Wild Side readers are mostly offered personal accounts of visiting wild areas and exploring the magnificent landscapes and wild rivers in northern California and southern Oregon. But given all the attention to our shared heritage of National Parks, National Forests and Wildlife Refuges from the armed militants in Harney County, Ore., this column explores the legal foundation of public lands in our country.
Like many, my initial shock has turned to frustration as armed militants continue to control the Malheur National Wildlife Refuge. But I’m also baffled by the militants’ demands that are based on a bizarre interpretation of the U.S. Constitution and a misguided view of the history of Oregon and what is now the western United States.
First, a little history:
How does the U.S. Constitution relate to public lands?
The first three articles of the U.S. Constitution outline the founding fathers’ vision of a system of government well-protected from corruption — a system with three branches of government: Legislative (Congress), Executive, and Judiciary, each with its own set of limited powers, each kept in check by the other branches. The U.S. Constitution grants clear authority to Congress to make laws administering public lands for the benefit of all U.S. citizens.
Article Four gives the clearest authority for public land in the U.S. The Property Clause (Section 3, Clause 2) grants Congress authority to establish rules and regulations over our nation’s lands. Under this clause, the federal government disposed of lands in the 1700s and 1800s as it encouraged settlement of the West.
By the end of the 1800s, however, corruption had enabled private interests to control vast swaths of land. To stop the exploitation, in the early 1900s, Teddy Roosevelt began the policy of retaining the lands in the public trust and managing them for multiple uses. He established several National Parks (including Crater Lake), Wildlife Refuges and the National Forest system.
Since the early 1800s, the Judiciary has validated congressional actions that involved public land, which makes the militants’ demands to unravel public ownership impossible without violating the Constitution.
Where did the land come from?
Native Americans in various tribes inhabited what is now southern Oregon and northern California for thousands of years prior to European settlement. Here in the Rogue Valley, the Takelma Tribe was decimated by war and disease in the 1850s. Those that survived were sent to the Siletz Reservation on the Oregon Coast.
Today, Agnes Baker Pilgrim — Takelma chief George Harney’s granddaughter — survives as one of the last remaining Takelma and is a leader in seeking protection for clean water, wild salmon and what remains of the natural environment and native culture in this region. Near the Malhuer Refuge is the Burns Paiute Tribe ancestral territory. The tribe has a close relationship with the Refuge where many of their cultural artifacts are stored; unfortunately these artifacts have been rifled through by the militants.
What does it mean to give the land back?
One curious refrain from the militants is to give the land back to ranchers or to Harney County (not to the native cultures). However, the public’s land was never taken from ranchers or the county, so it cannot be given back.
In accepting statehood on June 3, 1859, Oregon agreed to all terms set forth in the act of Congress establishing the state of Oregon. In the act, Oregon received federal land that was a part of the “Oregon Territory.” Congress specified that the land shall be given “on the condition … that said State shall never interfere with the primary disposal of the soil (land) within the same by the United States.”
What would happen if Public Lands were gone?
I was recently talking to a friend from Mexico who has lived in Cabo San Lucas his entire life. In 50 years he has seen massive changes to his small town. As the hotels and resorts have cropped up, too many open beaches are now closed off. Where he once could walk to the beach there are private property signs and no access.
Similarly, “giving back public lands” would actually take them away from the general public and allow private entities to restrict access to parks, forests, and refuges. Without public lands, our opportunities to enjoy rivers, mountains and forests here in Oregon and in the Western U.S. would be gone.
Joseph Vaile is executive director of the Klamath-Siskiyou Wildlands Center (KS Wild, 541-488-5789, www.kswild.org). His Wild Side column appears every three weeks.