An Occupation In Eastern Oregon

The Land Dispute At Malheur Is No New Phenomenon

By Jerry Headley (OPB)
Feb. 2, 2016 12:16 a.m.
A militia patch on the arm of a protester in Burns, Oregon.

A militia patch on the arm of a protester in Burns, Oregon.

Amelia Templeton / OPB

As the occupation of the Malheur National Wildlife Refuge continues into its second month, questions remain about why it ever began, when it will end, and if it will happen again.

If history tells us anything about the current occupation, it's that federal land management disputes of its kind are nothing new. In fact, according to Phil Brick, a politics professor at Whitman College, these battles are an ongoing issue.

Historically, Brick sees a strong correlation between the Malheur occupation and past conflicts between ranchers and federal land managers. In a conversation with Think Out Loud host Dave Miller on Friday, Brick cited Little v. United States in 1911, the Sage Brush Rebellion of the 1970s, and other mid-1990s land disputes as evidence of a consistent public disagreement with federal ownership.

Although these situations have repeatedly popped up throughout U.S. history, they have led to the same judicial decision. The Supreme Court has continuously upheld the constitutional right of the federal government to own land — so why continue to fight this decision?


A common element running through these land disputes is “a narrow reading of the constitution," according to Brick.

“It’s interesting because here [in the Malheur occupation] you have people who are standing up with a certain interpretation of the constitution which is probably, clearly indefensible” Brick said, “but these are committed people.”

Those protesting federal land ownership frequently cite Article 1, Section 8, Clause 17 of the Constitution, which outlines the initial setup and layout of the federal government’s property in Washington, D.C., (approximately 10 square miles) and other very limited government properties. Verbiage in this section also dictates state legislatures must approve any expansion of this land, thereby giving Washington no supposed legal right to own unapproved land, Brick said.

Related: How Refuge Occupation Could Fuel Land Privatization Movement

To Brick, those referencing this singular section of the Constitution as a means to argue against federal land ownership are only seeing half the picture. He lists the Constitution’s Article 4, Section 3 for a more complete image.

“Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or property belonging to the United States. Period … and that’s what's held up in court over the years,” he said.

Further complicating and fueling this historic issue is an element of county and state government involvement. Movements in the 1990s saw elected county officials, and even some state representatives, attempt to annul federal authority and mandate the surrender of federal land to the states in which they are located.

Moving forward, Brick sees the inevitable continuation of this debate over federal land ownership and encourages open dialog.

"Those of us who care about public lands very deeply (and I do) ... I think we're on notice that there could be political battles ahead," Brick said.