Occupiers of the Malheur National Wildlife Refuge question whether the federal government has unequivocal legal rights to own and manage that land, without regard to the wishes of local property owners and ranchers.

Improbably, the U.S. Supreme Court has ruled on exactly that question, specifically regarding the lands of the original Malheur national refuge -- twice.

Those rulings by the nation's highest court, in 1902 and in 1935, found that the federal government has an incontrovertible claim to the refuge's wetlands and lakebeds, dating back to the 1840s, when Oregon was still a territory.

"Before Oregon was admitted to statehood, the United States is shown to have acquired title which it has never in terms conveyed away," Justice Harlan Stone wrote in 1935.

The decisions underscore the area's long record of controversy over land rights -- and show that the current occupiers' claims are not backed by historical fact.

This month's occupation of the bird sanctuary's headquarters by armed militants seems shocking and new, drawing a swarm of reporters and satellite trucks to remote Harney County and making national news.

An American avocet launches out of dense marsh grasses along the edge of Malheur Lake. The shallow lake attracts a wide spectrum of migrating waterfowl, wading birds and shorebirds. Controversy over how, and whether, the federal government should manage the land and water to protect birds has raged for more than 125 years.

But bitter, sometimes violent battles over the use of natural resources along the shores of Malheur Lake and the county's arid rangelands date to at least the 1890s.

And, says Nancy Langston, author of a book that chronicled the history of water use and land rights in the Harney Basin, when it came time to decide who would win the land -- large nearby cattle operations or the bird sanctuary -- the modest settlers and property owners of Harney County sided with the federal government and the refuge.

For 50 years, Dwight Hammond Jr. and his wife, Susie, have owned a 6,000-acre ranch adjoining the refuge. The jailing of Hammond and his son, Steven, for arson prompted the militants' occupation.

A 1920s-era state-brokered compromise with large landowners and land speculators to create an "irrigation enterprise" was billed as a more modern choice than a bird refuge and one that would benefit the small landholders of the county, Langston said. But the general populace of Harney County didn't buy it, she said, so it fell apart.

"Smaller local settlers... went with the conservationists and said, 'You are going to stand up more for us,' " Langston told The Oregonian/OregonLive Tuesday.

Had they and the backers of a strictly managed federal refuge not prevailed, the lake would have been drained all but dry and many more birds would have died, she said.

The Peter French era

Paiute Indians have lived in the Malheur Lake area for more than 6,000 years. Trappers who traveled through the area in the 1820s reported an "incredible" number of Native Americans living in grass huts along its shores, according to information and documents on the refuge's website.

White settlers didn't begin claiming land in that part of Harney County until the 1870s, a decade after the Homestead Act allowed anyone to claim 160 acres of the vast American West to farm.

Peter French, with the backing of a wealthy California cattle barron, was foremost among those who settled the Harney Basin. Starting from the first 160 acres he claimed, he built a cattle empire of more than 140,000 acres, south of Malheur Lake and centered on the Blitzen River, the lake's primary source of water.

He and his company, French-Glenn Livestock Co., grazed their cattle on federal rangelands. They also drained and diverted water from the Blitzen to irrigate cropland and grow their own feed for cows.

That diversion helped dramatically lower water levels in Malheur Lake, creating broad stretches of dry land where the lake's shallow edges had once been.

Squatters claimed that land, first to graze a few cows, then to grow alfalfa and grain and even build small homes, Langston said. But French and his company said that lake basin land belonged to them.

Their battles were both personal and legal. "Anger fermented into a toxic brew of hatred and violence," Langston wrote in her 2003 book, "Where Land & Water Meet."

The squatters first targeted French with arson, burning bales of hay meant to feed his cattle. They tore down some of his fences. Then, late in 1897, one of the settlers shot French dead.

Public opinion against his exploiting water and land resources remained strong, however. According to Langston, a jury of local squatters and shopkeepers from the nearby city of Burns acquitted the gunman of murder, saying his decision to shoot the unarmed French in the back was in self-defense.

It wasn't French's only loss. Before his death, he had sued several of the squatters. His case against one widow reached the Supreme Court in 1902.

The court ruled that French's claims to the now-dry lakebed were invalid. The federal government never gave him claim to the land that had been below the waterline, it found.

That decision paved the way for President Theodore Roosevelt in 1908 to lay claim to the 82,000 acres, including the land claimed by both French and the widow he took to court, of federally owned property and deem it a national wildlife refuge.

Ammon Bundy, a leader of the militant takeover of the refuge headquarters, this week called that declaration "an unconstitutional act" and said the land should be "given back" to private landowners.

In fact, the nation's highest court ruled seven years before Roosevelt's declaration, and again 27 years after it, that the federal government had never sold or transferred any of the 82,000 acres to French or anyone else. It was, and remains, federal land.

Public opinion and willing sales

The high court's decision didn't stop arguments over how to best use the land and water of Harney County, however.

The federal government didn't immediately kick the squatters off its land. And the French-Glenn Co. kept operating, at first under ownership of two Portland investors. They built channels in 17 miles of the Blitzen River and diverted water for irrigation, according to information on the refuge's website.

In 1916, 46 percent ownership in the huge ranching operation was sold to Louis Swift of the Swift Meat Packing Co. out of Chicago, who would come to own all of French-Glenn in 1928.

Evolving views of how to manage water rights and irrigation needs in the West complicated decisions about how best to use public lands, including those of Harney County, Langston said.

State leaders, prompted by Swift and a land speculation group he created, leaned on Oregon lawmakers and the state land board to allow developers to drain Malheur Lake and its tributaries, she said. They planned to create a massive irrigation system that they said could turn Harney County into an agrarian paradise, she said.

But pro-conservation forces pushed for the federal government to assert its ownership and strongly regulate land and water use in the area.

A white-faced ibis takes flight at Malheur National Wildlife Refuge. The waters of Malheur Lake and nearby waterways have drawn waterfowl in breath-taking numbers for thousands of years.

Fred Otley, a rancher whose many descendants still work the land of Harney County, said favoring the irrigation plan over a nature preserve was "not for the benefit of the Oregon public" and would benefit only "the dry lands of a millionaire land and cattle corporation," Langston writes in her book.

Growing support from Harney County's small landholders and squatters along with pressure from the Audubon Society, which had considerable support in Portland and Salem, helped scuttle the state irrigation enterprise.

So did the Depression and profound Dust Bowl-era drought that hit the area in the early 1930s. The weather pattern delivered too little water and too little forage and hay to raise many cattle; the economy meant too few people could afford to buy much beef.

Amid the prolonged controversy and uncertainty, the federal government sued Oregon in an effort to end both.

The lawsuit, argued before the Supreme Court in March 1935, sought a clear declaration that the federal government had unfettered ownership of all 82,000 acres.

The decision turned on whether the waters of the Malheur refuge were "navigable" at the time Oregon became a state. That's because, under the acts of Congress that admitted new states to the union, ownership of navigable waterways was automatically conveyed to the state.

Hundreds of people testified and reams of water and land measurement records were examined before the court concluded that, no, boats had never routinely plied the waters of the refuge for commerce, or any other purpose.

The upshot of the court's decision was crystal clear: The federal government owned, without restrictions of any form, the entire acreage.

By 1935, Swift willingly sold its 65,000 acres adjoining the refuge and its water rights to the Blitzen to the federal government so it could expand and acquire water for the refuge.

Seven years later, prompted by the same economic and climatological forces, a widow of a U.S. senator sold her family's once-powerful Double-O ranch to the federal government, bringing the refuge to 161,000 acres, just 27,000 shy of its full size today.

-- Betsy Hammond

Editor's note: The author is not related to the Hammond family of Harney County.