Tell me again how the federal government has the right to hold so much Nevada land

Does the federal government have the power to own and control vast land holdings within the sovereign boundaries of any given state? It obviously has the power, because it has controlled more than 80 percent to the lands in Nevada for nearly 150 years.

But does it have the right or moral authority?

Article IV, Section of the Constitution says: “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.”

Was it the intent of the Constitutional Convention to allow the federal government — under limited and enumerated powers —to hold open land in perpetuity and out of productive commerce?

Constitutional scholar Rob Natelson writes in a University of Colorado Law Review article:

“As understood at the time of ratification, the Constitution did not permit the federal government to retain and manage land  indefinitely for unenumerated purposes. Massive, permanent federal land ownership would have been seen as subversive to the constitutional scheme. The federal government’s authority to dispose was unlimited (except for trust standards), but its authority to acquire, retain, and manage was not: all the latter functions could be exercised only to serve enumerated powers. To be sure, Congress would have considerable discretion as to how to effectuate enumerated powers, and reasonable exercises of discretion were not to be questioned. At the end of the day, however, all federal land not ‘necessary and proper’ to execute an enumerated power was to be disposed of impartially and for the public good. … Generally, though, the Constitution’s original meaning was that lands not dedicated to enumerated functions were to be privatized or otherwise devolved on terms that best served the general interest.”

Enumerated powers to create and hold such things as “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings …” not vast open range.

According to the 10th Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In 1828 the states of Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida petitioned Congress for the release of federal lands within their boundaries. Their argument was successful:

“When these States stipulated not to tax the lands of the United States until they were sold, they rested upon the implied engagement of Congress to cause them to be sold, within a reasonable time.  No just equivalent has been given those States for a surrender of an attribute of sovereignty so important to their welfare, and to an equal standing with the original States.”

Nevada and the rest of the West has been waiting impatiently for the disposal of those federal lands.

Numerous stories about the Cliven Bundy standoff with the Bureau of Land Management have mentioned the Disclaimer Clause in the statehood ordinance of Nevada —  in which the residents of the territory were required to “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.” — only one so far as I have seen mentions the voters of Nevada amended the Constitution in 1996 to repeal that clause.

And none mentions the part that reads: “That five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …”

With Nevada it was not an implied engagement. It was a promise.

In the case of Pollard v. Hagan in 1845, the Supreme Court held:

“The United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama, or any of the new States, were formed, except for temporary purposes, and to execute the trusts created by the acts of the Virginia and Georgia legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty of the 30th April, 1803, with the French Republic ceding Louisiana.

“Upon the admission of Alabama into the union, the right of eminent domain, which had been temporarily held by the United States, passed to the State. Nothing remained in the United States but the public lands.

“The United States now hold the public lands in the new States by force of the deeds of cession and the statutes connected with them, and not by any municipal sovereignty which it may be supposed they possess or have received by compact with the new States for that particular purpose.

“That part of the compact respecting the public lands is nothing more than the exercise of a constitutional power vested in Congress, and would have been binding on the people of the new States whether they consented to be bound or not.”

Not binding on the people of the new states whether they consented to be bound or not. Besides, how could the residents of the territory bind the residents of the state of Nevada for 150 years?

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65 comments on “Tell me again how the federal government has the right to hold so much Nevada land

  1. Athos says:

    We live in a very sick society, morally. I honestly don’t know how this can be turned around (short of deporting every lawyer to some other country – preferably of the Muslim persuasion in the Middle East!).

  2. Nyp says:

    As I said, completely whack.

  3. Athos says:

    You wouldn’t, by any happy circumstance, be a lawyer would ya, petey?

  4. Nyp says:

    Hey — how much time do we have in which to sell off Yellowstone Park?

  5. I don’t think they teach the “whack” defense in law school.

  6. Rincon says:

    I don’t see how the federal government can justify holding onto such a large amount of land for 150 years. Be careful though. They might sell the atomic test property first.

  7. Nyp says:

    And we have to privatize Yosemite and all other nation Parks as well, right? After all, maintaining public parks is not among the enumerated powers.

    I better get my folks to the Grand Canyon before you folks have your way.

  8. Steve says:

    Nyp has hit on a great idea!
    I love it!

    Turn absolutely every inch of federal land into national parks and open them all up to the public, for a small fee of course.

    Great idea Nyp, thanks!

  9. Nyp says:

    Really – where does it say in the Constitution that Congress has the right to create national parks?

  10. Steve says:

    You guys have interpreted it into the document….don’t hate me for being so supportive!

  11. Winston Smith says:

    In reality, we’re just replaying what happened after 1066 when William the Conqueror overlaid his feudalistic system of law over the long-entrenched Anglo-Saxon Common Law. Historically under ASCL, most land was privately owned by the common freemen, who worked together to mutually protect their lives, liberties and properties.

    William reassigned all of England’s land to one of three entities: the king, the church and the Norman nobility. The average English Joes got screwed and became serfs. Not unlike today’s vast areas currently being assigned to the BLM, the EPA and the various minor federal agencies.

    As some of you may realize, the system of law our Founders designed harkened back to ASCL, in an effort to return the American colonies of freemen to their rightful heritage.

    http://www.lordsandladies.org/feudalism-in-england.htm

  12. Nyp says:

    Yeah – everything was hunky-dory until that commie William the Conqueror came along. He was almost as bad as the tyrant Abe Lincoln.
    He is the reason why the federal usurper unconstitutionally opened Yellowstone Park.

  13. nyp says:

    It’s all been downhill since 1066 A.D.

  14. Milty says:

    C’mon, Nyp, get with the times. It’s not 1066 AD, it’s 1066 CE.

    God forbid that we might have references to God in our tracking of time.

  15. nyp says:

    I forgot that BC & AD aren’t PC

  16. Yes, there is no enumerated power to grab land for National Parks, but that is not the fight. All the states trying to claim sovereign land are exempting parks, defense, BIA and even forests in many cases.

  17. nyp says:

    But under the rather unique legal theory you cite, if the the Constitution does not specifically grant Congress the ennumerated power to “grab land for National Parks” (as you so charmingly put it,) then federal ownership of Yellowstone Park and the Grand Canyon must be unconstitutional. Just as unconstitutional as you believe ownership of the land around the Bundy and Hage properties to be.

    Don’t know about you, but I’m looking forward to the strip mining of the Grand Canyon.

  18. Steve says:

    “Don’t know about you, but I’m looking forward to the strip mining of the Grand Canyon.”

    State ownership does not mean strip mining the Grand Canyon. Or any other lands.

    Get real.

  19. nyp says:

    Bet there are lots of valuable minerals in there. Get out your shovels.

    Really – you don’t seem to appreciate that according to the loony legal theory cited by Mr. Mitchell, the entire national park system is unconstitutional.

  20. Winston Smith says:

    Oh petey, come now, control freaks are control freaks, no matter how they describe themselves, whether king or czar, pharaoh or führer, pope or president, commie, fascist, democrat or neo-con, or a hundred other things. They want power, money and sex, and consider most everyone around them as objects that can either help or hinder them in getting what they want.

    No, Lincoln wasn’t as screwed up as Stalin, Hitler or Mao, but the control freak behavior was there, none-the-less. Millions of the murdered souls over the centuries testify to the fact that control freaks and their loyal minions do most of the killing and destroying, while those that just want to live their lives, raise their children and be left the hell alone get run over unless they decide that enough is enough and stand up for their rights and freedoms.

    Not exactly a difficult lesson from history to derive, at least for any thinking person who is willing to pull his head out and look around.

    War is Peace; Freedom is Slavery; Ignorance is Strength; Suicide is Painless

  21. Steve says:

    The, “it must be constitutional because it has to be in there somewhere” theory is more kooky than anything Tom is describing. And that very theory is what you guys are relying on. In the from of a SCOTUS ruling…from 1886. However, the ruling is moot today as the impetus for its foundation is no longer true.

    “The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that Government, because it never has existed anywhere else; because the theater of its exercise is within the geographical limits of the United States; because it has never been denied; and because it alone can enforce its laws on all the tribes.”

    https://supreme.justia.com/cases/federal/us/118/375/case.html

    This whole thing is racist to its core. This idea that the natives “need” protecting from the very organization that was and is suppressing them is laughable on its face.
    States are supposed to hold the lions share of the lands withing their borders…not the feds.
    State and local government is much more responsive to local matters and local populations.

  22. nyp says:

    I have no idea what you are talking about.

  23. Steve says:

    “I have no idea what you are talking about.”

    That’s what you always say when you are proven wrong.

  24. nyp says:

    What are you talking about? Why are you quoting from a judicial opinion about Indian criminal law?

  25. Athos says:

    “According to shocking new numbers that were just released by the Bureau of Labor Statistics, 20 percent of American families do not have a single person that is working.”

    Could this be true?

  26. Steve says:

    That was the impetus for federal control of lands within the states, disingenuous nyp.

  27. nyp says:

    No, it wasn’t. That’s nuts. You think that a case from the 1880s dealing with criminal law in Indian territories was the impetus for federal control of lands that had been under federal control ever since the Treaty of Guadalupe Hidalgo in 1848?

  28. Steve says:

    Man,,,we WERE talking about national parks.

    Then you decide its time to go back to the original argument?

    How libby of you.

  29. nyp says:

    Oh, I see. You are stuck in the “Yellowstone Park is unconstitutional” groove. Your argument is that a Supreme Court decision from 1886 dealing with Indian criminal law was the impetus for the establishment of Yellowstone National Park in 1872?

  30. Is all Louisiana Purchase land still under the control of the federal government?

  31. Steve says:

    “But this power of Congress to organize territorial governments, and make laws for their inhabitants, arises not so much from the clause in the Constitution in regard to disposing of and making rules and regulations concerning the territory and other property of the United States as from the ownership of the country in which the territories are, and the right of exclusive sovereignty which must exist in the National Government, and can be found nowhere else.”

    Forwarding the theory,
    “It has to be so because it can not be found anywhere.” Solidify’s the position to control more lands.
    The federal gov’t is supposed to own only the land in the District of Columbia. It is supposed to pay rent for all other lands in the various states.

  32. Broken Compact: http://www.npri.org/docLib/20130813_NPRIBrokenCompactReport.pdf

    President Andrew Jackson in his land bill veto
    message to the United States Senate on December 4, 1833, where he explained: “I do
    not doubt that it is the real interest of each and all the States in the Union, and
    particularly of the new States, that the price of these lands shall be reduced and
    graduated, and that after they have been offered for a certain number of years the
    refuse remaining unsold shall be abandoned to the States and the machinery of our
    land system entirely withdrawn. It can not be supposed the compacts intended that
    the United States should retain forever a title to lands within the States which are of
    no value, and no doubt is entertained that the general interest would be best promoted
    by surrendering such lands to the States.”

    http://americanlandscouncil.org/wp-content/uploads/2014/02/Generic-STATE-Resolution.pdf

  33. nyp says:

    Not all of it — only the parts that We the People decided to retain in perpetuity as National Parks, Monuments and other federally-protected areas.

  34. nyp says:

    Ah, will if a politician’s speech doesn’t constitute a a binding piece of legislation, I don’t know what does.

  35. nyp says:

    Someone help Steve out here. He is floundering.

  36. Steve says:

    Not at all, I am saying decisions over more than 100 years have eroded the intent of the founders to keep the central government small and purposed.
    We have lost the republic as Franklin predicted, we have not been able to hold it.
    It has taken a long time and it is continuing in the changes the BLM constantly puts out that kill ranching interests in the west.
    That example is only one of many small steps from a small central government to the behemoth we have today.
    Its only reality…accepting that is not optional. Disliking it OTH is an option…I do not like what this country is becoming and it is not what we were taught in the public schools I went to.
    (Those would in Massachusetts…one would think my home state would know the history of the country it had a direct hand in creating. Sadly, Massachusetts seems to have forgotten much of its own history in its attempts to preserve the artifacts while legislating away most of their own liberties.)

  37. nyp says:

    So you agree with Mr. Mitchell that Yellowstone is unconstitutional?

  38. We can argue about Yellowstone another day. Is it constitutional under original intent — for the federal government to “manage” all that BLM land inside the sovereign states of the West?

  39. Steve says:

    I was taught the federal government was to own only the land within the District of Columbia and it was to pay the various states for rights to any other lands needed in the function of the small , purposed responsibilities assigned specifically to the federal government by the founders.

    Those responsibilities have been distorted by smooth talking lawyers taking this country from the republic it was meant to be to the behemoth central authoritarian pseudo democracy it claims it is today. In no way does the federal behemoth resemble what I was taught the founders designed and fought for. I do not like the road we are on and I do not like where it leads..this does not mean I have much choice in the matter, it only lets me vent once in a while.

    What I saw in Bunkerville should scare the feds…it was very indicative of how close this country is to boiling over again. If you guys in power don’t recognize that then you most certainly do have something to worry about, though it is not what you think it is.

  40. nyp says:

    You can’t wiggle away so easily. Your argument is based on the premise that Congress must possess — and lacks — an “ennumerated power” authorizing it to obtain and hold public lands in perpetuity for the benefit of We the People. As you yourself admit, your argument applies with equal force to Yosemite, the Grand Canyon, Bryce Canyon, and Devil’s Tower as it does to the land outside Bundy’s ranch. To most people, that would suggest that there is something seriously whacked out with the arguments upon which you rely.

    On the other hand, I think it would be kind of cool to have Donald Trump take over Devil’s Tower. Put a huge shiny “T” over it.

  41. nyp says:

    So, again, agree with Mr. Mitchell that Yellowstone is unconstitutional?

  42. Steve says:

    “On the other hand, I think it would be kind of cool to have Donald Trump take over Devil’s Tower. Put a huge shiny “T” over it.”

    funny,ha,ha.

    I think the decisions that have interpreted the republic out of the federal government are wrong and if things had progressed along the lines intended by the founders Yellowstone would be a Wyoming State reserve and park…preserved and maintained by the state of Wyoming as the states populace would have directed.
    And that state has a populace that would kill the Donald for even thinking of placing a big ass “T” anywhere near that park even if it IS a federal park instead of a state park (as it should be).

  43. nyp says:

    OK. So you believe that the national park system is unconstitutional.

    At least you have the courage of your extremism.

  44. Steve says:

    I believe it is one of the things that are contrary to the intent of the founders.

    You guys have created a situation where every opinion you deem unacceptable becomes extreme. The only opinion you deem OK are those that support your own extremism.

    In your world it is extreme to like the founders words as written and it is “normal” to like the interpretations the founders would not, in any way, recognize as coming from their words.

  45. Nyp says:

    I believe it was Barry Goldwater who said “extremism in defense of declaring the national park system unconstitutional is no vice!”

  46. Steve says:

    a knee slapper, nyp…keep your trait,,,,er, ah, trader job.

    Thank goodness for YouTube,,,if one is picky the truth is easy to see and hear.

  47. Winston Smith says:

    Petey, surely you don’t think any of us here are stupid enough to fall for you “extremism” comments? I’m sure you well know that the national parks were controversial in the beginning, because they weren’t expressly allowed by the Constitution. Of course, like so many other changes in the last 100 or so years, the agents of Big Government kept using the Hegelian Dialectic Process to normalize the concept enough to get it passed, in spite of any Constitutional concerns.

    “Ah, will if a politician’s speech doesn’t constitute a a binding piece of legislation, I don’t know what does.”

    Isn’t it interesting that the whole modern dis-interpretation of the “establishment clause” of the First Amendment, starting back in the 1940’s, was based, not on any original Constitutional understanding or on some legislation passed by Congress and signed by a president, but on an obscure letter that Thomas Jefferson wrote the Danbury Baptist church members reassuring them that the federal government was not planning on anointing one Christian sect over the others as the “national church”, using the now infamous terminology, “separation of church and state”. So began the six decades of jousting penumbras in the courts, as 150 years of original interpretation was rejected out of hand in order to politicize the religious activities of every hamlet across the land.

  48. Athos says:

    The mask is off with prez. Pinocchio, isn’t it? And the evil ones have perfected the dead vote, so Marxist boy could be elected in 2012.

    Here’s what you’ve forgotten, petey. The American people have always fought tyranny and oppression. And we’ve always won. We just take so much, until we wake up, and cast down the beast.

    What’s that I hear?

    An alarm clock going off?

  49. nyp says:

    This is why I place so much value on Mr. Mitchell’s blog. It is where I go to find out what conservatives really believe, stripped of all the euphemisms and political correctness.

    In the course of one blog post I have learned that conservatives believe, with all their hearts, that:

    a) the Grand Canyon is unconstitutional;
    b) there is no separation between church and state; and
    c) Mitt Romney won the 2012 election.

    Oh, and also that Abraham Lincoln was a tyrant, (although arguably not as bad as Hitler,) and that our troubles really began with the Norman Conquest.

    Thank you for this invaluable insight into the conservative mind.

  50. Steve says:

    Nyp teaches us, with each post he makes, libs read and hear only what they want to read and hear. Blocking out everything else until it is interpreted to mean something entirely different from what the words said.
    No real surprise in that. Its what libs have been doing to the founders words for a couple centuries now.

  51. Rincon says:

    I don’t think the ownership of federal land has to be in the Constitution. Instead, I suspect it is an application of common law. Whenever the federal government acquires land, as it did in the Louisiana purchase for example, the land belongs to the people of the United States through the actions of the federal government. If the government then decides to make an area into a state, does it automatically relinquish ownership of every square inch just because it is declaring the area to be a state? I believe it has the right to create a new state under whatever ownership conditions it decides. .

    I did find one other pertinent item in my search. In Thomas’ post at the top, it says,
    “That five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …”

    Looking further into documents containing this language,, I found this phrase:
    “…Sixth. And that the said State shall never tax the lands or the property of the United States in said State…” https://www.oregonlegislature.gov/bills_laws/Pages/OreConstAdmission.aspx

    This suggests that at the time, U.S. ownership of some property was a condition of statehood. (I used the Oregon paper because the Google books version wouldn’t allow me to cut and paste. So far as I can tell, the language is the same for several western states).

    Nevertheless, none of this excuses the hoarding of land by the federal government

  52. Winston Smith says:

    The amusing thing about petey is that he never really philosophically defends Big Government, the reduction of personal liberty, the intrusion of the militarized police/surveillance state, or any other pogrom that the fedbots foist upon the American people under the safety/security rubric. That is why I still suspect he is a low-level NSA or CIA operative, just doing his thing in his cubicle, 24/7. By tracking his posting times, it is obvious that petey is actually three different people, or he is so bored by his life, that when he gets up to pee in the middle of the night, he rushes over to see our responses.

    I wouldn’t be surprised if the peteys monitor and comment on several websites each day, promoting Big Government and denigrating anyone who has been resisting the HDP brainwashing that we are constantly exposed to. As a mere cog in the fascist/globalist bankster wheel, the peteys will someday have to face the fact that they attempted to destroy our nation and enslave its people, just for some $80k salary. Maybe a few of the hundreds of NSA/CIA peteys out there will have a change of heart, and realize that their dedication was for naught, as the internal purges take them out, one by one.

    So it goes for the minions of Control Freaks, who only notice the writing on the wall when the power shift happens, and by then it is often too late. Just like the Brownshirts, they can be disposed of when their usefulness has ended, and they’re just considered loose ends.

    Moral of The Story: Never trust a Control Freak, because eventually he’ll fuck you over, no matter what he has promised you.

    Kinda makes you feel sorry for the peteys of the world…but not really…

    War is Peace; Freedom is Slavery; Ignorance is Strength; Peteys are Disposable

  53. Rincon, the voters of Nevada repealed the “no tax” provision in 1956 and the Discalimer Clause in 1996.

  54. nyp says:

    There are a bunch of contracts that I would like to unilaterally annul.

  55. Athos says:

    The last 2 states admitted to the union (in the continental US) happened in 1912. Then we got that progressive elitist, Woodrow Wilson (what do you know? an Ivy League communist sympathizer!) for the next 8 years, and the erosion of our liberties began.

    But out of the ashes of President Progressive, we got 8 years of Harding/Coolidge. And the great experiment of legislating sobriety was repealed (started by Dems, repealed by Dems) so it’s not impossible for these elitist to fear the people, and repeal laws that restrict our freedoms.

    And these elitist rulers are no longer limited to just one political party (although I’d be hard pressed to find ONE freedom loving Democrat currently holding office. Can anyone think of one?)

    However, never has the press (our 4th Estate) sided so blatantly with the elitist/ communist political cabal. The redacted talking point paper just released (thru court order) concerning Benghazi talking points should be enough to end this puppet’s reign, a la Watergate.

    But we shall see, won’t we?

  56. I think after 150 years there might be grounds for annulment.

  57. nyp says:

    Benghazi!

  58. Winston Smith says:

    Hey guys, check this out:

    http://freedomoutpost.com/2013/09/official-government-documents-label-72-types-americans-potential-terrorists/#bC2YaZiFoIFGp8It.99

    I scored a 45!

    I wonder what petey will score? Perhaps a -3?

  59. nyp says:

    Bet Clive Bundy scores pretty high as well. People who traffic in neo-Confederate ideology have this odd tendency towards also being racist.

  60. Athos says:

    Ben Ghazi, petey! You know, Bill Ghazi’s 1st cousin. Tom already beat me to the punch with his blog today (should a known!)

  61. Taylor says:

    On constitutional law I would like to make a point. Some people like to use Article 1 Section 8 Clause 17 to say that the National Parks, and National Forests, etc are unconstitutional due to the fact that they are not mentioned. Let me post the text.
    The Congress shall have Power … To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, 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;

    There are those who argue that the lack of mention of parks or forests in Article 1 Section 8 Clause 17 makes them unconstitutional, this is a moot argument. Let me explain why.

    Notice the presence of the words “to exercise exclusive legislation in all cases whatsoever” and “to exercise like authority” thereby linking the two, exercising exclusive legislation is not the same thing as owning land, if it was then there would not be any private property inside Washington DC but there is.

    The land that is now Washington DC was once part of the states of VA and MD, but since the state legislatures voted to cede those lands to the federal government, that meant that the states would no longer hold any power over those lands, thus the state laws do not apply and the state authorities have no power.

    In Great Smoky MOuntains National Park however, all TN and NC state laws do apply and not only do the State Authorities have power, but the county authorities do too. The parks are not federal enclaves, they are federal lands. Big difference.
    The Power to own land is a separate power from the power to create federal enclaves, and the government gets this power from the 5th amendment and the eminent domain clause which states “for public use” giving the government much broader power in owning land than in creating federal enclaves. Are parks for public use? Absolutely.
    Article 4 Section 3 Clause 2 makes a case for the parks 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.

    The national parks and national forests are properties of the United States, but the lands are still under state authority, meaning if you break a state law they can and will arrest and prosecute. The same does not old true in DC and other federal enclaves.

    Just thought I would point that out, being a huge fan of the parks and forests.

  62. Steve says:

    Does that mean 87% of Nevada is Park or Forest land?

  63. […] a 1996 constitutional amendment, Nevada voters asked that federal land be turned over to the state. Congress has simply ignored […]

  64. […] a 1996 constitutional amendment, Nevada voters asked that federal land be turned over to the state. Congress has simply ignored […]

  65. […] he is referring to is the Disclaimer Clause, which was put in the constitutions of a number of states to establish free and clear title to […]

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