Re Property Clause – Oregon Association of Counties

Commissioner Larry Givens Umatilla County
216 SE Fourth St. Pendleton, OR 97801

Commissioner Givens,

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.

Regards,
Bill Howell
cc:
Commissioner Bill Hall, Lincoln County
Commissioner
Mark Davidson, Union County
Judge Gary Thompson, Sherman County