In jury after jury but 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 its citizens over western land.

A confrontation which at its peak had government snipers aimed at the unarmed Bundy family, and friends of the Bundy’s, coming from points as far away as New Hampshire and Florida, some few of these had their rifles aimed at the 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 were held in 2017, the first in April ended in a mistrial, another in July had mostly acquittals, and a third in November on 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, some showing the involvement of the FBI in the standoff at the ranch and others the disparity between government sources on the threat assessment, one showing the Bundy’s to be nonviolent.

To further complicate the issue Ammon and Ryan Bundy had also been acquitted of federal conspiracy and weapons charges stemming from an armed, 40-day occupation of the Malheur National Wildlife Refuge in Oregon the year before.

Why can’t the government get prosecutions? Bundy arguments brought focus to three concerns: federal land within a sovereign state, the Constitution, and what is known as Jury Nullification.

Juries are made of citizens who have to wonder why the federal government owns 87.7% of Nevada leaving private ownership of the state at but 12.3%. The percentage of land owned by government exceeds fifty percent in Alaska (98.5), Idaho (63.8), Oregon (52.6), and Utah (63.6). Basically the federal government did not give western states all their land when they qualified for statehood. States were so excited to get coveted statehood that they went along with the conditions despite the confiscation of, for most in the West, at least a third of their land. States want their confiscated land returned, so as to be on equal footing with 19 sister states that actually own their land.

The Revolutionary War doubled the size of the country. 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 that they could acquire had to be for military purposes as specified in the common defense clause of the Constitution, Article I, Section 8, Clause 17 which reads: “and to exercise like Authority over all places purchased by the Consent of the Legislature of the State in which the same shall be for the Erection of Forts, Magazines, Arsenals, dock Yards, and other needful Buildings.”

Any new acquisition, outside the capital, had (1) to be purchased, (2) have the consent of the State Legislature where the land exists, (3) 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. Nor have there been any additional amendments to the Constitution authorizing additional federal ownership of land as required for any additional federal power. Constitutionally there exists no federal land or 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, sometimes referred to as “lived experience.” When jurists, on their own, even when excluded from “approved” testimony, come to realize that Nevada only owns 12.3% of itself, they realize this is neither reasonable nor common sense. Some may have read the Constitution and know of its clarity on land distribution. Some few know that in the distribution of power between federal and state entities federal judges almost always advocate the extension of federal power—they are the strongest advocates for it—and thus tend to shape the decision by what they allow the juries to consider.

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, to have relevance in this case and was so dictatorial with respect to what jurors could use to base their decision, seemingly favoring the prosecution, she turned jurists off, hence jury nullification. It did not help the federal case when none of the Bundy’s brandished an assault weapon, or themselves appeared threatening to federal officials, or had any history of violence.

Both sides have until December 29 to make their cases for or against a new trial. If reconsideration is favored, Judge Navarro has set a new trial date for February 26, 2018. She is advised to let the issue stand as is, lest she risk yet a fourth jury nullification.

Harold Pease

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