Skip to comments.Federal Government vs. the West - A Century of Conflict
Posted on 05/03/2014 7:29:44 AM PDT by VitacoreVision
America's Founders intended for the federal government to transfer the Western lands to the states. Failure to do so has led to more than a century of conflict.
Feds vs. the West
The New American
03 May 2014
The Nevada cattle rancher in the white cowboy hat and his supporters had massed in defiance of federal policies and agencies that threatened to drive them into extinction. To the cheers of locals, the rancher climbed aboard a Caterpillar bulldozer and plowed open a county road that had been closed by the U.S. Forest Service (USFS). Are we talking about Cliven Bundy in 2014? No, the white-hat rancher to whom we are referring was Richard Dick Carver, a longtime county commissioner in Nevadas sprawling and sparsely populated Nye County, and the date was July 4, 1994 Independence Day, 20 years ago.
Carvers act of defiance earned him a cover on Time magazine, which showed Carver and some of his supporters, with a super-imposed headline Dont Tread on Me, followed by the subtitle, An inside look at the Wests growing rebellion.
While the federal government claims 84.5 percent of Nevada the highest of any state in Nye County the federal footprint covers over 93 percent, and federal bureaucrats in Washington, D.C., dominate virtually every aspect of Nye County inhabitants lives. Nye County, the nations third largest county, was also home to the late Wayne Hage, the feisty rancher/scholar who, for decades, courageously fought the federal government in court and won landmark decisions for property rights. Hage was also author of the 1989 book Storm Over Rangelands: Private Rights in Federal Lands, a ground-breaking work on the history of the Western states, particularly as it relates to politics, governance, land use, and property rights. It is not surprising then that Nye County became the face of what is known as the Sagebrush Rebellion II, an effort by citizens in Western states to wrest control away from oppressive federal bureaucrats. The efforts by Carver, Hage, and others in the late 1980s-1990s were a continuation and resurgence of earlier efforts in the 1970s-1980s, often referred to as Sagebrush Rebellion I. Carver challenged the federal road closures in court.
There’s a hot wind on the horizon. :-)
For all on FR who support & admire Bundy, may I suggest you find RANGE MAGAZINE on the internet & buy a subscription for yourself & your friends who are like-minded.
This magazine has supported the ranchers & farmers for years.
Thank you for posting one of the most educational articles I have read in a while, on a topic I was not familiar with. It does a great job discussing the history of today’s conflict between the Fed and the Western States, and present cogent arguments for the ownership of the land by the Western States. I find myself much better armed to effectively debate the other side.
Virginias Act of Cession of 1784, which became a model for others, stipulated that the ceded lands would be disposed of for revenue for the United States and the creation of new member states, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever.
The article here is talking about agreements whereby the state of VA, and by extension other eastern states, ceded their claims to the federal government under certain conditions. One of which was that land title would be eventually turned over to the new states. Note that this agreement was pre-Constitution.
There is no reason given, that I saw, whereby this principle should be considered a constitutional requirement for lands acquired by the USA in other ways, such as by the Louisiana Purchase or the Treaty of Guadelupe Hidalgo, which is how the USA acquired title to Nevada.
AFAIK, pretty much all of this land was available for sale to the public for most of a century. There were no buyers, for the simple reason that the land wasn't worth anything.
Even today, most of it still isn't worth anything. Could Bundy borrow money to buy 200,000 acres of BLM land, which at a mere $100 an acre would be $20,000,000; then pay off the mortgage and make a profit running cattle on the land? Of course not.
So should we give the land away to private owners? Even if he owned it free and clear, could Bundy pay real estate taxes on that amount of private property and still make a profit running cattle? I don't know, but I doubt it.
Does anyone have a reference to federal land title ever being turned over in toto to state ownership in any of the states formed from the LA Purchase, the Oregon Treaty or the Mexican Cession? Texas is a special case, having been an independent nation prior to entry into the Union. Thus all public lands were held by the State there.
For some reason the author chose not to include a link.
Does anybody know when or how this "forcing" occurred?
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Please remember that the Supreme Court has reversed more than 150 of earlier Supreme Court decisions on natural law. Is that what you would consider as someone being consistent and reliable in interpreting the Constitution?
The Resolution of 1780, "the federal trust respecting public lands obligated the united States to extinguish both their governmental jurisdiction and their title to land that achieved statehood."
In the Constitutional Convention of 1787, The Charter of Liberty contained these words, "The new Federal Government is an agent serving the states.", "The delegated powers are few and defined", "All powers not listed are retained by the states or the people", "The Resolution of 1780 formed the basis upon which Congress was required to dispose of territorial and public lands", "All laws shall be made by the Congress of the United States". (not agency bureaucrats!)
That should be sufficient for you to determine who all public lands belong to, hint - NOT the Federal Government!
"The Constitution is a written instrument. As such, it's meaning does not alter. That which it meant when adopted. it means now". So said the Supreme Court in South Carolina v United States in 1905
Articles of Confederation, Article VI, clause 1 All engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. In Article IX "... no State shall be deprived of territory for the benefit of the United States."
Formation of a "more perfect union" does not absolve that union of prior engagements, including those obligations establish by the resolution of 1780 and the Articles of Confederation.
Our government system is established by compact, not between the Government and the State Governments but between the States as Sovereign Communities. By James Madison 1821 (This is what make the County Sheriffs the highest law enforcement officer in that County and gives him/her the authority to tell the BLM, the FBI or any other Federal Agency to get out of the County or they will be arrested and jailed.)
What I have written here is but a short piece of the process that the Founder went through to establish our Constitution and system of government.
Please view these videos and see if they don't change your mind about whether or not Cliven Bundy is in the wrong by defying the BLM.
Here's one that shows why the Sheriff of Clark County is duty bound to keep the BLM and all Federal agents from arresting Cliven Bundy.
>>There is no reason given, that I saw, whereby this principle should be considered a constitutional requirement for lands acquired by the USA in other ways, such as by the Louisiana Purchase or the Treaty of Guadelupe Hidalgo, which is how the USA acquired title to Nevada.<<
By posting this I am not representing myself to be a Constitutional expert!
Articles of Confederation, Article VI, clause 1 All engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. In Article IX “... no State shall be deprived of territory for the benefit of the United States.”
Thanx for that explanation and historical perspective.
Here’s what I think occurred.
The congress had the northwest territory surveyed, determined state lines, cleared up some border conflicts from the original 13, and sold off parcels. This model was used in all territories through the 1800s. The sale of the northwest territories retired the debt from the revolutionary war and the start up of the government (DC buildings etc.). If fact it may have kept other taxes down for a century.
It seems that when the territories gave way to states the feds just hung onto the property that was not sold off.
The last part is my conclusion.
Source: The Fabric of America.
Which is of course why the agreements entered into between the Confederation and the various eastern states continued to be valid under the Constitution.
But those agreements were with regard to particular territories, and did not establish a general law with regard to territories. Though they could perhaps be construed as creating a non-binding precedent.
no State shall be deprived of territory for the benefit of the United States.
True. BTW, that is the closing phrase of what is possibly the longest sentence I have ever seen!
The next paragraph is as follows.
"All controversies concerning the private right of soil claimed under different grants of two or more states, whose jurisdictions as they may respect such lands, and the states which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the congress of the united states, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different states."
This appears to draw a distinction between "the private right of soil" and "territorial jurisdiction" of a State.
IOW, property in land, title to ownership of land, is a very different thing from territorial sovereignty. Title to land can change many times, but it does not affect the state's sovereign rights over the land.
I'm having some trouble getting an overview of whether or when federal title to land was transferred to states.
However, I did run across an Executive Order issues by A. Jackson, the Specie Circular, in 1836. This required that payment to the federal government for purchase of public land be in specie rather than paper money.
Since most of the land east of the Mississippi had already become states in 1836, I suspect much of the land in question was land within these states still in possession of the federal government and being sold to settlers. But I can't prove that yet.
The Specie Circular caused huge uproar throughout the West, which doesn't seem likely if it was limited to the few areas that were still territories.
MI and AR became states right around then. IA, MN and WI weren't even organized territories yet, so the US wasn't selling land in them.
This may all seem more than a little irrelevant. But I keep seeing articles and comments implying that states east of the Rockies had title to all land within their borders transferred to the state at time of statehood, and that therefore the western states were ripped off.
But I haven't seen any real evidence that this was the case, particularly for the states between the Mississippi and the Rockies.
Thanks, this is good.
“The Resolution of 1780, “the federal trust respecting public lands obligated the united States to extinguish both their governmental jurisdiction and their title to land that achieved statehood.”
In the Constitutional Convention of 1787, The Charter of Liberty contained these words, “The new Federal Government is an agent serving the states.”, “The delegated powers are few and defined”, “All powers not listed are retained by the states or the people”, “The Resolution of 1780 formed the basis upon which Congress was required to dispose of territorial and public lands”, “All laws shall be made by the Congress of the United States”. (not agency bureaucrats!)”
Also equal footing as it relates to why the federal government owns so much property in the western states and almost none in the original 13 states.
Specifically, the Pollard’s case in Alabama:
“Pollards Lessee involved conflicting claims by the United States and Alabama of ownership of certain partially inundated lands on the shore of the Gulf of Mexico in Alabama. The enabling act for Alabama had contained both a declaration of equal footing and a reservation to the United States of these lands.264 Rather than an issue of mere land ownership, the Court saw the question as one concerning sovereignty and jurisdiction of the States. Inasmuch as the original States retained sovereignty and jurisdiction over the navigable waters and the soil beneath them within their boundaries, retention by the United States of either title to or jurisdiction over common lands in the new States would bring those States into the Union on less than an equal footing with the original States. This, the Court would not permit. Alabama is, therefore, entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it, before she ceded it to the United States. To maintain any other doctrine, is to deny that Alabama has been admitted into the union on an equal footing with the original states, the constitution, laws, and compact, to the contrary notwithstanding.... [T]o Alabama belong the navigable waters and soils under them, in controversy in this case, subject to the rights surrendered by the Constitution to the United States; and no compact that might be made between her and the United States could diminish or enlarge these rights. [Pollards Lessee v. Hagan, 44 U.S. (3 How.) 212, 228-229 (1845) (emphasis supplied). And see id. at 222-223.]
That's because it is the New American. But, they do give you a clue, they mention Ken Ivory.
The legal minds behind this include, but not limited to, Ken Ivory and Rob Natelson.
The groups behind it include, but not limited to, Montana Policy Institute, State Policy Network, ALEC, American Lands Council.
Some of the money behind it is public record but a lot of it is dark money and AFP/Koch Brothers are heavily involved.
Bundy was just a poster boy who went south on them and they had to pull the plug on him. AFP told Fox and the GOP to shut up then forced Nevada Senator Heller to walk it back, denying that he ever called Bundy a patriot and say that Bundy should pay up the money he owed BLM. Now, Bundy and the militia are back to Posse Comitatus as their only option and Clark County Sheriff Gillespie is ignoring them.
Its not just about land, but also the water.
In 1908 SCOTUS established Federal and Indian Lands Reserved Water Rights and this was expanded later by additional court decisions, so these federal land have a reserved water right, but if you convert them to state lands, those federal reserved water rights disappear.
The Colorado River states face serious problems and one of the big flashpoints is the pipeline carrying western Nevada water to Vegas. There are serious problems on the Texas Colorado River as well. The observable flows on the Colorado after the white man arrived tell one story but the tree rings and the archeologists looking at the Anastazi indians tell a different story
Here’s the actual Resolution of 1780.
“That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states ... shall be disposed of for the common benefit of the United States...
Couple comments, though I don’t claim to be an expert in this area.
“Disposed of for the common benefit of the United States” means, I believe, that the price of this land, when sold into private ownership, goes into the Treasury of the United States. I didn’t see anywhere in the Resolution where it stated that title to these “unappropriated lands” was to be handed over to the new states so they could sell it off. That wouldn’t be “for the common benefit of the United States,” would it? But it’s possible I’m misunderstanding something.
Also, note that the Resolution refers to “lands that may be ceded or relinquished to the United States, by any particular states.” The lands acquired later by the US under the Constitution west of the Mississippi were not “ceded ... by any particular states.” They were acquired by the US through treaties with France, Mexico and Great Britain, and by treaties with the Indian tribes.
This decision applies to “the navigable waters and soils under them”
It does not necessarily apply to title to all land within the state’s boundaries.
I’m still waiting for somebody to point to a reference where all remaining public land was transferred to ownership of a state at statehood, especially for states west of the Mississippi, where cession by other states was not an issue.
In MO, the one state I’m reasonably familiar with in this regard, federal public land was still being sold off by the US in considerable quantity through WWI, with some title transfers as late as the 60s.
Thanks. What do those “reserved water rights” mean, and if the land is transferred to state ownership, who gets the water rights?
I lived out west long enough to know that water and mineral rights are often owned and sold separately from land, and can hugely impact the value of that land.
>>”All controversies concerning the private right of soil claimed under different grants of two or more states, whose jurisdictions as they may respect such lands, and the states which passed such grants are adjusted, the said grants or either of them being at the same time.<<
That is not the issue with Western states. The state borders were formed when they became states. All land should have been surrendered to the new state.
Disposed of for the common benefit of the United States means, I believe, that the granting of land to the railroads should be viewed as being for the common good. I have no problem with that.
It’s the retention of the rest of the territorial lands that I see as illegal.
But the language in the decision covered all property,
"when each of the designated States in the territorial area achieved a population of 60,000 free inhabitants it was to be admitted 'on an equal footing with the original States, in all respects whatever.'"
"Alabama is, therefore, entitled to the sovereignty and jurisdiction over all the territory within her limits, "
I understand that is what you believe.
What I haven’t seen is evidence that this is or ever was required by Constitution or law.
No offense intended, but your belief as to what good policy should be, is in and of itself of no greater value than mine or anyone else’s.
If title to all unsold public lands transferred to IA, or MN, or KS at statehood, you should have no trouble finding proof of it. I haven’t been able to.
If it wasn’t transferred, the whole notion that the western states were peculiarly ripped off falls apart.
As explained in the post above with regard to the Resolution of 1780, sovereignty and jurisdiction are entirely different concepts from private title to land.
I understand your disagreement, and that is ok with me. So the following is not necessarily directed to you, but such that others can see it also ...
Justice John McKinley, wrote the Opinion of the Court..
“the right of Alabama and every other new State to exercise all the powers of government, which belong to and may be exercised by the original States of the Union, must be admitted, and remain unquestioned...; and that, once Congress itself erect[s] new States... the municipal sovereignty of the new States will be complete, throughout their respective borders, and they, and the original States, will be upon an equal footing, in all respects whatever.”
Since I won’t be the one arguing the issue in Court or before Congress I’m not going to stress over not know where the text is.
Thanks. I don’t claim to be an attorney, but it seems to me that “the municipal sovereignty of the new States” does not even imply ownership of all land within its borders.
BTW, ran across a really interesting overview of the history of federal land ownership. Unfortunately, it doesn’t specifically address the question of whether all land title was ever transfered at statehood.
How can a state be on equal footing when the Feds still own part of the sovereign state’s lands?
“Our government system is established by compact, not between the Government and the State Governments but between the States as Sovereign Communities.” By James Madison 1821
(This is what make the County Sheriffs the highest law enforcement officer in that County and gives him/her the authority to tell the BLM, the FBI or any other Federal Agency to get out of the County or they will be arrested and jailed.)
Thanks for the link. Also, for the record, I am also not an attorney. But even then, today, many attorneys and judges are just flat out wrong and many admit to being activist, and willfully decide to ignore previous law and are willing to create their own laws according to their own whims and emotions.
The specific case which I have been previously citing talks in great detail about title; and then seems to me to reference the complete sovereignty and jurisdiction and equal footing as an overarching argument.
The link you posted describes how the original 13 colonies became states. So the way I see it, when they became states, they recognized that their frontier lands were territories by practice and gave them up to the FedZilla. The 13 states had title and held sovereignty and jurisdiction to all properties within their boundary. As more territories joined the union and became states, they are supposed to hold title to properties and hold sovereignty and jurisdiction over all properties within their boundaries - per equal footing with the first 13 states.
I’ve broached this subject before, in other threads, and I think it needs to be brought up here again.
Reading through all the comments, I see lots of references to the Supreme Court and their decisions. Most people believe that the SCOTUS is the supreme arbiter on the legality of laws and regulations.
Wrong! WE are the supreme arbiters!
Case in point: There was a time in our own national history when it was perfectly legal to own, sell, beat or kill certain human beings based on their skin color. SCOTUS was perfectly comfortable with that, though more and more citizens were starting to have second thoughts. In time SCOTUS reversed itself. Why? Because laws and the courts merely reflect what the people want. When enought notice was taken of the inhumanity of slavery, it ended. Note: Lincoln did not end slavery with his Emancipation Proclamation, he only ended it in those southern states that had seceded. While it was not widespread in the North, it still existed for several years.
Anyone remember the Nuremburg Trials? A goodly number of guards from those concentration camps - when charged with crimes against humanity - pled “I was only following orders” right up until the trapdoor fell from under their feet. Of course those guards had had a real dilemma Choose to not follow orders and be killed and shove those Jews into the gas chamber and hope Germany might win the war. Murder was never a consideration because the German courts had already deemed it perfectly legal to kill Jews (and a few others).
So now here we are, waiting with bated breath for SCOTUS to pass judgement on some law. Is it legal for government agencies to field heavily armored SWAT teams to serve warrants - or not? Is it legal for the government agencies to maintain list of citizens who own fully automatic weapons - or not? Is it legal for government agencies to confiscate private property without cause - or not?
I could go on with a longer “...history of repeated injuries and usurpations” but these should be enough. And what are we going to do about them? Wait for SCOTUS to rule in our favor? Need I remind you that SCOTUS is a branch of the government. Would any of us expect a tree branch to wind itself around the trunk so tightly as to strangle it? To help readers I suggest they look back a couple of paragraphs and change some words:
“So now here we are, waiting with bated breath for SCOTUS to pass judgement on some law. Is it RIGHT for government agencies to field heavily armored SWAT teams to serve warrants - or not? Is it RIGHT for the government agencies to maintain list of citizens who own fully automatic weapons - or not? Is it RIGHT for government agencies to confiscate private property without compensation - or not?”
So, it’s up to you (and me) to decide what is right and legal. There will be pain for those who choose to buck the system but there’ll also be freedom for your kids and grandkids and isn’t that why we’re here?
When that is applied to an indian(s) treaty right to fish it is difficult to apply because it is not a specific amount of water, so it really becomes a minimum flow, or sets a minimum flow in the river.
Likwise, the flora and fauna on federal land or the flora and fauna that depend on federal water(water created by the feds impounding water) has a water right that is impossible to allocate for so it is also a minimum flow.
So during times of drought, a prior appropriation water right holder(possibly a farmer) would not get his water because if he did get his water, it would reduce the water in the stream to below the minimum flow.
A specific example is the delta smelt. Because of the drought, some farmers with junior water rights were denied water because of the minimum flow.
Same way with the conflicts a number of years ago on the Klamath River. In that case the Indians had a treaty right to fish. The federal wildlife refuge had a water right. And the suckers in the lake had a water right. OTOH, those farmers with junior prior appropriation rights were denied water. But those farmers with riparian rights kept their water.
So Bush cut off the water and there was a big die off of Salmon in the river.
If you convert the federal land to state land, then the minimum flow for the federal land doesn't apply.
The way the issue always play out is that one group says there doesn't need to be a minimum flow, that any drop of water not utilized is wasted. The other group says there has to be a minimum flow, but within this group there will be wide dis-agreement as to what the minimum flow should be. The second group sits at the table and negotiates a deal, but the first group that said no to a minimum flow doesn't get a seat at the negotiating table.
In the case of the Klamath river, they sat down and negotiated a deal on the entire watershed, which is now being implemented.
Thanks. I find the whole thing more than a little confusing.
Amen. We can read all this stuff, but unless you are a qualified/experienced lawyer looking at the Code Book, how can you or I say with certainty?
I thought about reading the entire FLPMA with amendments that is published at the BLM website, but at the very top it said that even though BLM put forth effort to make sure what was published was accurate, you shouldn't rely on the accuracy and should instead read it in the US Code Book.