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).

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