Oregon Militia Shootout: Blue-Tarp Man Is Dead

Steve Russell

The Bundy Militia finally got the gunplay they demanded and I’m sorry. When the Bureau of Land Management decided a couple of years ago that nobody on either side should die over Nevada rancher Cliven Bundy deadbeating the government out of 20 years of grazing fees in Nevada, I agreed with the feds.

“Dude, you’re a judge. How can you be opposed to enforcing the law?”

I’m not opposed to enforcing the law. I’m opposed to bloodshed over a debt and the law provides plenty of ways to enforce a debt.

I’m used to getting accused of hypocrisy and all the emotions of feeling perfectly logical while the world is crazy surfaced this morning when I learned that somebody finally died in the Oregon militia standoff.

I had to run for election to be a judge in Texas and I never had a contested election where my arrest record and therefore my connections to the civil rights movement did not come up. I got used to dealing with the claim that there is hypocrisy in juxtaposing civil disobedience with a judicial career.

The law firm I worked for sent two lawyers to the Wounded Knee defense in the mid-seventies. I got criticism from one set of voters who thought the American Indian Movement was so wrong that anybody who would work the defense side for no money had to be a terrible person. On the other side, an AIMster told me once “the biggest risk you took at the Knee was a paper cut.”

I was not then and am not now a big fan of the feds. Few Indians are. But most Indians agree when pushed that we are better off that the Constitution commands the federal government to deal with us to the exclusion of state and local governments.

In the Oregon situation, though, the state authorities and the Paiute tribal authorities are on the same side as the feds anyway. My own support for the idea of civil disobedience does not put me with the militia. When you do civil disobedience, you accept the consequences of your act. You don’t threaten to inflict casualties on law enforcement officers doing their jobs.

So far, the only casualty is Robert LaVoy Finicum, 55, called among Bundy watchers Blue Tarp Man for his preferred method of keeping warm while waiting for the violent showdown. The Finicum feed on Twitter was #TarpMan. Rolling Stone referred to Finicum as “a cowboy legal scholar” who was “disturbingly at ease with dying out at the (Malheur) Refuge.”

Finicum claimed to be such a follower of Cliven Bundy that he had torn up his grazing contract with the federal government. The East Oregonian—published in Pendleton and serving the Umatilla County area---pointed out that many environmentalists are against the very existence of commercial cattle grazing on public lands. Tearing up a grazing contract would mean not getting another one.

The head deadbeat, Cliven Bundy, has urged ranchers with grazing contracts to tear them up. Only Adrian Sewell of Grant County, New Mexico, has so far taken that action in public. He destroyed his grazing contract at a rally in Oregon last Saturday.

Bundy and sons Ammon and Ryan advocate a deadbeat movement somewhat like the draft card burnings in protest of the Vietnam War in the sixties. While the destruction of draft cards and grazing contracts are both acts of civil disobedience, the draft card represented no benefit to the holder. A grazing contract does. It signifies a privilege to graze livestock on the commons, land that does not belong to you but rather to everybody.

Another anti-war act of disobedience comes to mind, war tax resistance. The U.S. government enacted an excise tax on telephone services back in 1898 to pay for the Spanish-American War. That was back in the quaint times before George W. Bush taught us that wars do not have to be paid for.

The communications companies did not like the tax but getting rid of it was a heavy lift. It remained in effect during the Vietnam War and activists discovered that if you gave the phone company written notice you would not pay the war tax, sometimes they would take it off your bill. At least, they would not cut off your phone service for failing to pay the war tax.

My wife and I quit paying the war tax, starting a sparring match with the Internal Revenue Service that went on for years. We got a long respite when the Post Office inadvertently put a document in our mail box meant for the Postal Service for the purpose of locating us and we returned the form to the IRS marked “deceased.”

The next year, after threatening criminal prosecution and being told to go for it, the IRS garnished my wife’s entire paycheck. I was working only part time at several gigs for which I got a 1099 at the end of the year and there was no withholding, but her pay check was low hanging fruit.

The sum we owed Sam was less than $100, but they took her entire check and would not release it unless we paid. Having no choice, she went to the bank and got enough pennies to cover the bill, less ten cents.

She went over to the IRS and saw the agent who had been chasing us for a couple of years and put a bag of pennies on his desk. Scowling, he started counting….and soon announced, “You’re ten cents short.”

At that point, she whipped out a recent cover of a news magazine that was about the My Lai Massacre and featured a headshot of Lt. William Calley, who had been indicted for the murder of Vietnamese civilians. She had taped a shiny dime over Calley’s hat brass.

Sam spent more money collecting from us than what we paid and we got a great story to tell. The original point of the telephone war tax was to make the wealthy pay for the Spanish-American War, since only wealthy people had phones in 1898. The tax never did get repealed but rather declared unconstitutional by the courts after changing billing methods had the tax applying to services outside of interstate commerce. Collection ceased in 2006 after 108 years.

This story does not dispose of the deadbeat ranchers problem. The IRS has means to collect taxes that the federal government does not have in a mere breach of contract case.

If the deadbeat ranchers burn their contracts, they will have nothing to breach. Cattle found on public land are strays, and can be rounded up and sold for the cost of round up and feeding. The problem is that the militia “patriots” promise to shoot the cowboys hired to do the roundup, which is a bit more professional hazard than most contract cowboys are willing to take on.

The Bundy Militia calls stealing at gunpoint patriotism. The law calls it armed robbery.

Worse, the occupiers of the Malheur Wildlife Refuge are talking about opening it to “free” cattle grazing after winter is over. Rather than just occupying the commons or taking more than their share, they threaten to destroy it. Or, of course, we the people could credit their claim that they know more about caretaking the land than the feds or the Paiutes and are willing to do the work for free.

Speaking as one who “believes in” science, it seems to me if the species we set aside habitat for could co-exist with cows, there would be no need to set aside habitat. To put a finer point on it, the occupiers are threatening damage that may not be reversible.

In addition, the Burns Paiute tribe has raised concerns about artifact collections as much as 10,000 years old and the disruption of sacred sites that have in the past been protected by understanding with the U.S. Fish and Wildlife Service, which manages Malheur.

The Christian Science Monitor reported that Paiute artifacts are “hostages” in the showdown between the occupiers and the federal government. Paiute Tribal Council Chair Charlotte Rodrique told the Associated Press, “Our history is just another hostage.”

On the state political front, Oregon authorities from Gov. Kate Brown on down have been demanding that the feds act. Like the Nevada standoff with the Bundy militia, the Oregon standoff has been costing state authorities a lot of money. Most violations of federal law are also violations of state law and double jeopardy does not apply in the “dual sovereigns” situation.

When law enforcement finally acted to take the leaders into custody, it was a joint operation between the FBI and the Oregon State Police.

At this writing, some occupiers are still holed up in the Malheur Wildlife Refuge. They had been allowed to pass in and out of Malheur at will, and the leadership was taken into custody while on their way to a political meeting in John Day, Oregon.

Blue Tarp Man is dead and an unidentified person is being treated for injuries said to be not life threatening. Seven of the occupiers’ leadership are in custody, but the standoff remains a standoff. Presumably, the free entrance and exit is no longer going to be allowed, so the occupiers will have some decisions to make when it gets hungry in there.

I remain hopeful no frontal assault will be necessary, although it would be a tough call if the occupiers begin to destroy the Paiute artifacts they have held hostage. If they had done no harm to endangered species or the Paiute historical heritage, then letting them stay until they got tired might have been appropriate.

Let them stay how long, you ask?

The Washington Post reported that Concepcion Picciotto died January 25 after keeping an anti-atomic weapons vigil in Washington, D.C.’s Lafayette Park since June 3, 1981. Picciotto was thought to be about 80 years old.

Rule of law has value, but it’s a value that does not require bloodshed over Cliven Bundy’s debts or that military force be deployed against an elderly woman occupying a public park but otherwise doing no harm.

Call me a hypocrite if you wish, but I still say that if the law has no tolerance for dissent and no sense of proportion, then the law is an ass.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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Michael Madrid's picture
Nothing pisses me off more than a Conservative, White man saying that his country has been taken from him. If the Bundy's weren't such overt racists this would all be a joke. I can't help but think how this occupation might have differed had it been Natives who were holding an area hostage that was full of artifacts revered by Whites.
Michael Madrid
mem's picture
...there is a very clear hypocrisy alright. If those men were Indian or black, armed to the hilt and demanding land - it would never have gone this far or been dragged out for this length of time. The locals would have rushed in killed anything that moved and been done with it.
Ojibway Turtle Mountains's picture
Dear Mr. Russell, In this most unfortunate case I must say that you are completely right. Civil disobedience without harm should be tolerated to some degree, even for years (Waco Texas maybe one). But in the case of Paiute land and artifacts and the harm that could be done is not one of them. I would advocate starving them out, thirst and hunger have a way of clearing the mind that always works after enough a time. Morgan Bloomer (Poitra)
Ojibway Turtle ...
JackEllis's picture
Steve, two other bits of relevant information. First, this analysis from the Atlantic that in part suggests Cliven Bundy has been spinning fairy tales about his history and his "rights" to use public lands: http://www.theatlantic.com/politics/archive/2014/04/the-irony-of-cliven-bundys-unconstitutional-stand/360587/ and in part debunks the central thesis of his war on the feds. I don't suppose conspiracy against a state government can be construed as treason, but organizing a conspiracy against the Feds does seem to cross the line. Second, it seems some of the occupiers have criminal records that include felonies: http://www.theguardian.com/us-news/2016/jan/29/oregon-militia-standoff-leaders-prison-time-malheur-national-wildlife-refuge The almost certainly will find themselves doing hard time for illegal firearms possession. I have no way to independently verify some of the facts or claims, depending on your viewpoint, that appear in these stories. Both publications arguably have a bit of a liberal bent (the Guardian probably more so than the Atlantic). but I'd be surprised if there were gross inaccuracies or misrepresentations.