Friday, April 25, 2014

#BundyRanch: This Land is Whose Land? The Hoppean Case for Cliven Bundy

By Dan Sanchez

Cliven Bundy claims he has the right to continue grazing his cattle in so-called “Federal” land without paying the Bureau of Land Management to do so, and without complying with Federal rules concerning how he does so. Is his claim just, from a
libertarian perspective?
All libertarians want all Federal land to be desocialized. But how? Should ownership, or at least an easement, go to Bundy in this case? Or should the land be auctioned off by the Feds, as some libertarians have claimed?
Hans-Hermann Hoppe dealt with this question with the following analysis:
An elementary yet fundamental moral observation must precede the answer to this question. Since socialism cannot arise without the expropriation of assets originally “created” and owned by individual homesteaders, producers, and/or contractors, all socialist property, ill-begotten from the very start, should be forfeited. No government, even if freely elected, can be considered the owner of any socialist property, for a criminal’s heir, even if himself innocent, does not become the legitimate owner of illegitimately acquired assets.
This makes it clear why “Federal” land, including the grazing land in Nevada, should not be auctioned off. The Federal government either confiscated that land from rightful owners, or laid claim to it while it was in an unowned state. In cases where it did the latter, such claims are illegitimate. The government did not work the land. It only used force to deprive individuals of their right to work the land, and to thereby homestead it.
The Federal government’s “property” in Nevada is “ill-begotten from the very start” and “should be forfeited.” Sale (whether via auction or otherwise) is not forfeiture. Sale presumes ownership.
Hoppe continues:
…all of [a criminal’s heir’s] “inherited” gains must immediately revert to the original victims, and their repossession of socialist property must take place without their being required to pay anything. In fact, to charge a victimized population a price for the reacquisition of what was originally its own would itself be a crime and would forever take away any innocence that a government previously might have had.
More specifically, all original property titles should be recognized immediately, regardless of who presently owns them. Insofar as the claims of original private owners or their heirs clash with those of the current assets’ users, the former should override the latter. Only if a current user can prove that an original owner-heir’s claim is illegitimate that the title to the property in question had initially been acquired by coercive or fraudulent means—should a user’s claim prevail and should he be recognized as the legitimate owner.
Thus, any Nevada land criminally taken by the Federal government from American Indians should revert to any identifiable, individual heirs of any identifiable, individual Indian victims. If such an heir should come forward, his claim to such land should be considered superior to anyone else’s, whether that of a current user, like Bundy, or of the Federal government.
Unfortunately, such heirs can not always be identified, or may not always come forward to assert their claims. Hoppe explains the best approach for dealing with such frequent situations:
Regarding socialist property that is not reclaimed in this way, syndicalist ideas should be implemented; that is, the ownership of assets should immediately be transferred to those who use them — the farmland to the farmers, the factories to the workers, the streets to the street workers or the residents, the schools to the teachers, the bureaus to the bureaucrats, and so on. To break up the mostly over-sized socialist production conglomerates, the syndicalist principle should be applied to those production units in which a given individual’s work is actually performed, i.e., to individual office buildings, schools, streets or blocks of streets, factories and farms. Unlike syndicalism, yet of the utmost importance, the property shares thus acquired should be freely trade-able and a stock market established so as to allow a separation of the functions of owner-capitalists and non-owning employees, and the smooth and continuous transfer of assets from less into more value-productive hands.
Hoppe footnotes this passage with an important clarification:
The reference to “syndicalist ideas” here is not to be interpreted as an endorsement of the program of syndicalism. (…) Quite to the contrary, the syndicalist slogan “the railways to the railway men, the mines to the miners, the factories to the factory hands” was originally meant to be a program of the expropriation of the private owners of capitalist enterprises. (…)
The use of syndicalist ideas here is proposed to the very opposite effect, i.e., as a means of privatizing previously socialized factors of production in such cases where no identifiable original (expropriated) private owner of these factors exists. Furthermore, the ethical rationale for the application of the syndicalist slogan in those — and only those — cases lies in the fact that such a privatization scheme approximates most closely the method described by John Locke of the first (original) just appropriation of previously unowned resources. The railwaymen have in fact “mixed their labor” with the railroads, and the miners with the mines. Hence, their claim to these resources must be deemed better founded than anyone else’s.
This gets at the crux of the issue with Bundy. Bundy and his employees have expended labor on using the Nevada grazing land in question productively. Moreover, he has been the only user of the land willing to risk his neck in asserting his right to continue to do so. He has come closer to legitimately homesteading the land (or at least homesteading an easement on the land) than anyone else contending for its use.
Many libertarians have expressed ambivalence regarding Bundy’s dispute with the Feds. But in a tug of war between two parties over scarce resources, there is no room for ambivalence. Either one party has a better claim or the other.
Bundy has a better claim than the Federal government, and that is all that matters in this question. The bureaucrats who staff the state and did nothing to work the land productively, have a far weaker claim, and should in no way benefit from the proceeds of auctioning the land.
Does some third party have a better claim than both Bundy and the Feds? Until such a third party comes forward and presses his claim, that question has no bearing on the dispute at hand.
Did Bundy himself previously benefit from a privileged relationship with the Federal government? That, again, is beside the point. The question remains: who, between the two parties actually pressing opposing claims, has the better claim? Whether you sympathize with the party with the better claim is irrelevant.
If Bundy has victimized any individuals by pushing for legislation that violated their rights and that benefited him, and if such victims were to press for restitution, then Bundy should provide such restitution, even if to do so, he had to sell his land or easement. But, again, that doesn’t change the fact that his claim is superior to the Federal government’s.
Some argue that the land should go to someone who can afford to buy the land in auction (likely not Bundy, they suppose), because such a buyer will have the capital to maintain it without government help. Again, that is irrelevant.
For one thing, the money spent buying the land does not go toward maintaining it; it just fills the government coffers, later to be spent on throwing Americans into cages, and blowing non-Americans to pieces. Being able to buy the land/easement from the government does not indicate an ability to maintain the land/easement. The buyer may just re-sell it to someone who does have such an ability, and probably at a windfall profit, given that government auctions are usually rigged, and government sales in general are usually sweetheart deals.
If Bundy himself cannot afford to maintain his land/easement without government help, then he (not the government) can and should sell it to someone who can. That, and not some government auction, is what would establish the true market value of the land.
Most remarkable is the claim made by some libertarians that Bundy implicitly recognized the Federal government’s right to charge management fees by paying them for years until recently. Did all the libertarians who paid income taxes yesterday thereby implicitly recognize the Federal government’s right to impose those taxes?
And Bundy is willing to pay the State of Nevada instead of the Feds for grazing rights. Does that erode his moral standing? Of course not. To use land he should have a right to use outright, he is simply willing to submit to a less demanding extortionist to get off the hook with a more demanding extortionist.
Now whether Bundy has a superior claim to the use of the land is separate from the question of whether it is wise for him to use force to assert his superior claim in opposition to the government, and whether such an assertion will indirectly hurt the cause of justice and liberty, thanks the criminal response of the Feds. But it is clear that, regarding the narrow issue of use rights over the land in question, justice favors Bundy against the State, and so should libertarians.

The above originally appeared at


  1. The govt owns the property under powers given to Congress in Art I Sec 3. If you have a problem, it's with the US Constitution. If you respect the US Constitution as Bundy claims he does, then you have no problem with federal ownership of this land.

    It's worth pointing out that this was the clause the Supreme Court ignored in the Dred Scot decision.

    Art I Section 3 - New States
    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; and nothing in
    this Constitution shall be so construed as to Prejudice any Claims of the United States, or
    of any particular State.

    1. Who is funding you, Jerry Wolfgang? Serious question. I've never seen anyone spend so much time with those in disagreement for free. Your blood pressure must be through the roof.

    2. Many of us do have a problem with it. Not everyone believes that a piece of paper gives people coercive power over you against your consent.

    3. @ Jerry. Do you even read these articles? This article is about whether Bundy's claim is "just," under libertarian theory, not an analysis of his actual legal claims under the Constitution and statutes.

      In addition, who shows less respect for the Constitution than the US government, with its undeclared wars in direct violation of the Constitution's grant to Congress of the sole power to declare war.

      Finally, the enabling acts of Congress that implement the Art I Sec 3 you cite often contain conditions and limitations that the Federal government is not respecting. For example, Section 7 of the 1894 Enabling Act of Utah states that Utah is entitled to "five per centum of the proceeds of the sales of public lands lying within said State, which SHALL be sold by the United States." The understanding was that the US would initially take over Utah's public lands but would make regular sales of those lands. However, I read that the US quit selling such lands, in violation of the Enabling Act, with the Federal Land Policy and Management Act of 1976. Utah is justifiably upset about this and has filed suit.

      In short, if you want to talk about respecting US laws and Constitution, first take a good hard look at the Federal government that you worship so blindly.

  2. This article sums up the problem. Thanks!!!

  3. Have you guys read Kevin Carson's article on the subject? It's worth a read: