In jury after jury, few of the hundreds engaged in what has been dubbed the “Battle of Bunkerville” have been prosecuted in a historic confrontation between the federal government and residents over land in the West.
The confrontation at its peak had government snipers aimed at the unarmed Bundy family and friends of the Bundys coming from points as far away as New Hampshire and Florida.
A few Bundy supporters also had their rifles aimed at government snipers.
Had the government not backed down, it could have resulted in a nasty blood bath with many more throughout the West ready to aid the family.
Three trials took place this year. The first in April ended in a mistrial. Another in July had mostly acquittals.
And a third in November on accused ringleaders Cliven Bundy and his two sons Ammon and Ryan, and a co-defendant Ryan Payne, ending in another mistrial.
The most recent was complicated by the government’s withholding 3,000 pages of evidence critical to the defense.
To further complicate the issue, Ammon and Ryan Bundy had also been acquitted of federal conspiracy and weapons charges stemming from an armed, 41-day occupation of the Malheur National Wildlife Refuge in Oregon the year before.
Bundy arguments focus on three concerns: federal land within a sovereign state, the Constitution, and “jury nullification.”
Juries are made of citizens who have to wonder why the federal government owns 87.7 percent of Nevada leaving private ownership of the state at but 12.3 percent.
The percentage of land owned by government exceeds 50 percent in Alaska (98.5), Idaho (63.8), Oregon (52.6) and
States want their confiscated land returned, so as to be on equal footing with 19 sister states that actually own their land.
The federal government, under the Articles of Confederation, Northwest Ordinance of 1787, was to manage non-state lands until such lands met the qualifications of statehood, thereafter to be managed by the new state.
This process was retained under the new Constitution in Article IV, Section 3 and was to be modeled throughout the West.
In Article I, Section 8 of the new Constitution, the federal government was permitted to have but 10 square miles for a federal capital.
The only other land it could acquire had to be for military purposes as specified in the common defense clause of the Constitution, Article I, Section 8, Clause 17.
Any new acquisition, outside the capital, had to be purchased, have the consent of the state legislature where the land exists and be for military purposes.
None of these constitutional requirements were met with respect to any of the states cited above, although some military bases do exist in most of them.
By law, there should not be a Bureau of Land Management or even federal public land.
Jury nullification is the long-standing practice of ignoring the instructions of the judge when those instructions appear to be one-sided or to be against common sense.
Some may have read the Constitution and know of its clarity on land distribution. Some know that in the distribution of power between federal and state entities, federal judges almost always advocate the extension of federal power.
When Judge Gloria M. Navarro, who presided over the two mistrials, refused to allow issues running up to the standoff, or the constitutional arguments, especially defense and free speech issues, seemingly favoring the prosecution, she turned jurists off, hence jury nullification.
It did not help the federal case when none of the Bundys brandished an assault weapon, or themselves appeared threatening to federal officials, or had any history of violence.
— Harold Pease is a syndicated columnist and an expert on the U.S. Constitution, having taught history and political science more than 30 years at Taft College.