THE BLOG
04/30/2014 07:46 pm ET Updated Jun 30, 2014

The Right and American History

Conservatives are running from Cliven Bundy because of his views on race. This should be commended, given that these are ridiculous.

What happened was really quite simple. In an age when the number of sources that practice serious journalism is in sharp decline, a few persevere. Thus, when Bundy held one of his regular press conferences, only one reporter actually showed up to cover the event. He was from the New York Times, and did due diligence, practicing his craft where no one else did.

That afternoon, Bundy provided his views on a number of subjects, including race. He explained how African-Americans were hurt by the federal government's largesse, how they were "better off as slaves, picking cotton and having a family life."

Later, on The Peter Schiff Show, he expanded on this, asking:

Are they happier now under this system than they were when they were slaves, when they were able to have their family structure together, and their chickens and a garden, and the people had something to do?

Republicans leapt forward to denounce Bundy. Rand Paul issued a statement, "His remarks on race are offensive and I wholeheartedly disagree with him." Reince Priebus, RNC Chair, declared, "Bundy's comments are completely beyond the pale. Both highly offensive and 100 percent wrong on race."

Great news, and to be applauded. The problem is what happened before Bundy was revealed as a racist.

That story began quite a while ago. Bundy was grazing his cattle on federal land and was supposed to pay a modest fee -- $1.35 a head -- for that accommodation. This is -- you'll pardon the mixed metaphor -- chicken feed. Debra Donahue, professor of law at the University of Wyoming and an expert in public land use, told the Times' Gail Collins, the fee "doesn't come close to covering what it's worth, or what it would cost if they were grazing on private or state lands. It doesn't even cover the administration costs."

Bundy had been availing himself of this largesse for 20 years, but refused to pay what he owed to the government, fees which thousands of other ranchers have been paying for decades and more. Bundy, in essence, for those of us who don't graze cattle, was refusing to pay back taxes. Something we usually go to jail for. In response to his owing $1 million in back fees, federal officers confiscated hundreds of his animals.

Bundy was outraged. He argued that the federal government had no claims of any sort, that private property and state's rights ruled the day: "I believe this is a sovereign state of Nevada," Bundy explained. "And I abide by all Nevada state laws. But I don't recognize the United States government as even existing."

In response to the national government's actions, legions of Bundy's supporters rallied, armed with side arms and long guns, mostly AR-15s, prepared to resist with armed force, to shoot federal officers en masse, if necessary. Ammon Bundy, Cliven's son, told a Las Vegas newspaper, "The war has just begun."

At this point, the Right lined up to support Bundy and denounce Obama's government. Rand Paul, while opposing violence, opined that he "would like to see the land owned by individuals, either privately or, at the very most, the state government, but not the federal government." Sean Hannity invited Bundy to his show twice. The Drudge Report argued a conspiracy theory that Nevada's Harry Reid wanted Bundy's land for a solar energy deal with a Chinese company. In Indianapolis, at the National Rifle Association's Annual Leadership Forum, Indiana's governor, Mike Spence, argued:

Despite what some may think in Washington, our state governments are not territorial outposts of the national government. The states are the wellspring of the American experiment... the next generation of leaders must permanently reduce the size and scope of the federal government by returning to the states the rights, resources, and responsibilities that are rightfully theirs!

Let's stop and analyze these claims, going from politics to constitutional law to the history of Western law use.

Of that first topic, just one small question: What would the reaction have been if a similar stand was taken by a well-armed group of Hispanics? Of African-Americans? This isn't a hypothetical. Look at the reaction to the Black Panthers, and google Fred Hampton.

On to the U.S. Constitution, which the Right claims to revere. Article IV, Section 3, Clause 2 gives Congress authority over national territory; it's full text: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States..." The Supreme Court has upheld that power as being "without limitation."

Finally, a bit of American history. Bundy and his supporters -- even United States senators -- claim that the federal government has no role in the disposition of Western land, and that Western American history is about the struggle of individuals to settle a wilderness frontier, with no intervention from the feds, only a later vote by settlers to accept local authority, the notion of statehood.

This is inaccurate. Many commentators claim the West was settled by the Homestead Act, which is partially true. In 1862 Congress passed, and on May 20 President Lincoln signed a bill that any citizen could obtain -- from the federal government -- up to 160 acres of federal land by meeting minimal conditions. After an initial filling (more on that in a minute), you had six months to make some kind of improvement, no matter how modest. You then had to live on the land, nothing more, for five years past the initial filing. Any time after that you could make final claim, and the federal government would cede the land over to you. The first homestead filed under this law was by a Union soldier, Daniel Freeman, near Beatrice, Nebraska. He was home on leave and had to return to his outfit, so the others let him go first.

This also upends some of the romanticism of the West. The first thing you did in a new area was establish a town, and the initial structure was a land office, a legal site where settlers could deal with the federal government and stake claims. Not a church. Not a saloon. Not a one-room schoolhouse. And not a state or territorial office either.

But this only tells part of the story. The authorities wanted to open the frontier to settlement, but felt the key was getting railroads to build into wilderness lands. As an incentive, they gave these businesses free land. Lots and lots of it. For every mile of track laid beyond a certain point, the railroad corporation received all the land for three miles out on both sides of the track. For the zone from three to 40 miles, they got every other section, in a checkerboard pattern. Furthermore, this was prime land, close to the rail line, in the same way that properties near a freeway exit today bring prime prices.

How much land was given away in this fashion? The federal government yielded up 131 million acres, the states another 49 million (yes, finally, the states did have a role here). Settlers then bought this land from the railroads. Land that originated in a federal grant.

In the settling of the West, the federal government was the most important institution, the biggest player. After that came large business entities. Then the states.

History contradicts the claims of Mr. Bundy, his supporters in the U.S. Senate and in the media. His armed supporters are potential felons. And ignorant of the history they purport to revere.