The federal government owns and manages a considerable portion of the land throughout the West, notes Michael Wara, an associate professor at Stanford Law School.  "The protesters might argue that the federal government has the power to own land within states just like any other private land owner, but that the Congress does not have the power to make laws that supersede state and local laws governing how the land is used. Federal grazing rules on Bureau of Land Management lands do this — sort of," Wara said.

Sandhill cranes are seen at Malheur Refuge

At the root of the issue is how to interpret the Constitution's property clause, he said. The question is whether it grants Congress broad authority to regulate activities on federal land, or whether it merely grants the federal government the right to own land within states, subject to state and local land use and real property law. 

"The Supreme Court answered this question very clearly in 1976 in a case called Kleppe v. New Mexico, when it ruled in favor of the broad interpretation. This gave Congress both the power of an owner and a legislature over the public domain," Wara said. He continued saying the Kleppe case was about whether it was constitutional for Congress to impose federal criminal penalties for shooting wild horses on federal lands. "The court said it was, and strongly emphasized this principle – that on federal land, the federal law applies."

Wara added, "The protesters either disagree with this Supreme Court decision or want Congress to limit itself to acting as an owner rather than an owner and government with respect to federal land holdings. And the latter is not going to happen." He said that such a perspective also ignores the history of land acquisition in the West by the federal government and a history of homesteading that ended with the Federal Land Policy and Management Act of 1976. Historically, governments used homesteading to help populate remote or less-desired areas.

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