Utah’s Transfer of Public Lands Act

The cornerstone

Utah’s Transfer of Public Lands Act

The matter of disposal

By Stephen L. Wilmeth

             When the U.S. Department of Interior can be quoted as saying “(Utah’s Transfer of Public Lands Act) is nothing more than a political stunt”, Americans must be profoundly concerned.

            The Framers and Founders had a different view of private property. Jefferson’s preference of “life, liberty, and property” reflects something much different.

            I am a member of the body of citizens who believe the Constitution was written with the intent an engaged and sovereign citizenry can read and understand it. This belief is driven by conviction, but history is dotted with references that describe that very thing. The Frenchman, Alexis de Tocqueville, came away from his American visit awestruck by the young nation’s common frontier citizenry’s understanding and defense of their founding document. Those families may not have had much, but they could read their Bibles and they could debate the fine points of their Constitution.

            As such, I will submit the matter of federal land disposal, honored and carried out in each state east of the 100^th Meridian, is not some esoteric debate or period oversight. Neither is it a silent constitutional issue with missing phrasing that must be deducted by legal scholars and case law. Rather, it is there and represented in chosen words.

            The revolutionary cornerstone

            The Enclave Clause and the Property Clause are the extent of the Constitution’s references to the matter of public lands. Those lands, lands acquired by the federal government variously, were the very vehicle to vest the new cornerstone, the sovereign citizen, in the American experiment.

            The concept was revolutionary.

            Never before in history had such an idea been promulgated much less acted upon. The idea was completely contrary to anything known, and, yet, it was the most simplistic act of dignity ever offered. It was the ultimate gift of human respect and courtesy.

            In the powers granted to Congress (Article I, Section 8), the Enclave Clause [17] set forth the authority to establish a legislative district (District of Columbia), and, with that states’ approval, the purchase of properties for the purpose of erection of forts, magazines, arsenals, dockyards, and needful buildings. The actual words were [17] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;

            In the relationship of the federal government to the states (Article IV, Section 3), the Property Clause (2) gave the federal government the authority to dispose of property and make all “needful rules and regulations respecting the Territory or other property belonging to the United States”. The actual words were [2] The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice and Claims of the United States, or any particular State.

            The pragmatic underpinnings

            Unlike the elected leaders of today, the Founders had a great aversion to debt. That, along with the elevated roll in the sovereign citizen’s property right, formed the bookend tenets for accelerating the disposal of the public lands.

The young nation’s war debt in 1791 was $75,463,476. That was a huge amount of debt for the fledgling republic. The matter of disposal, therefore, took a prescribed bifurcated course. The sale of the land was used to reduce the debt, and, at the same time, relied upon to accelerate the economy in the hands of the citizenry through enterprise development, the collection of taxes, and the creation of wealth. The sovereign citizen was the driver and the goal was to create a vested citizenry that was self reliant and industrious.

In an approach foreign to today’s societal standards, the sale of the land was not predicated on extracting the highest price. Rather, it was driven by what price point it took to trigger the purchases.

Andrew Jackson played a pivotal roll in maintaining the integrity of that intent into the 19^th century. He gave us the best understanding of the foregoing in a message to Congress when he referenced the benefit to new states and the union when “… the price of these lands shall be reduced and graduated, and that after they have been offered for a certain number of years the refuse remaining unsold shall be abandoned to the states …”

In other words, it wasn’t what Congress could extract from the citizenry that was most important. It was what price point it took to accelerate the private placement of the lands in order to reduce debt and stimulate the economy.

Hasn’t the mentality of the elected leadership of our nation changed completely?

Disposal high jacked

President Jackson’s tenure must also be described as a watershed period in our history in the matter of disposal of public lands, but the change wasn’t his intention. On the contrary, he was staunchly opposed to any alteration of what had become a compact based duty to dispose of such lands. His stance supported the 1780 congressional resolution which was structured around the words “… (public lands) shall be disposed of for the common benefit of the United States …”

In fact, he threatened a pocket veto of legislation that reneged on the compact duty to dispose of lands for the reduction of debt and the acceleration of state economies when funds from land sales were going to be diverted into certain general federal purposes rather than promises made to the states.

His words in that address clearly underwrite the dilemma western states have too long experienced. “… it can not be supposed the compacts intended that the United States should retain forever a title to lands within the States …,”  he said.

The Jackson era may actually have contributed to the lapse in Congressional discipline in adhering to the compact standard when national debt is scrutinized. If a president is judged solely on retirement of national debt, Jackson must be characterized as the best of all presidents. The national debt in the last year of his presidency stood at $37,733, the lowest outstanding national debt in the nation’s history.

As a result, the question must be asked. Was the absence of debt a motivating factor that swayed Congress to alter its long standing adherence to disposal of public lands? If that proved to be true, we must surmise the adherence to the matching bookend standard, the self reliant citizen, was neglected. If that was the case, the matter of the cornerstone of the experiment was starting to suffer from the self imposed importance of congressional leadership and … the attrition of originalist, indefatigable presidents.

The modern corollary

 The western states, states west of the 100^th Meridian, became states in the decadence of the disposal era of public lands. Regardless of the language in their enabling legislation reflecting prior generation state entries, the equal footing offered to eastern states was denied.

There are huge economic consequences.

In the landmark action taking root in Utah for the relinquishment of federal claims to title of their lands, legal arguments and public education are being pursued with steadfast patience. One of their arguments is the premise their enabling legislation wasn’t a one sided agreement whereby the state gave up all its rights for the privilege of statehood. On the contrary, legislation was a bilateral contractual agreement meaning the federal government has a responsibility as well as the state. In no stretch of the imagination would the state have disclaimed all rights set forth in the legislation with no corresponding duty of the federal government to dispose of the public lands similarly to earlier state entries into the Union.

Utah entered on the basis of the backdrop of an ethic of disposal. They were counting on many things which included the legislative covenant of the receipt of 5% of the lands sales upon such disposal.

History, contract based theory, general principles of Federalism, the Pollard-based interpretation of the Property Clause and the resulting Equal Footing Doctrine in the cession of Alabama to the United States to satisfy Revolutionary War debt, and other case law are all being used to make the case, but the paradigmatic shift toward federal land retention has long been the prevailing model.

Remember the original intent. The reduction of debt and acceleration of the economy by empowering the American citizen remain … the most simplistic and sincere blessings of liberty.

Stephen L. Wilmeth is a rancher from southern New Mexico. “In no reasonable leap of faith or learned discourse does the Constitution extend authority to Congress to retain 61% of the state lands west of 100^th Meridian.”

For more information on transferring public lands, including some excellent videos, see American Lands Council.