Speaking Truth to Illegitimate Power

Speaking Truth to Illegitimate Power
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

RS 2477: The More Fundamental Question
P. Henry

October 2015

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 Obligation of Congress
To Extinguish The Federal Title In All Public Lands
In A Nutshell
P. Henry

October 2015 

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).