Cruzing to Malheur

Steve Russell

Cruising to misfortune with another unqualified Texan fanatic at the wheel: Did this country learn nothing from George W. Bush? Ted Cruz’s willingness to say anything to get elected has spawned an ad aimed at Nevada that ought to alarm the country if the country could decode it.

Nevadans will be able to hear most of the dog whistles, so the ad works fine in context.

If Indians attend to what this man is saying, they will see what little they have left at the mercy of persons with no pretense of treaty obligations or awareness of the double-dealing that brought us to this pass. The smallholders to whom Cruz is pitching the demise of the federal commons would also be worse off.

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I speak of the smallholders personified by—if not represented by—Nevada rancher Cliven Bundy. The same Cliven Bundy who is a hero in the circles Cruz is courting for deadbeating the taxpayers out of a million dollars in grazing fees over 20 years. The same Cliven Bundy whose sons, Ammon and Ryan, led the recent armed takeover and siege at the Malheur National Wildlife Refuge, formerly known as the Malheur Indian Reservation.

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The basis for armed intervention in the matter of Cliven Bundy’s grazing fees or the armed seizure of a wildlife refuge is the theory of the Second Amendment that the purpose of it is to enable U.S. citizens to kill other U.S. citizens who work for the government. What they want, or claim to want, is for the federal government to waive all claims to public lands within the borders of states. Their claim that federal titles were bogus in the first place—and not one of them has thought of this—would leave the land in tribal hands rather than state hands.

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Rafael “Ted” Cruz has gone up in Nevada with a video endorsing the Bundy struggle without naming Bundy but adopting Bundy’s framing that public land within states is state land rather than federal land. Cruz, unlike Bundy, must be taken seriously by the reality-based world because he is a first tier candidate for the Republican presidential nomination, along with Marco Rubio and Donald Trump.

Cruz came to the U.S. young enough that remarks about Canadian land titles are not appropriate, but he lives in and purportedly represents Texas. The significance of the Cruz home base is that Texas is the only state where the Bundy theory of land titles is in operation, because Texas was a republic before it was a state.

Texas used to be a lot more land than it is today, and the terms of admission as a state were that Texas gave up half of what is now New Mexico and large swaths of what are now Oklahoma and Colorado. In return, the U.S. assumed the debts of the Republic of Texas and the state of Texas retained title to all public lands.

The Texas founders had an attack of good sense and put the public land in trust for the children of Texas to fund public education and “a university of the first class.” I have directly benefited from that decision by acquiring two degrees from the University of Texas heavily subsidized by income from Texas lands.

Texas was just as corrupt as other states, though, and I got my bargain on a university education because a monumental land swindle failed. At the time of statehood, Texas had a plantation economy dependent on slavery in the east and a ranching economy with more cattle than human beings in the west. The money was where Texas was green.

The swindle involved trading fertile East Texas land in trust for children for a greater acreage in West Texas. Of course, the land taken in trade had no reliable water supply and a lot of rocky soil not even suitable for running cattle. Land that was, in a word, worthless, no matter how much of it there was.

That “worthless” land in West Texas turned out to be the Permian Basin and those rocks in the soil hid one of the richest oil strikes in U.S. history, a strike that continues to produce to this day. The failure of the land swindle was a cosmic joke on the swindlers, but such things are common in the states because it’s cheaper to buy politicians on the state level than on the federal level.

Fletcher v. Peck, a case that hit the U.S. Supreme Court in 1810, upheld land sales by the state of Georgia in spite of proof that the sale was accomplished by direct payoffs to legislators. Not campaign contributions—bribes. So the question for Sen. Cruz and the voters standing behind his opportunistic embrace of Bundy is what happens to all this state land suddenly put under the authority of state legislatures?

In Texas, all the federal land that exists was bought, from the artillery range at Ft. Hood to the urban plots that host federal courthouses. All indigenous Texans have been run off by force, leaving three tiny tribes, only one of which goes directly back to the source of Texas land titles, Spanish royal grants. That would be the Ysleta del Sur Pueblo in what used to be the settlement of El Paso del Norte and is now El Paso on the U.S. side and Ciudad Juárez on the Mexican side.

All statutes that are tied to federal land are pretty much of no account in Texas. For Indians, the prime example is NAGPRA. Add up all the federal land and all the tribal land in the state and you have under five percent of the land area, so the impact of NAGPRA is limited to projects with federal funding and the criminal provisions regarding selling human body parts, provisions routinely ignored among “hobbyists.”

Isn’t this good for smallholders like the Bundys? Not in the real world.

When the land is federal, smallholders can rent a piece of the commons to raise much more livestock than they could on the land they own, ever since the Taylor Grazing Act of 1934. Federal grazing fees are nominal, and Cliven Bundy took years and a lot of cattle to run up his tab.

When the land is owned by the state, it quickly passes into private hands by legitimate or illegitimate means, and Fletcher v. Peck teaches that illegitimate means will not bring back public lands.

If Bundy has trouble dealing with the feds, try dealing with the King Ranch, 825,000 acres spread over six counties. Or the lands controlled by the family of the former governor of Texas, Dolph Briscoe, 640,000 acres spread over nine counties.

Down the list of big landowners considerably, there are the ranches owned by the Republican candidate for governor who lost a sure thing with his fondness for rape jokes and his public insults to Gov. Ann Richards. Clayton Williams illustrates a big problem that was the focus of the attempted swindle of Texas schoolchildren and is critical to the smallholders running livestock in the arid Southwest: water rights.

Texas follows the “capture rule,” meaning that if you have the longest pipe and you own the land over the aquifer, you can pump that sucker dry without regard for your neighbors.

Ft. Stockton, Texas, grew up around Comanche Springs, a cold and clear and abundant water source on the Eastern edge of the Chihuahuan Desert. Comanche Springs, which supported a creek running through a park in Ft. Stockton, went dry many years ago.

There came a time when the price of beef went south, and Clayton Williams drastically reduced the size of his cattle herd. Lo and behold, Comanche Springs came back to life and flowed until the price of beef once more made it a paying proposition to drain the aquifer.

With land and water formerly part of the commons passing to whomever can buy enough state politicians to make it so, the way may be open for the Church of Latter Day Saints to revive their dream, the State of Deseret, but smallholders will be out of luck and out of water and out of grass in short order.

You think those Texas spreads are large? The Mormon Church owns 2 percent of all the land in Florida and 235,000 acres in Utah and that’s not all. The Koch family has quarter million acres of Montana and good old Ted “save the buffalo” Turner owns two million acres.

Once federal land passes into state hands, you can bank on it being privatized. Wildlife refuges and the species they were established to protect, gone. Fast food concessions and entrance fees around all the national parks. National forests, gone. National seashores, gone. The only hope will be in what the crooks in Texas thought of the Permian Basin, if particular land appears to be worthless.

It’s tempting to pick on the “patriots” behind the deadbeat rancher Cliven Bundy because they are constitutionally illiterate, or because they left a trench of human feces in addition to the firearms and explosives left over from the Malheur occupation.

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But there is something perverse about ridiculing a mob of miseducated guntoters for being litterbugs when they are talking about, in the end, privatizing the commons at a fraction of what it is worth. That assumes you could put a fair price on all the beauty and wildlife habitat. Not everything has a price.

The misfortunes we are cruising toward by supporting the dirty tricks and demagoguery of Ted Cruz include privatized VA health care, privatized Social Security, and a full retreat from any federal attempts to keep air and water clean. Even those outcomes would look small in the sweep of history next to privatizing federal lands and turning them over to the highest bidder.

There won’t be very many family farmers in that auction unless their names happen to match those already on the largest ranches in the U.S. or the political families who take a cut as a price of setting up the deal. Malheur. Misfortune, indeed.

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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