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Re Property Clause – Oregon Association of Counties
Commissioner Larry Givens Umatilla County
216 SE Fourth St. Pendleton, OR 97801
I have had the opportunity to read the paper written by Ms. Susan Lea Smith dated January 22, 2016 and titled Federal Ownership of Land in Oregon and Other States West of the Mississippi wherein she critiques a paper written by Ms. Kris Anne Hall. I have not had the opportunity to read Ms. Hall’s paper but can gather the gist of her arguments from the critique of Ms. Smith. Ms. Smith’s paper was written at the request of the Legal Counsel of the Association of Oregon Counties. I write to you as one who shares your Association’s interest in public lands including the rights of States and the obligations of Congress with respect to these lands.
I find that each writer (Hall and Smith) is correct in some aspects of her argument but each writer is also in serious error at other critical points in her narrative. It would be unfair of me to make such a statement without offering examples to support it.
From Ms. Smith’s paper, I gather that Ms. Hall has argued that the public lands within the respective States are held by the United States “in trust” for the States which will be formed therein. On this point, Ms. Hall is correct. The U.S. Supreme Court has said as much: “Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory.” Shively v. Bowlby, 152 U.S. 1 (1894).
However, Ms. Hall apparently also says that the Equal Footing Doctrine requires that title in the public lands reverts to the State upon its admission into the Union. This is not true. The Equal Footing Doctrine has nothing to do with the transfer of title. Rather, the doctrine pertains only to political rights and sovereignty: “The ‘equal footing’ clause has long been held to refer to political rights and to sovereignty. See Stearns v. Minnesota, 179 U.S. 223, 245.” United States v. Texas, 339 U.S. 707 (1950). Political rights include those powers retained by the States under the 10th of the Bill of Rights, the guarantee of republican self-governance under the constitutional Guarantee Clause, and territorial sovereignty equivalent to that of the original States, which sovereignty was complete and undiminished: “Each (former colony) declared itself sovereign and independent, according to the limits of its territory.” “[T]he soil and sovereignty within their acknowledged limits were as much theirs at the declaration of independence as at this hour.” Harcourt v. Gaillard, 25 Wheat. 523, 1827.
A critical observation must be made at this point. The Equal Footing Doctrine requires that each State must have equal sovereignty but a given State cannot obtain that equality as long as the public lands remain under federal title. (The State’s sovereign powers of taxation, eminent domain, and laws regulating the conveyance of descent of title are held in abeyance with respect to public lands for so long as they remain under federal title.) Therefore, to satisfy the doctrinal requirement for equality of sovereignty among the several States the federal title in public lands must be extinguished. The doctrine, therefore, requires that the federal title be extinguished but there is no requirement whatsoever that the federal title be conveyed to the State upon its admission into the Union. The timing of disposal, the means of disposal, and the beneficiary of that disposal are matters left to the discretion of Congress. It must be noted, however, that extended retention of the public lands under federal title has been termed “wrong conduct” by the U.S. Supreme Court among others:
“(I)f Congress should determine that the great body of public lands within the state of Minnesota should be reserved from sale for an indefinite period it might do so, and thus the lands be exempted from taxation; and yet it cannot be imputed to Congress that it would discriminate against the state of Minnesota, or pass any legislation detrimental to its interests. It had the power to withdraw all the public lands in Minnesota from private entry or public grant, and, exercising that power, it might prevent the state of Minnesota from taxing a large area of its lands, but no such possibility of wrong conduct on the part of Congress can enter into the consideration of this question. It is to be expected that it will deal with Minnesota as with other states, and in such a way as to subserve the best interests of the people of that state.” Stearns v. Minnesota, 179 U.S. 223 (1900).
I turn now to the paper by Ms. Smith. Ms. Smith argues that the Article IV Property Clause pertains not only to federal territories but also to lands acquired by the United States under authority of the Article I Enclave Clause. At the same time, she argues that proper interpretation of the Constitution requires, in part, that we “consider the history and context surrounding the adoption of various constitutional provisions in order to discern the Founders ‘original intent’ in adopting the text’s language or the ‘original meaning’ of the text.” When one refers to the history and context in which the Property Clause was written, as Ms. Smith recommends, it is found that the Property Clause was written solely for the purpose of dealing with the unappropriated federal territorial lands. The agenda of the Constitutional Convention on August 18, 1787 reads, in part, as follows: “The propositions are as follows – To dispose of the unappropriated lands of the United State s.” Records of the Federal Convention, 1:247; Journal, 18 August. On August 30, 1787 the following motion was made and adopted with Maryland only objecting: “The Legislature shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the U. States; and nothing in this constitution contained, shall be so construed as to prejudice any claims either of the U. S. or of any particular State.” Records of the Federal Convention, 1:276; Journal, 30 August. The underlined portion of this motion is the constitutional Property Clause. It is clear from this record of the Convention that the Article IV Property Clause was written for the purpose of providing Congress with the constitutional authority and, therefore, the constitutional duty to “dispose of the unappropriated lands of the United States” and not for any purpose under or in furtherance of the Article I Enclave Clause. Ms. Smith’s proposition that the authority delegated to Congress under the Property Clause was intended by the Framers to extend to Article I Enclaves fails also on purely logical grounds. Why would the Framers extend Property Clause powers to federal enclaves when the Enclave Clause itself delegates to Congress “the power to exercise exclusive Legislation in all Cases whatsoever” over them? Would not any like power in the Property Clause be needlessly redundant? From this small bit of history it is plain that the Article IV Property Clause was written for the sole purpose of dealing with unappropriated federal territorial lands and not Article I enclaves.
Ms. Smith suggests that the words “other property” in the Property Clause were meant to include Article I Enclave Clause lands. I submit that these words were written not in reference to Article I enclave lands but in reference to former federal territorial lands that were subsequently situated within the confines of States and which we now refer to as “public lands.” Daniel Webster was the lexicographer for the Constitutional Convention. I cite to Webster’s definition of “territory” to support this view. From his 1828 dictionary, the word “territory” is defined as follows:
“A tract of land belonging to and under the dominion of a prince or state, lying at a distance from the parent country or from the seat of government; as the territories of the East India Company; the territories of the United States; the territory of Michigan; Northwest territory These districts of country, when received into the union and acknowledged to be states, lose the appellation of territory.”
Thus, when federal territorial lands were admitted as new States, and having lost “the appellation of territory,” the Convention, I suggest, referred to the remaining, unappropriated, federally held lands as “other property.” As mentioned above, this “other property” is today’s public lands. There is no logical or reasonable way to construe these two words as pertaining to Article I enclave lands.
Ms. Smith also says that we should consider “how the Constitution has been authoritatively interpreted by federal courts over the past two centuries.” On this point, I agree with Ms. Smith. However, the U.S. Supreme Court has not construed the constitutional Property Clause with complete consistency. In the words of the court, there has been “contrariety” in judicial opinion with regard to this clause. The purpose of the enclosed booklet is to examine this “contrariety” and, from this examination, determine which line of judicial reasoning is consistent with original intent. In addition, the booklet discusses the author’s theory as to how this “contrariety” of judicial opinion came about.
I offer this complimentary copy to you in the hope that it will broaden your understanding of the Framer’s original intent and the actual meaning of the plain words of the constitutional Property Clause.
Commissioner Bill Hall, Lincoln County
Mark Davidson, Union County
Judge Gary Thompson, Sherman County
THE ORIGIN AND PURPOSE
CESSION OF PROPRIETARY “RIGHT AND TITLE” IN PUBLIC LANDS IN THE TEXT OF STATE ENABLING ACT COMPACTS
by Bill Howell
In 2012 the Utah legislature issued a demand to Congress. By H.B. 148, the legislature demanded that federal title in most of the federal public lands in the State be extinguished and title in those lands be transferred to the State where they would become State public lands. Opponents of the demand quickly cited a provision in the State enabling act of 1894 whereby the State agreed to “forever disclaim all right and title” in these lands. As quickly, proponents replied that the “forever disclaim” language is followed by the words “and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States.”
The purpose of this paper is to summarize the history behind use of the phrase “forever disclaim all right and title” in State enabling act compacts. This summary involves several “pieces” of historical fact that must be “assembled.” It involves unappropriated former British Crown lands and cession of “portions” of these lands to the United States by seven of the original States, the Northwest Ordinance, admission of Vermont and Kentucky into the Union, admission of Tennessee as the first new State established out of federal territory and several early acts of Congress.
Former British Crown Lands and State Land Cessions
When the original thirteen States declared their independence on July 4, 1776, they also asserted claim to both proprietorship1 in and sovereign jurisdiction over the unappropriated British Crown lands lying within their asserted borders. For all practical purposes, these lands had become State public lands. These claims gave rise to divisive conflicts between the States. Congress sought to resolve these conflicts. By the resolution of October 10, 1780, Congress made five commitments to the States if they would cede “portions” of their unappropriated land claims it.2 Two of these commitments were that ceded lands would be “granted and disposed of for the benefit of all the Unites States” and disposal would be carried out by congressional “regulation.”
State Land Cession Compacts in Response to the Resolution of Congress of October 10, 1780
Between 1784 and 1802, seven States entered into land cession compacts with the United States in response to the terms of the resolution of October 10, 1780. Pursuant to these compacts, large “portions” of unappropriated former Crown land were ceded by the States to the United States. These lands became the first federal territories. The Virginia act of land cession became the basic model for all subsequent State land cession instruments. With this act, Virginia released to the United States “all right, title and claim, as well of soil as of jurisdiction, which the said Commonwealth hath to the territory or tract of country within the limits of the Virginia charter, situate, lying and being to the northwest of the river Ohio….” In other words, by these State land cessions the federal government became the sole proprietor of and the sovereign government over the ceded lands. And with this clear title, the United States is empowered and duty bound to transfer this title, over a reasonable period of time, to non-federal holders. The Virginia land cession compact affirms this federal duty, which Congress imposed upon itself by terms of its resolution of October 10, 1780, as follows: “That all the lands within the territory so ceded …shall be considered as a common fund for the use and benefit of … the United States … and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever.” The land-ceding States, including Virginia, retained the remainder of their unappropriated former Crown lands and over these lands these States retained full proprietary right and title and complete sovereignty and jurisdiction.
The Northwest Ordinance of July 13, 1787
Among other purposes, the Northwest Ordinance was written with the intent of reserving to the United States the exclusive right of disposal of the unappropriated lands ceded to them by the States. This reserved and exclusive right of disposal was express recognition of Congress’ promise to dispose of the ceded land which it set down in its 1780 resolution. This promise and exclusive duty to dispose of the unappropriated lands now belonging to the United States remained attached to the land even when portions of it would be “captured” within the external limits of new States and termed “public lands.” At Article IV the language of the ordinance in this regard is “The Legislatures of those districts, or new States, shall never interfere with the primary disposal of the soil, by the United States in Congress assembled, nor with any regulation Congress may find necessary for securing the title in such soil to the bona fide purchasers.”
Admission of Vermont and Kentucky
Vermont (1791) and Kentucky (1792) were admitted into the Union directly without enabling act compacts. Each of these States was considered a complete State because of their prior association with New York and Virginia respectively. The land of which these States are comprised was never ceded to the United States. Since the land in these two States was never federal territory, the United States never held proprietorship or “right and title” in it. Accordingly, these two new States, like their parent States, held proprietorship in, and sovereignty and jurisdiction over all of the land within their borders including the unappropriated “public” lands.
Admission of the State of Tennessee
Tennessee was the third new State admitted into the Union of States. It was the first new State established out of federal territorial lands. Tennessee did not have an enabling act compact. However, by an act of Congress, 1 Stat. 491, ch. 47, the State was admitted into the Union on June 1, 1796. By this act, Tennessee was admitted into the Union “on an equal footing with the original States in all respects whatever.” There was no provision in this act requiring that the new State “forever disclaim all right and title” in the public lands within its borders or that it “never interfere” with the regulations of Congress adopted for the purpose of disposing of those lands. Accordingly, for a decade after its admission, Tennessee claimed that the Equal Footing Doctrine entitled it to proprietorship (possession of right and title) in the public lands within its borders in addition to sovereignty and jurisdiction over them. In advancing its demand, Tennessee pointed to the fact that the original States, as well as Vermont and Kentucky, held proprietorship in the unappropriated former Crown lands within their borders. Tennessee apparently discounted the fact that by 1 Stat. 123, ch. 14, dated May 26, 1790, Congress had extended the benefits AND obligations of the Northwest Ordinance to the Territory of Tennessee.3 And by Article IV of this ordinance, as above, the legislature of the new State of Tennessee “shall never interfere” with the primary disposal by Congress of the public land within its borders. This language effectively reserves proprietorship in these lands to Congress but only for the purpose of their disposal. Parenthetically, in 1829, the State of Indiana, by resolution, returned to the same claim as that of Tennessee but to no apparent consequence.4
Congressional Response to Tennessee’s Demand
On April 18, 1806, ten years after Tennessee statehood, Congress enacted 2 Stat. 381, ch. 31. With this statute, Congress consummated an agreement5 between itself and the State of Tennessee settling the dispute. By this act, the parties mutually agreed that the United States would possess, as sole proprietor and subject to its disposal, all unappropriated public lands lying south and west of a particularly described line and the State of Tennessee would possess, as sole proprietor, all of the like lands lying north and east of the same line. The relevant language in this act is as follows:
Tennessee ceding to the United States: Tennessee declared “that all right, title, and claim which the State hath to the lands lying west and south of the line above described shall thereafter forever cease, and that the lands aforesaid shall be and remain at the sole and entire disposition of the United States and shall be exempted from every disposition or tax made by order or under the authority of the State of Tennessee while the same shall remain the property of the United States, and for the term of five years after the same shall be sold;
The United States ceding to the State of Tennessee: “The United States do thereupon cede and convey to the State of Tennessee, all right, title and claim, which the United States have to the territory of lands lying east and north of the line herein before established,….” … “And the said State of Tennessee shall thereupon have as full power and authority to issue grants and perfect titles of all lands lying east and north of the before described line … as Congress now have ….”
Advent of Disclaimer Wording in State Enabling Act Compacts
In consequence of the decade-long dispute with the State of Tennessee over the possession of proprietary right and title in the unappropriated public lands remaining within its borders, and to prevent recurrence of this dispute in the future, Congress began entering text into State enabling act compacts expressly requiring that the inhabitants of new States either “never interfere” with the regulations of Congress adopted for the purpose disposing of these lands or, in the alternative but to the same effect, “forever disclaim all right and title” in those lands.
Interchangeable Use of “never interfere” or “forever disclaim all right and title” in State Enabling Act Compacts
As the western settlement advanced, State enabling act compacts varied in their use of the terms “never interfere” with the regulations of Congress for conveying title in public land to “bona fide purchasers” and “forever disclaim all right and title” in the public lands lying within State borders. President Jackson, in his December 5, 1833 veto message to the U.S. Senate, recognized that these “disclaimer” terms were used interchangeably and to the same effect:
“This condition (never interfere) has been exacted from the people of all the new territories; and, to put its obligation beyond dispute, each new State, carved out of the public domain, has been required explicitly to recognise (sic) it as one of the conditions of admission into the Union. Some of them have declared through their conventions, in separate acts, that their people ‘forever disclaim all right and title to the waste and unappropriated lands lying within this State, and that the same shall be and remain at the sole and entire disposition of the United States.’”
The following chart illustrates that, insofar as State enabling act “disclaimer” language is concerned, it is of no consequence whether a new State was established out of lands ceded by an original State or out of lands acquired directly by the United States from a foreign nation.6 A State enabling act compact may be written with either “never interfere” or “forever disclaim” as the States’ disclaimer of proprietary right and title in the public lands within its borders. The object of these alternative approaches is the same. This object is to secure to the United States what President Jackson referred to as “the unshackled power to execute in good faith the compacts of cession made with the original States.” It should be noted that neither of these rhetorical approaches diminishes a State’s claim to sovereignty and jurisdiction over the public lands within its borders, nor could they under the Equal Footing Doctrine.7
It is noted that at least four States besides Tennessee were established out of federal territorial lands without the benefit of an enabling act compact: Idaho, Kansas, Oregon and Wyoming. Having witnessed the requirements for admission into the Union that were placed upon other new States, these States adopted constitutions acceptable to Congress and were subsequently admitted into the Union. Clearly, the procedures followed by Congress for admitting new States varied in some particulars. However, two facts remain constant with the admission of each new State; and these facts remain constant simply because they are functions of immutable constitutional dictates. These facts are: 1) Pursuant to the Article IV Admissions Clause, each State is admitted into the Union upon an equal footing as to political rights and sovereignty with the original States8 including territorial sovereignty and jurisdiction9 and, 2) Pursuant to the Article IV Property Clause, Congress is constitutionally burdened with the responsibility to extinguish the federal title in all pre-statehood territorial and post-statehood public lands because the power delegated by this clause is “to dispose” and not to retain.10 Congress cannot do the opposite of its delegated powers other than through an “exercise of arbitrary and intolerable power.”11
Conclusion: The origin of disclaimer language in State enabling act compacts can be traced to the decade-long assertion by the State of Tennessee that proprietorship in the public lands within its borders transferred to the State upon the instant of its admission into the Union of States; and this transfer, the State asserted, occurred as a consequence of the Equal Footing Doctrine. Tennessee had apparently discounted the fact that the Northwest Ordinance reserves to the United States exclusive authority to dispose of federal territorial and public lands and that this ordinance was extended to the Territory of Tennessee in 1790 by 1 Stat. 123; and reservation of exclusive authority to dispose of the federal territorial and public lands necessarily entails reservation of proprietary right and title in the land. The Equal Footing Doctrine, by contrast, only ensures new States equality with the original States as to political rights and sovereignty. The sole purpose of State enabling act disclaimer language is to clarify proprietorship. Disclaimer language provides the United States with uncontested title in the public lands remaining within the confines of new States. In the words of President Jackson, enabling act disclaimer language provides the United States with “the unshackled power to execute in good faith the compacts of cession made with the original States” including disposal of the public lands by means of congressional regulation.
1. Definition of “proprietorship”: possession of exclusive right or legal title in anything.
Black’s Law Dictionary, 4th ed. 1951.
- Elements of the Resolution of Congress of October 10, 1780:
(A) all ceded lands “shall be granted and disposed of for the benefit of all the United States.”
(B) all ceded lands would be “formed into distinct republican States.”
(C) new States formed within the territories would “have the same rights of sovereignty, freedom and independence as the other States.”
(D) the United States would “guaranty the remaining territory of the said States respectively.”
(E) all ceded lands shall be “granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them.”
On March 2, 1805, Congress enacted 2 Stat. 322, ch. 23. With this statute Congress extended the principles of the Northwest Ordinance to the Territory of Orleans thereby providing that “the territory of Orleans shall be entitled to and enjoy all the rights, privileges, and advantages secured by the said (Northwest Ordinance) and now enjoyed by the people (inhabiting States carved out of the Northwest Territories).” Also by this act, Congress established precedent for extending the benefits and obligations of the Northwest Ordinance to territories acquired by the United States directly from foreign nations including Spain (Florida), Mexico (Mexican cession and purchase) and Great Britain (Oregon Territory). The Northwest Ordinance is, therefore “a continent-wide expression of the rights of Americans.” Hall, Kermit L., ed. The Oxford Companion to American Law. New York: Oxford University Press, 2000, 64. “(T)he Northwest Ordinance established the basic framework of the American territorial system.” Hall, Kermit L., ed. in chief. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, 600.
4. In 1829, the State of Indiana adopted a resolution asserting the same claim as that asserted by the State of Tennessee and on the same Equal Footing grounds. This resolution was submitted to the U.S. Senate on Feb. 10, 1829. In pertinent part, this resolution of Indiana reads, “Resolved by the general assembly of the State of Indiana, That this State, being a sovereign, free, and independent State, has the exclusive right to the soil and eminent domain of all the unappropriated lands within her acknowledged boundaries, which right was reserved for her by the State of Virginia, in the deed of cession of the Northwest Territory to the United States, being confirmed and established by the articles of confederacy and the constitution of the United States.” (American State Papers – Public Lands, 20th Cong., 2d Session, No 733, 630) This resolution was also submitted to Ohio, Illinois, Missouri, Mississippi, Louisiana, and Alabama requesting them to “adopt similar measures if they should deem it expedient.”
5. For further reading if desired, the 1806 compact was discussed in Burton’s Lessee v. Williams, 16 U.S. 529 (1818).
6. “Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory.” Shively v. Bowlby, 152 U.S. 1 (1894).
7. “On (the admission of Illinois into the Union) she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original states. She was admitted, and could be admitted, only on the same footing with them. The language of the act of admission is, ‘on an equal footing with the original states in all respects whatever.’ Equality of constitutional right and power is the condition of all the states of the Union, old and new.” Escanaba & Lake Michigan Transp. Co. v. City of Chicago, 107 U.S. 678 (1883). “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 ….” Coyle v. Smith, 221 U.S. 559 (1911) citing Pollard v. Hagan, 44 U.S. 212 (1845).
8. “The ‘equal footing’ clause has long been held to refer to political rights and to sovereignty.” See Stearns v. Minnesota, 179 U.S. 223, 245.” United States v. Texas, 339 U.S. 707 (1950).
9. “Each (former colony) declared itself sovereign and independent, according to the limits of its territory.” “[T]he soil and sovereignty within their acknowledged limits were as much theirs at the declaration of independence as at this hour.” Harcourt v. Gaillard, 25 U.S. 523 (1827).
10. “It may be admitted that a power given for one purpose cannot be perverted to purposes wholly opposite, or besides its legitimate scope.” 2 Story, Commentaries on the Constitution. sec. 1077.
“The power can only be exercised as prescribed.” Downes v. Bidwell, 182 U.S. 244 (1901). “The power being given, it is the interest of the nation to facilitate its execution.” McCulloch v. Maryland,17 U.S. 316 (1819).
11. Senator Clay, Gales and Seaton’s Register, p. 1095, June 20, 1832.
November 18, 2015
Bill Howell The Boston Tea party of 1773 was a protest against “taxation without representation.” The battles at Lexington and Concord were, in part, resistance to the “Intolerable Acts” of 1774. These were acts of the British Parliament which revoked the historic right of self-government in the Massachusetts Colony and placed that power in the hands of a governor appointed by and answerable only to His British Majesty. Mahatma Gandhi employed what he called polite insistence on the truth to win Indian independence from British hegemony. Gandhi’s tactics inspired civil rights and freedom movements around the world including the American civil rights movement of the 50′s and 60′s. The common thread in these popular movements is opposition to unjust and/or immoral power by a few on behalf of their larger community. Along their way, those who have dared to challenge the legitimacy of a centralized power have been punished and branded as “criminals” by those who wield this power. In San Juan County, Utah, the Bureau of Land Management issued a “decision” to close an area to unauthorized off road use. This area included a county claimed vehicular right-of-way. County Commissioner Phil Lyman and City Councilman, Monte Wells, have been convicted of trespass for having inspired a protest ride to the end of a pipeline laying within this vehicular right-of-way. Lyman and Wells have been vilified by federal prosecutors as “criminals.” Their punishment is pending. Their non-violent act differs in no significant respect from the acts of American patriots in the 1700′s, from Gandhi in the early part of the 20th Century, or from the acts of lunch counter sitters in the 50′s and 60′s. How so? one might ask. To answer this question, we need only consider, first, the extent of a state’s right to exercise sovereignty and jurisdiction over the lands within its borders and, second, the moral obligation of the United States to honor its contracts. As to a state’s right to exercise sovereignty and jurisdiction over the land within its borders, the U.S. Supreme Court, in 1845, said that under the Equal Footing Doctrine new states are entitled to exercise those powers over all of the land within their borders including the public lands with only two exceptions. New states may not tax the public lands and they may not interfere with their disposal by Congress. As to the obligation of contracts, the U.S. Supreme Court has said that “a grant is a contract executed” and that the granting party is “estopped by his own grant.” In the same tone, Alexander Hamilton said that when a government enters into a contract it “deposes its constitutional authority” and exchanges the character of legislator for that of “a moral agent with the same rights and obligations as an individual.” In 1866 Congress expressly “granted” by statute the right to construct highways over public lands not reserved for public purposes. In 1976 Congress presumes to have revoked the 1866 grant. Yet, in a just world, if the Court and Hamilton are correct, the right granted in 1866 is “a contract executed” and, therefore, irrevocable. This means that the states remain empowered under the grant to construct highways over unreserved public lands; and the right to construct highways certainly implies the right to use and to maintain them. This brings us back to the circumstances in San Juan County. Commissioner Lyman and Councilman Wells are asserting the sovereign territorial rights of the State of Utah which include the right of the state, under the irrevocable grant, to construct, use, and maintain highways over unreserved public lands. The public lands at issue in the San Juan case are unreserved. At a minimum, then, it is arguable that the federal position closing the vehicular right-of-way is as unjust and as immoral as the tyrannical “Intolerable Acts” issued against the colony of Massachusetts in 1774, the denial of independent sovereignty to the Indian sub-continent in the early years of the last century, and the denial of equality on the basis of race. In this light, the actions of Commissioner Lyman and Councilman Wells are as honorable and as patriotic as the acts of the Minutemen at Lexington and Concord, of Gandhi in India, and of civil rights marchers in the United States. Like those who have gone before them, Lyman and Wells and the other 300 people who participated in this protest have done nothing less than stand for the rights of the larger community of citizens of San Juan County and of the State of Utah as a whole. They stand against a modern-day tyranny that denies our territorial sovereignty as well as the solemn obligations of contract.
RS 2477: The More Fundamental Question
In October of this year (2015) the U.S. Supreme Court denied a petition from the State of Utah for a hearing of its demand for possession of title to a list of roads crossing public lands. The State asserts a claim to the roads under authority of Revised Statute 2477 which, in its entirety, reads “The right-of-way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted.” Congress presumes to have revoked and taken back this express grant by legislation passed in 1976.
On October 13, 2015 Utah Fox 13 News reported that the “fundamental question” asked by the Utah Attorney General’s Office was this: “Are they (these certain roads in the State) owned by the federal government? Or are they owned by the State under what is commonly known as ‘R.S. 2477,’ a federal law that granted ‘the right of way for the construction of highways over public lands, not reserved for public uses’”?
With due respect to the abilities of the Attorney General’s Office, there is a more “fundamental” question than the one reportedly asked. And, as the question asked is arguably not the “fundamental” RS 2477 question, it is not surprising that the nation’s highest court denied a hearing to the State’s petition.
The more “fundamental” RS 2477 question is this: “Does one sovereign have the right to strip from another sovereign that which the one has expressly granted to the other?”
This more “fundamental” question elevates the dispute from one in the nature of common proprietors contending over property to one of the relationship between two sovereigns contending over the exercise of sovereign power. Questions of sovereign power and its division between the federal and State governments are fundamental to the definition of our federal system. As such, they are among the highest order of duty for resolution by the United States Supreme Court.
If it is determined by the court that the State may be stripped of an expressly granted sovereign right to construct “highways” (ways of passage open to the public) over its unreserved public lands, then it is safe to say that there is not one vestige of independent sovereign State power that may be exercised in those places. In the instance of Utah, this exclusion of independent State sovereignty extends over some 67% of the State’s territory. In this case, it must then also be said that these lands are in no way part of the sovereign and jurisdictional State of Utah. And this being the case, it can in no way be said that the State of Utah has been admitted into the Union of States upon an equal footing with the original States as is its constitutional right. From this reasoning, it is clear that there is much more at stake within the RS 2477 question than title to a set of “highways” over our public lands. That which is at stake is statehood itself.
The Obligation of Congress
To Extinguish The Federal Title In All Public Lands
In A Nutshell
The nineteenth century Territory of Orleans roughly corresponds to the present day State of Louisiana. This territory was not ceded to the United States by one of the original States. It was acquired directly by the United States through purchase from France in 1803. By the Act of March 2,1805 (2 Stat. At L. 322, chap. 23), Congress provided that the inhabitants of the Territory of Orleans “shall be entitled to and enjoy all the rights, privileges, and advantages secured by the (Northwest Ordinance)….” Thus, the Territory of Orleans was placed “exactly in the position which it would have occupied had it been within the boundaries of the Untied States as a territory at the time the Constitution was framed” (Downes v. Bidwell, 182 U.S. 244, 1901).
And what was the “position” of the territories held by the United States “at the time the Constitution was formed?” That position was defined by four promises made by resolution of Congress in October 1780 for the benefit of every new State that would be erected out of those original territories. Those four promises remain binding and include: (1) The territories would be settled and formed into distinct republican States. (2) The new States erected therein would be admitted into the Union and possess the same rights of sovereignty, freedom and independence, as the other States. (3) The territorial lands would be granted and disposed of for the common benefit. (4) Disposal would be accomplished through regulations adopted by Congress for that purpose.
By the Act of Congress of March 2, 1805, these four congressional promises were extended to and became the entitlements of Louisiana. And as a matter of equity and constitutional uniformity, these four promises became the entitlement of every other new State established out of federal territories acquired directly by the United States from whatever source and by whatever means: “Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory” (Shively v. Bowlby, 152 U.S. 1, 1894). Federal territories acquired from sources other than the original States include the Louisiana Purchase, the Mexican Cession, the Oregon Territories, Alaska and the Florida Cession. This is to say that the promise of disposal of the federal territorial lands extends to every federal territory regardless of its origins. There is no allowance whatsoever for extended retention of these federal territorial lands in federal ownership, much less for their retention under permanent federal title.
The congressional promise to dispose of federal territorial lands was enshrined in the U.S. Constitution at Article IV, sec. 3, clause 2, the Property Clause. By this clause, Congress is empowered to “dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” And as to the powers delegated by “We the People” to the federal government in our Constitution, “It must have been the intention of those who gave these powers, to insure, so far as human prudence could insure, their beneficial execution” (McCulloch v. Maryland,17 U.S. 316, 1819).
Fulfillment of the promises made by Congress to the new States in its resolution of October 1780, including most prominently extinguishment of the federal title and disposal of the territorial lands, is essential to the constitutional equality between every new State and the original States: “Whenever the United States shall have fully executed these trusts, 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” (Pollard v. Hagan, 44 U.S. 212, 1845).
Considering RS 2477 in a Different Light September 23, 2015
by Bill Howell
In 1866 under Revised Statute 2477, Congress issued a general grant of right-of-way for the construction of highways (public roads) over unreserved public lands: “The right-of-way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted.” In 1976, with passage of the Federal Land Policy and Management Act (FLPMA), Congress presumes to have revoked that express grant. The following question is posed in response to this alleged congressional revocation: If Congress can revoke the express grant of right-of-way issued under RS 2477 might it also, at its discretion, revoke the school and institutional trust land grants set down in the several state enabling act compacts? The two grants differ only in their object. The trust land grant is one of fee title in particular and identified tracts of public land. The RS 2477 grant is not one of land itself but of a right to do a particular thing in a particular place. While the two grants differ as to their object, they are identical as to their legal foundation. Both grants were made by congressional statute. Both grants expressly identify the lands subject to the grant. Neither grant provided terms for revocation or termination. Few if any would argue that Congress might possess authority to revoke or terminate the trust land grant, but no one has contested the alleged revocation of the RS 2477 grant.
The U.S. Supreme Court has said that a grant “is a contract executed,” (Fletcher v. Peck, 10 U.S. 87, 1810, citing Blackstone). It is unlikely that a “contract executed” would be revocable. Therefore, if Congress believed that it could revoke the RS 2477 grant, it must also have believed that the statute was something less than a “contract executed.” But the plain words of the statute are that a “right-of-way” is “hereby granted.” The question then becomes this. How does one modify what by clear and plain words appears to be a “contract executed” such that it then appears to be something short of “executed” and, therefore, less than an actual grant?” Enter the notion of “perfection.”
It is now maintained that a prospective beneficiary under RS 2477 must actually construct a “highway” in order to “perfect” the grant. In legal terms, the word “perfect,” including its variants such as “perfection,” means “to complete, to finish, or to execute and render enforceable,” (Black’s Law Dictionary, 4th ed). Under this notion of “perfection,” no actual grant is completed, finished, or enforceable under the plain words of the statute alone. Rather, “perfection” means, paradoxically, that a grant issues only after a “highway” is actually constructed. But if RS 2477 requires that a prospective grantee actually construct a “highway” in order for a grant under RS 2477 to be “complete, finished and enforceable,” the same requirement for “perfection” must also apply to grantees under federal educational trust land grants. And yet, no one has suggested that trust land grants require “perfection” in order to establish the grantee’s claim to the authorized sections. The words of the trust land grant in the Utah enabling act, by way of illustration, are “That upon the admission of said State into the Union, sections numbered two, sixteen, thirty-two, and thirty-six in every township of said proposed State, …, are hereby granted to said State for the support of common schools, ….” It was only necessary that those particular sections be located by survey. Survey identifies the physical location of the granted tracts, but it does not establish the State’s claim to those tracts. The words of the grant alone establish the State’s claim. If the subject lands happened to lie within a particular federal land reservation, “in lieu” lands were to be taken. Federal reservations were not allowed to alter the quantum of land authorized under the grant and, thus, claimed by the grantee State. The operative words of the trust land grant are “are hereby granted.” The operative words of the RS 2477 grant are “is hereby granted.” If no further action or “perfection” was required of the trust land grantee in order to establish a “complete, finished, and enforceable” claim to the subject lands or lands “in lieu,” why do we accept the notion that further action or “perfection” is required of grantees under RS 2477?
Despite the equivalence of their statutory origins and the apparent functional equivalence of their operative words, the RS 2477 grant and the school trust land grant have been treated differently with the passage of FLPMA. As stated above, Congress presumes to have revoked the express and unequivocal grant issued under RS 2477. This act of Congress gives rise to another important question: “How can a plain and express grant be sophisticated into no actual grant at all but, rather, a revocable ‘invitation’ to future action on the part of prospective grantees? The answer to this question apparently lies in the words now being used to describe that which was otherwise, by a common reading of the statute, expressly granted.
The idea of “perfection” converts that which was, by a common reading of the plain words of the statute, an accomplished grant upon the instant of the statute’s passage, into an “offer” requiring subsequent action or “acceptance” on the part of another to become a complete, finished, and enforceable grant. By this reasoning, every “highway” constructed pursuant to RS 2477 is a separate and distinct “perfected” grant. But the plain words of the statute disprove the idea of a requirement for subsequent “perfection and a multitude of grants. The words of the statute are clear that a singular grant is issued (“the right-of-way”), and this singular grant is intended to be accomplished with finality upon passage of the statute by Congress (“is hereby granted”).
The idea that Congress intended to create a bifurcated process of “offer” and “acceptance” in the form of a contract under RS 2477 defies the plain language of the statute. As such, the notion of required subsequent “perfection” savors of legalistic sophistry. Had Congress intended to establish such a process, it is clear that it knew how to do it. The Homestead Act serves as case-in-point.
The Homestead Act established a process whereby prospective land claimants might demonstrate certain improvements to a defined tract of public land over a defined period of time. If the conditions set forth in the Act were met, a federal land patent would be granted to the claimant. By its nature, the Homestead Act made an “offer” subject to certain conditions while the prospective claimant demonstrated “acceptance”through his actions over the time and in the place prescribed. If and when the conditions of the “offer” were met, a land patent was granted. FLPMA revoked the Homestead Act. In so doing, it revoked only the “offer.” No federal grant or other non-federal right in the land was affected. The same cannot be said for Congress’s presumed revocation of the RS 2477 grant.
The legal sophistry of “perfecting” the RS 2477 grant by way of actual construction suggests that, like the Homestead Act, nothing passed upon enactment of the statute. This sophistry suggests that, like the Homestead Act, RS 2477 merely authorized a process with the actual grant taking place only after a particular highway was constructed and, thereby, demonstrating “acceptance.” Under this interpretation of the statute, its revocation, like that of the Homestead Act, would be nothing more than revocation of a process and not the revocation of any actual granted sovereign right in the unreserved public land. But RS 2477, in its spare nineteen words, did not initiate a process. For this reason, the statute did not require future action by a claimant in order to “perfect” the grant. As with the school and institutional trust land grants, the text of RS 2477 is the grant. As proof of this statement, it is well known and uncontested that highways were built across the West for more than a century following enactment of the statute with no further action being taken by Congress or by the federal land management agency; no further action, that is, until the words “offer” and “perfection” entered into the RS 2477 lexicon.
When Congress presumed under FLPMA to have revoked the RS 2477 grant, it presumed to have taken back that which was expressly granted. This is unacceptable. The grant of a sovereign does not take away from that sovereign any more than what was expressly granted but it does take away that which is expressly granted:
“All grants of the crown are to be strictly construed against the grantee, contrary to the usual policy of the law in the consideration of grants, and upon this just ground: that, the prerogatives and rights and emoluments of the crown being conferred upon it for great purposes, and for the public use, it shall not be intended that such prerogatives, rights, and emoluments are diminished by any grant, beyond what such grant, by necessary and unavoidable construction, shall take away.” Shively v. Bowlby, 152 U.S. 1, 1894, The Rebeckah, 1 C. Rob. Adm. 227, 230. “Many judgments of this court are to the same effect.” Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544-548; Martin v. Waddell, 16 Pet. 367, 411; Central Transp. Co. v. Pullman’s Palace-Car Co., 139 U.S. 24, 49, 11 S. Sup. Ct. 478.
The following quote is also precisely relevant to the RS 2477 question: “Nothing passes a perfect title to public lands, with the exception of a few cases, but a patent. The exceptions are, where Congress grants lands, in words of present grant,” (Wilcox v. Jackson, 13 Pet. 498, 516 (1839). If a “present grant” can pass “perfect title” in land, then certainly a “present grant” can also pass a particular right in land as well. By the words “is hereby granted,” RS 2477 was nothing if not a “present grant.” And if a granted “perfect title” in land cannot be revoked by the granting sovereign, then neither can a granted right in land be revoked.
From the analysis above, it would seem conclusive that an express grant of “right-of-way” to “construct highways” over “unreserved public lands” cannot be revoked as Congress presumes to have done under the Federal Land Management and Policy Act of 1976. Accordingly, any passage way over unreserved public lands that a State might either construct or claim as a public “highway” is a valid sovereign claim of the State under the “complete, finished, and enforceable” RS 2477 grant. Highways over unreserved public lands which are claimed by a State are, therefore, physical manifestations of independent State sovereignty. Maintenance and use of these highways are, therefore, actions subject to sovereign State regulation and State law. Violations of State laws associated with State highways must be adjudicated in State courts. Accordingly, any action by Congress or a federal land agency to alter or direct the construction or use of a claimed State “highway” is a direct challenge to State sovereignty.
A San Juan County, Utah, commissioner and one county resident have recently been convicted of violating a road closure decision issued by the Bureau of Land Management. The road at issue is claimed by the County, a subdivision of the sovereign State, as a public highway. Apparently the sole question entertained by the court was simply whether the agency’s closure directive was violated. But there is a much more fundamental question which, apparently, has not been raised or litigated. That question is simply this: Does Congress possess the authority to strip the States of a granted sovereign right to build and declare public highways as the public need requires upon unreserved public lands? This is a question of greater than local interest. It is a question that goes to the heart of independent State sovereignty and constitutional federalism:
“Clearly, Congress could exact of the new State the surrender of no attribute inherent in her character as a sovereign independent State, or indispensable to her equality with her sister States, necessarily implied and guarantied (sic) by the very nature of the Federal compact. Obviously, and it may be said primarily, among the incidents of that equality, is the right to make improvements in the rivers, water-courses, and highways, situated within the State.” Withers v. Buckley, 61 US 84, (1857).