The Bundy ranch saga has been the subject of heated good guy/bad guy framing by both mainstream liberals and mainstream conservatives, who differ only on which roles to assign to Bundy and the feds, respectively. But I can’t really see any good guys in this.
The respective echo chambers for the two sides differ on whether the land in question was originally federal property from the time of acquisition or originally property of Bundy’s ancestors and then taken over by the government. There’s disagreement over whether Bundy attempted to pay the fees, and there was some bureaucratic snafu about whom to make the check out to, or he’d just flat-out refused from the beginning.
The claim that Bundy’s family owned the land since the 1880s seems rather tenuous, given that one condition for Nevada’s admission as a state was the recognition of all federal land claims dating to the acquisition of the land from Mexico. And Bundy doesn’t object to the idea of vacant land acquired in war passing into the public domain — he just believes, on constitutional grounds, that it’s the state of Nevada or Clark County, and not the U.S. government, that’s the rightful owner he should be paying taxes to.
And the Paiute Nation included the whole area of Nevada that Bundy’s ranch sits on, before the Paiute were driven into reservations on a minuscule fraction of that land….
But regardless of all that, there’s some stuff we should be able to agree on.
The feds aren’t good guys. Far from it. Let’s start by asking how the federal government came to own such a large share of Nevada land in the first place. The answer is it had been in the domain of one settler state after another from the time of initial European conquest and colonization: First of the Spanish crown, and then of the government of the Republic of Mexico. From there, it passed via the Treaty of Guadalupe-Hidalgo — following a war of aggression predicated entirely on lies by the United States government — into the U.S. “public” domain.
Naturally, much of the land in the state domain under all three of these empires was never really as “vacant” or “unowned” as it was made out to be in official legal doctrine (as is the case with the Paiute).
And whether any particular tract of land in Nevada was the rightful property of the First Nations who lived on it, or was genuinely vacant and uninhabited, the preemption of actually or theoretically vacant land is what settler states do. It’s a counterpart to the Old World phenomenon of landed aristocracies claiming “ownership” of already settled areas and collecting rent from its rightful owners: the peasants whose ancestors had been cultivating the land from time out of mind.
Free access to unused land is a nightmare for economic ruling classes. Franz Oppenheimer argued, in The State, that economic exploitation was impossible so long as employers had to compete for workers against the possibility of self-employment — most importantly, until a little over a century ago, self-employment on vacant land. Oppenheimer argued that — at least in predominantly agricultural societies — exploitation is only possible when all land has been appropriated and no more is available for self-employment, leaving no alternative but accepting wage labor on whatever terms are offered. But natural appropriation of all the land — appropriation by occupying and altering it with one’s labor — would be impossible. The world was, indeed, almost universally appropriated, Oppenheimer said. But it was appropriated by law rather than labor — i.e., simply enclosed as artificial property by landed aristocrats in the Old World, as large land grants to politically connected individuals in settler states like the United States, or incorporated into the public domain from which ordinary homesteaders were excluded, as with the Western lands.
In the early days of another settler state, Australia, economist E.G. Wakefield called for state enclosure of vacant land into the public domain. He argued that free access to land by ordinary settlers was making it impossible for employers to hire labor at a low enough wage to be profitable. In Britain before the Enclosures, likewise, farmers complained that when peasants had access to rights of common pasturage or could erect cottages on the common waste, wood, or fen, it was impossible to get them to work at agricultural labor as cheaply, or for as many hours, as desired.
The Homestead Act, passed during the Lincoln administration, is generally framed as a triumph of populism. But it actually involved only a small fraction of total public-domain lands out West, and the sodbusters — who, if a given parcel were genuinely unoccupied and unused, should have automatically become the first owners without anybody’s permission when they mixed their labor with it — had to pay for the land.
But guess what? The U.S. government gave a much larger portion of public domain lands to railroad companies — an area the size of France. And not only did they not have to pay for it, they were given 10-mile strips of land on either side of the actual right-of-way, so that the railroads could use the rapidly appreciating speculative prices of real estate along a future train route as a source of revenue.
As for the enormous tracts of land kept in the public domain, the U.S. government gave preferential access rights to extractive industries like mining, oil, logging — and ranching. And the tracts of land were quite conveniently unencumbered by even sparse homesteading, which would have entailed having to buy out families a lot less favorably disposed than Uncle Sam.
The government supposedly auctions off leases to timberland, oil reserves, and the like via competitive bidding. But such auctions are always restricted to firms in the relevant industry. They don’t have to compete with anyone outside the club like, say, environmentalist groups who might want to hold old-growth forest out of use, and who might bid up the price higher. In one case where it turned out an extractive industry CEO was actually an activist who deliberately bid up the price so as to sabotage the good ol’ boy arrangement, the industry and Bureau of Land Management screamed for blood. So between oligopsony pricing (a market with just a few buyers, who can easily engage in collusion) and the political pull of extractive corporations, the leases are generally kept to sweetheart prices.
If this doesn’t yet sound quite loathsome enough, the government frequently subsidizes these favored industries by building access roads on public lands, at taxpayer expense, so the extractive industries can haul off the pillaged resources without having to spend any of their own money.
So Bundy really isn’t much of a candidate for knight in shining armor, either. Normally the federal government is the natural ally of extractive industries — including ranchers like Bundy — when it comes to exploiting Western lands. The fees that Bundy is charged with not paying were entirely nominal — just another example of those sweetheart prices for favored interests.
What would have been the rightful course of development, then? First of all, of course, the land would never have been conquered in the first place by either Spain, Mexico, or the United States. The sparsely populated lands out West would have been governed by the simple principle that the land belonged to whatever people were currently living on it and using it, and land not yet in use would belong to the first people to cultivate it. So the First Nations would continue to enjoy their traditional hunting grounds and agricultural land, and settlers would be free to make use of land not in use, without paying tribute to government or corporate overlords of any kind.
Extractive industries could exploit only lands not currently in use, or acquire land from those already using it if they were willing to leave it and found the payment acceptable. And any activity by extractive industries that poisoned surrounding air or groundwater, or interfered with the preexisting uses of their neighbors’ land, would be subject to full tort liability without any caps or regulatory exemptions conferred by the state.
As Media Director Tom Knapp at the Center for a Stateless Society commented, the low carrying capacity of land like that Bundy’s cattle graze makes it ideal for some sort of commons-based management (of the kind Elinor Ostrom wrote about for most of her career) by an association of neighboring ranchers. Of course well-managed common pastures had effectively enforced rules restricting the total pasturage rights apportioned to the sustainable carrying capacity of the land — the kind of rules that self-styled “Sagebrush Rebels” like Bundy would probably object to even if they came from fellow ranchers rather than the government. And it’s equally plausible that areas of Nevada would be nature preserves managed as commons by conservationists…. The rival property claims of homesteaders, First Nations, and managed commons of all kinds would be a matter for horizontal negotiation based on the agreed-upon civil-law principles of free local juries, not administrative fiat or political pull.
So what we see on the Bundy ranch is really just a fight between bad guys: a corrupt state in league with corrupt economic interests, versus a rogue member of those same corrupt economic interests.
This article was originally published in the July 2014 edition of Future of Freedom.