But it's hard to find the basis for these claims, especially since the 1998 ruling against Bundy is not posted online (or not publicly available). However, the cited basis for the decision in US v. Bundy (1998) is online (US v. Gardner), and the arguments in that case are pretty much identical to the right-wing talking points circulating today.
So let's learn about them, shall we?
The 2013 order by Judge Lloyd D. George (starting on p.6) is a summary judgement against Bundy in his last ditch effort to stop the operation that culminated this week. It briefly touches on the arguments Bundy made in his 1998 case (see p.8, lines 7-22), but cites US v. Gardner (1997).
By taking both the points in the 2013 order and US v. Gardner, we can see what Bundy is trying to assert, where the right-wing talking points come from, and the legal basis for laughing those talking points out of the room.
The first Bundy argument
From the 2013 order:
"Bundy principally opposes the United States’ motion for summary judgment on theAs US v. Gardner states (and the 2013 order reiterates), the US was ceded the land in question by Mexico in 1848 under the Treaty of Guadalupe Hidalgo. The treaty recognized existing grantees of land, however, nobody owned the land in question at the time (and the Bundys didn't arrive in Nevada until 1877).
ground that this court lacks jurisdiction because the United States does not own the public
lands in question."
Here's the text from US v. Gardner:
The United States and Mexico signed the treaty of Guadalupe Hidalgo in 1848. In that treaty, Mexico ceded land that includes the present-day state of Nevada to the United States; see also Sparrow v. Strong, 70 U.S. (1865) ("The Territory, of which Nevada is a part, was acquired by Treaty."). The language of the Treaty itself refers to the land ceded by Mexico to the United States as "territories previously belonging to Mexico, and which remain for the future within the limits of the United States." (1848). Courts in the United States have uniformly found that title to the land first passed to the United States through the Treaty.So much for the argument that the federal government doesn't own the land.
The second Bundy argument
Bundy also argues that the federal government gave all public lands to the State of Nevada when it was created in 1864 because the US federal government can only hold land in trust for the future creation of states (implying that all federal land would have to belong to a state eventually). Again, US v. Gardner:
The Court stated that the United States held this land in trust for the establishment of future states. Once those new states were established, the United States' authority over the land would cease. This decision was based on the terms of the cessions of the land from Virginia and Georgia to the United States. Before becoming a state, however, Nevada had no independent claim to sovereignty, unlike the original thirteen states. Therefore, the same reasoning is not applicable to this case, in which the federal government was the initial owner of the land from which the state of Nevada was later carved.To confirm further that the federal government did indeed retain ownership of the lands, US v. Gardner notes the Nevada Constitution, which states that:
Third. That the people inhabiting said territory do agree and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United StatesThe third Bundy argument
Bundy claims that this clause of the Nevada Constitution doesn't apply because of the Equal Footing Doctrine which supporters say means that the federal government can't own part of Nevada because it would put the state on unequal footing with future states.
US v. Gardner, again:
However, the Supreme Court has declined to extend the Equal Footing Doctrine to lands other than those underneath navigable waters or waters affected by the ebb and flow of the tides. In Scott v. Lattig, the Supreme Court held that title to an island within a stream did not pass to the state of Idaho, but instead was retained by the United States. The Court stated that because the island "was not part of the bed of the stream or land under the water ... its ownership did not pass to the State or come within the disposing influence of its laws." The Court went on to note that the island was "fast dry land, and therefore remained the property of the United States and subject to disposal under its laws...." Id. Sixty years later, the Supreme Court characterized its decision in Scott as holding that the rule in Pollard's Lessee "does not reach islands or fast lands located within such waters. Title to islands remains in the United States, unless expressly granted along with the stream bed or otherwise." Texas v. Louisiana (1973). The Equal Footing Doctrine, then, does not operate to reserve title to fast dry lands to individual states.So much for that argument. Equal Footing applies to shores and navigable water, and equality in dignity and power. US v. Gardner also points out that the federal government retained ownership of land in many other newly-created states.
Moreover, Supreme Court has long held that the Equal Footing Doctrine refers to "those attributes essential to [a state's] equality in dignity and power with other States..."
The Fourth Bundy argument
From the 2013 order:
"that the Property Clause of the United States Constitution applies only to federal landsUS v. Gardner, again, makes it clear that no, the Property Clause covers all..you know...federal property:
outside the borders of states"
As aforementioned, Congress' power under the Property Clause to administer its own property is virtually unlimited. See, e.g., Kleppe,. Indeed, the United States retains title to the public lands within states such as Nevada not due to "any agreement or compact with the proposed new State," but rather "solely because the power of Congress extend[s] to the subject." Coyle, 221 U.S. at 574, 31 S.Ct. at 693.The fifth Bundy argument
Bundy also claims that BLM is basing its authority to sanction him on the Endangered Species Act (which has no authority for the type of sanctions they were seeking); clearly, given that he has admitted to trespass, no further argument is needed.
The sixth Bundy argument
Bundy also claims that Nevada law allows him to use the land.
"...thatFrom the 2013 order, smacking this down:
Nevada’s “Open Range” statute excuses Bundy’s trespass."
under Supremacy Clause state statute in conflict with federal law requiring permit to graze------------------------------
would be trumped
That covers the arguments in the 2013 order, and touches on most of the arguments in 1997's US v. Gardner (again, link here.
If you feel like arguing with a non-sensical, Hannity-watching, Infowars loving right wing nutjob who is being used and misled by those interested in inciting them to violence, have at it!
I could use the help...