Steven Miller, managing editor of Nevada Policy Research Institute’s Nevada Journal, today posted a primer on the proper handling of federal public land and artfully explains why the Nevada Constitution’s Disclaimer Clause — 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” — is not an obstacle to disposal of federal land, but a vehicle for doing so.
Miller explains in “Broken Compact: The Hollowing-Out of Nevada Statehood” that for the U.S. government to dispose of land within Nevada and other states that joined the union after the original 13, but on equal footing with the original states, it first had to have free and clear title to the land. “No market existed for encumbered properties with clouded titles,” he explains.
But to this day 87 percent of Nevada remains in the hands of federal agencies — mainly Bureau of Land Management, Fish and Wildlife Service and Forest Service — as does roughly half the land in the West.
As if to put a face on this issue, along comes Bunkerville rancher Cliven Bundy, who has been ordered by a federal judge to remove his cattle from a section of BLM land or have them seized. Bundy is appealing the order.
The Desert Valley Times quotes Bundy as saying he is grazing his cattle on Nevada and Clark County land in accordance to Nevada law, and the federal government has no jurisdiction.
“Are we a state or a territory in the United States?” Bundy asks, stating the fundamental question. Perhaps the more accurate determination is that Nevada is merely a colony.
Bundy says the problem is that his cattle have drifted onto BLM land because the agency has failed to maintain a fence. “That’s the whole problem. They haven’t maintained a fence, and they expect me to shoulder the expense to get them” off the BLM land, he was quoted as saying. “I want to be able to keep the public access, keep my vested water and grazing rights and keep the economic value of the land.”
In a sidebar to “Broken Compact,” Miller explains how Congress, just one month apart in 1864, passed acts enabling Nevada and Nebraska to become states. Both states had Disclaimer Clauses in which each territory’s residents “agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory …”
Today Nebraska has about 1 percent federal public land.
As Miller notes, ranchers in the West became accustomed to ranging their cattle on public land, but eastern Nebraska was settled by “Jeffersonian yeoman farmers,” who soon outnumbered the ranchers in the western part of the state. About 1905, a Nebraska congressman managed to push through a bill creating a Homestead Act for Nebraska, allowing homesteaders to claim 640 acres instead of 160 acres.
Soon all the public land was snatched up. Since 640 acres was too small to support a family, the land was soon sold to ranchers at an affordable price.
Miller’s piece also notes Nevada’s enabling act states that the land “shall be sold,” with 5 percent of proceeds going to the state:
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, after deducting all the expenses incident to the same, shall be paid to the said state for the purpose of making and improving public roads, constructing ditches or canals, to effect a general system of irrigation of the agricultural land in the state, as the legislature shall direct.
The original intention seems pretty clear.