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?