1823 Johnson vs M’Intosh case and continues to be used against Indians as recently as 2005.
Indigenous legal orders are present and the ancient first laws are continuing to be taught in the first food ceremonies, storytellings and many other cultural transmissions despite the banning of religion and language and sovereign governance by the federal government up until 1978. None of these land ownership concepts were negotiated but rather they were imposed by the feudal legal principal of “might is right”. The Supreme Court itself has ruled that a “treaty was not a grant of rights to the Indians, but a grant of rights from them – a reservation of those not granted.” (US Const. art. VI; United States v Winans, 198 US 371 (1905). Perhaps it is time that we give the Paiute people the chance to teach the ancient First Law of this land – and we all get an education on our responsibilities – as they never ceded the land and ethically all occupiers should be looking to their leadership as guests in these lands.
There is a huge truth and reconciliation process that we have ahead of ourselves if we are to have equity and healing from the genocidal process which has continued in such law retaining “legitimacy”. The impact of repressed history, a part of an ongoing cultural genocide, is being expressed in the widespread ignorance of the history. Thanks for helping us to see the history more clearly!
Good article. Thanks. I went to junior high and high school in eastern oregon. We learned nothing of the native population. All the history should be taught.
Most of the tales the militant-rancher-supporting crowd are coming up with are either false or spun so heavily they can Frisbee. The Hammond family has had multiple run ins with the law and what convicted them in this most recent case was their own lies and the testimony of witnesses and their own family members. The case is in the public record, as is the cause of their resentencing. http://www.justice.gov/usao-or/pr/eastern-oregon-ranchers-convicted-arson-resentenced-five-years-prison
PS: prescribed burns are allowed by are ranchers after giving appropriate notice, but this family did so on more than one occasion without appropriate notice, and in the criminal case, to cover up a poaching operation. The endangered fire fighting crews in the process.
They and their lawyers had several court appearances, were convicted on the evidence, and as criminals, must serve their sentences. I do believe that mandatory minimum sentencing can be unjust and should be applied intelligently.
See OregonLive.com for some history of the conflicts between gummint and the Hammonds, which includes the Hammonds threatening to kill agency personnel, and obstructing and harrassing agency work. Looking up “death threats” might do it, if it isn’t on the front page any longer.
The Bundyites are engaged in terrorist activities, as defined by those horrid anti-terrorism laws that were rushed through Congress and have been vigorously applied…but not very vigorously to white men.
I agree
Nice article, David. And I appreciate the reasoned responses. I’m sure there is more to know but this is a good start.
“I can’t say for certain that no one from Oregon is involved, but, the majority of the militia are from Nevada and Idaho. ”
Several are from Arizona:
Leader Ammon Bundy operates a towing company in Phoenix for which he has received a 1/2 million dollar loan from the tyrannical Federal government’s SBA.
Brian Cavalier, Ammon Bundy’s bodyguard, is a tattoo artist from Arizona who just left after journalists exposed that he was engaged in “Stolen Valor” for lying about Marine Corps service in Iraq and Afghanistan. He never served.
States and Federal Governments are STILL handling Native American activism harshly! Just look at how they handled the Malheur Militants, and the No DAPL activists! When the Natives peacefully assemble to protect their homelands from harm they use Military attack dogs, rubber bullets, water canons, tear gas, and pure brutality. But the loser militants at Malheur were handled with kid gloves., but you can’t let peaceful Grandmothers protesting for basic human right of clean water in their own homelands speak against The federal governments constant attacks on the rights of the ethnic Americans. (NA’s)!