A look at public domain and now
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I’ve been watching closely the situation near Burns, Ore., in which armed men took over control of a small federal facility. The underlying dispute here arises because the federal government owns large quantities of land in the West.
I’m not sure how this situation came about in Oregon, but all western land started out as part of the public domain and, of course, the United States held it from the beginning. No other entity could have owned it. These lands were subject to patent in the names of private citizens if claimed under a land settlement act (such as the Homestead Act or the Desert Land Entry Act). But much of the land was not feasible for land settlement and this remainder stayed with the federal government. When states were admitted to the union, the normal condition of admission was that public domain lands stayed with the federal government.
From the beginning in Wyoming, powerful men, usually big ranchers, pushed hard to have the federal land set over to the state. Francis E. Warren, United States Senator and maybe the biggest landowner in Wyoming, zealously forwarded federal legislation to accomplish this purpose, much to the dismay of his political opponents. The Wyoming Democratic party, though a non-factor in Wyoming politics when Wyoming became a state in 1890, was strongly opposed to federal lands being set over to the state, condemning Warren’s land bill as an “infamous measure.” They saw Warren as the leader of a group of cattle barons who, through their effective control of the State of Wyoming, would quickly seize all the new lands.
As Prince Hamlet said: “Ay, there’s the rub.” This dispute over the control of lands within a western state always comes down to the question of who is to receive the former federal lands. In 1890 Wyoming small ranchmen felt that members of the Wyoming Stockgrowers Association, already in control of almost all the levers of power in Wyoming, would quickly shut out all the small ranchers. But then, in 1892, an event happened that suddenly changed the dialogue, empowering Wyoming Democrats. In the Johnson County War, big ranchers and 25 hired gunmen rode north to Buffalo to hang or shoot 70 men. The actions of these men incensed most of the people of Wyoming. The invasion was put down, and a lot of Democrats were elected, all pledging to resist any land grab (as they put it) by the State of Wyoming. As a result of the Johnson County War, Francis W. Warren was not sent back to the United State Senate in 1892 and when he did return, in 1894, he was never able to muster sufficient support for a land transfer bill to be enacted.
After the Johnson County War, most Wyoming people, whether Republican or Democrat, were never comfortable with bringing control of the public domain back to the state and, thus, they believed, to a controlling elite.
Flashing forward to Oregon in 2016, the core consideration has not changed. Small ranchers probably don’t like the idea of adding to the huge chunks of land already controlled by big ranchers (such as the Bundys, of southeastern Nevada, the people who seem to be behind this event in Oregon). Nor do hunters, fishermen, hikers, Indian tribes, archaeologists or energy companies. These people believe, I think accurately, that such a land takeover would shut them out, and that administration of federal lands by the Bureau of Land Management assures a broader and fairer use of the public domain.
I don’t know how everything will turn out in Oregon, but however it does, a crucially important question should be addressed. If the 53 percent of Oregon lands owned by the federal government goes back to the State of Oregon, who will receive them? I see that Ammon Bundy issued an ambiguous demand, which seems to come down to his insistence that ownership be set over to Oregon ranchers to the exclusion of everyone else. Sounds an awful lot like the situation in Wyoming in 1890.
John Davis was raised in Worland, graduating from W. H. S. in 1961. John began practicing law here in 1973 and is mostly retired. He is the author of several books.
