LIBERTY REEF (FCP) May 8, 2016 – So-called political liberals aren’t usually the sharpest tool in the shed, and despite their mantra of “tolerance” are often some of the most intellectually and emotionally intolerant public voices in modern social life.
In this context, during the Oregon, Malheur protest and occupation, back in January I came across a few social media postings with liberals condemning the protesters, and those expressing outrage and sympathy over the shooting death of LaVoy Finicum, with statements like, “Do you know what would happen if those guys had been black?” The implication being that somehow “white privilege” had already unjustly advantaged the protesters – most of whom are being held in federal prison, under severe conditions, for more than 100 days now, facing multiple federal felony charges.
Anyway. In doing some research, I recently came across a news story published by Joseph Rose and the Oregonian (Oregonlive.com), “Oregon standoff: Feds forcibly removed black occupiers from a wildlife refuge in 1979.”
Mr. Rose must have been responding to some of the same kinds of comments I mentioned above. His story caught my attention, but a few things in his report didn’t add up. So, intrigued I decided to look up the actual legal case and related legal history.
As it turns out, Mr. Rose was generally accurate about the similarities at hand, but he was significantly inaccurate on a great many details. For those who’d like to see how the federal government would treat black protesters in a fairly similar circumstance, here’s a quick summary.
In an uncanny parallel, the history of federal jurisprudence only appears to include one other protest “occupation” of a federal wildlife refuge, “providing habitat for migratory ducks and geese, wading birds, and resident species.” In re Timmons, 607 F.2d 120, 122 (5th Cir. 1979). In 1979 a passionate and civic minded leader, after failing to get a direct response from the government to his prior petitions for redress, organized a group of like-minded associates into the “People Organized for Equal Rights” who occupied and took possession of a federal wildlife refuge. Id., at 123. Like the present case, protestors in Timmons, “entered the wildlife refuge with the apparent intention of asserting […] claim to the land.” Id.
Approximately “twenty-five to forty individuals” began possession “without permits or authorization and informed the Project Leader of the Savannah National Wildlife Refuge Complex, Department of Interior, that they intended to remain indefinitely […] [and] said that they did not recognize the area as federal property.” Id. The leader of the occupation having previously tried to “address the government” went “upon the land to pray that God deliver him, that He help him gain the attention of his government.” Id. The occupiers also brought “several unauthorized off-road vehicles” and “something like forty automobiles” and “commenced bringing building materials, including concrete blocks, bags of mortar and ladders.” Id. at 123.
Rather than militarizing the situation, and rather than demonizing protesters as religious or political extremists, in Timmons, the federal government followed well-established and predictable legal precedent, by acting first through the courts. “The United States government then filed a complaint for ejectment, a civil action, against Edgar Timmons, Jr., a group known as People Organized for Equal Rights and other unknown individuals.” The court responded by entering an order “in connection with this complaint for ejectment” that required, inter alia, that the “defendants […] remove themselves and all of their personal belongings by 5:00 p. m. on May 1, 1979.” Id.
Surprisingly, like the Oregon case, four hold-outs remained at the refuge refusing to leave. But, in telling contrast, after the protesters failed to vacate the refuge,
[O]n the next day the U.S. Attorney, an Assistant U.S. Attorney and the U.S. Marshal came to the area to meet with [protesters] and discuss the order that had been entered. They encouraged the [protesters]to leave the area voluntarily and pursue their claims through normal judicial proceedings. The U.S. Attorney spoke personally with [the protesters] and explained that he had no desire to arrest anyone. He also attempted to convince them either to seek legal advice and file a civil action to quiet title to the wildlife refuge or to take their complaint to the Congress of the United States, rather than to violate the district court order.
Id. Following this visit, the defendants still failed to vacate. So, the federal court issued an order to show cause, “why they should not be held in criminal contempt for their failure to obey the April 30 order.” Id.
Trial on the order to show cause took place on May 4, 1979 and “[f]ollowing a two-hour trial” the defendants were convicted of criminal contempt and sentenced to “30 days” in jail. Id. Significantly, for this case, “the merits of the underlying action were not explored.” Id., at 124. Unlike here, the 1979 protestors did not respond by raising a constitutional challenge to the government’s federal land ownership claims. (“The jurisdiction of the court is unquestioned; no effort was made to seek judicial review before disobeying its order.” Id. at 125.)
And, the Fifth Circuit Court of Appeals expressly noted that the original TRO issued after the ejectment complaint, “might be challenged as a prior restraint on First Amendment liberties, although we may not go so far as to assume, even arguendo, that the alleged invalidity of the government’s acquisition of title to the land would support a refusal to obey the order.” Id. Finally, the Fifth Circuit also observed:
It may be that there is some valid basis to attack by legal process the government’s acquisition of the Timmons tract two generations ago. Counsel who prepared so able a brief are able adequately to mount a proper direct attack. But, until the government’s title is divested, the appellants must obey the process issued by the court system that not only protects the government’s property but also preserves the appellants’ life and liberty while mounting their protest and safeguards their access to a legal forum for their dispute. The marshal’s guns were not drawn against appellants, the militia was not called and those who chose to defy the court order were not injured. Even their confinement has been suspended pending this appeal.
Id., at 125-26.
So, no federal charges, no pretrial incarceration, no shooting deaths, no sensationalized media coverage, direct personal engagement, official empathy for the cause, and 30-days in local jail.
So, there you have it. That’s how the federal government handled black protestors in a similar circumstance, in 1979.