The Lock

Equal Sovereignty

The Lock

Utah as the pathfinder

By Stephen L. Wilmeth

            I spent a recent day in deep reflection.

            It started with a gift from my uncle. It was a compact, but relatively heavy package that turned out to be an old combination lock. I remembered its brass and steel construction immediately, but the note attached elevated its history. It is an old Sesamee brand lock that dates from the early years of the 20^th Century. It has a three digit combination, and, even as a youngster, I knew what that was. For years, the lock hung on the gas tank at my maternal grandparents on Bell Canyon. If I needed to put a gallon or two in a 9N to go somewhere, I opened it without asking.

            The significance of the combination was not random. Every Shelley and Rice grandchild knew what it implied.

            The combination sequence is … 9-1-6.

            916 (LRC LSH)

            We spent New Years Day at the 916 Ranch (the ranch whose famous brand inspired the lock’s combination) with Terrell and Charlene Shelley. They are the current generational team that carries on unbroken Shelley stewardship since 1884. A visit to the ranch and its headquarters is like a journey back in time. Any visit there isn’t just the magnificence of the setting on Mogollon Creek with its backdrop of the Mogollon front and ridgeline dominated by 10,778’ Mogollon Baldy. It is the human saga that permeates the place. A full sense of that surrounds the headquarters. Rock and steel dominate the nearby cattle handling facilities outside and family history and continuity dominate inside. There is immense permanence. Everything is overbuilt in the manner that is nothing less than enduring human effort.

            That permanence is seen in new fencing that is underway bringing more pasture under 916 ownership. Corner and stretch posts are set four feet in the ground whether in rock or sand. T posts are spaced a rod apart and four heavy, one seeded juniper staves are wired to each gap. Steel gates have replaced wire gates, and historical structures up the creek have been repaired and protected against freezing temperatures and bears.

            Out on the mesa, water storages are now built to receive water from well sources in the creek bottom and more pipeline stretch in all directions to limit all walks to water a mile or less for cattle and wildlife alike. Plans are underway to rebuild yet more historic corrals for the ease of limiting stress on livestock and diminishing, dependable labor alike. Two way radios and high flotation, light weight enclosed ATVs are now employed where hours on horseback once provided the daily eyes and ears management. Everything is built on speed because that is the only means of modern economic survival.

              Lunch was started with prayer, and too quickly time required a three hour run for home and waiting evening chores.

            Before leaving, though, a visit to the original, single room log house was requested. The walk through its door gave me goose bumps. Not everything is the same as when it was last occupied, but the history that remains is immense. Grandpa Shelley’s old chair sits in the corner. A worn and deep groove in its right arm displays his habit of cracking black walnuts during leisure time. His roll top desk is also there with all its historical files and records. A hand carved wooden polo ball was there as was as an ancient typewriter. Old gun scabbards, lanterns, fishing poles, deer horns, and ranching lore are in every corner.

Two things, though, struck me harder than anything. The first was Grandmother’s old leather bound trunk. Terrell, almost in passing, indicated he had never seen the contents! What history that trunk holds cannot be imagined.

The other thing was not so much what was in that one room structure, but what any cognizant and honest evaluation of the ranch elicits. True history exists unspoiled in only a few, isolated, and continuing versions of epic human experiences. This is where modern wilderness actually exists in body and in spirit. This is where private property rights can be studied in most finite detail, and it is where the West maintains its last vestiges of what our Founders … actually intended.

Utah and our Constitutional Rights

 When the original 13 colonies declared their independence from the Crown, a union did not exist. Each of the colonies was a sovereign, independent, and free body of citizens. Each had exclusive jurisdiction over its own existence. Leaders were elected, courts were formed, and enterprises were not just encouraged, but were deemed vitally important to the economy of the citizenry.

Those independent, colonial bodies also succeeded to the ownership of any land that had not been previously appropriated, sold or granted by the King while recognizing private title to any that was already appropriated. Title to the non-appropriated land was regularly and promptly transferred, sold, or granted to promote settlement, defense of the citizenry, and the development of commerce.

No central government oversaw the disposition of those lands because no central government even existed. Succession of non-appropriated land ownership was a function of the outcome of the Revolutionary War.

As time passed, more lands, vast territories to the west, were ceded to the young nation and its invented central government. That central government was given authority to be the land agent for the Union, but never intended to be a sovereign state unto itself. The states, through their representation, agreed each new state would be entitled to original and equal treatment of the 13 colonies. The young nation grew, privatization proceeded and the idea of “manifest destiny” was singular national policy.

For a period of time that prevailed. It was manifested in the expansion of states east of the Mississippi and it was strongly followed in first and second generational Supreme Court decisions that invariably supported private property rights. Originality, however, began to fade when attempts were made to deny the “western states” of circa 1835 to what today can be termed the rules of agreement from the Compact Theory. The Compact Theory posits that most western state enabling acts were actually offers of statehood. A state’s agreement to such an offer sealed the agreement and created a solemn compact whereby all original rights would be held inviolate for the new state. Universal evidence at the time demonstrated the real intent of the Constitution’s Property Clause which was to dispose of public lands for cornerstone issues … the reduction of debt and the stimulation of the local, and, thus, the national economy.

 When the federal government drug its feet in this promise to the then “western states” (including such states as Illinois, Louisiana, and Florida), open rebellion nearly erupted. Similarly, when Georgia gave up territory that became Alabama, the denial of original rights became a fire storm of revolt. The “revolt” was squelched by carrying through on the promise and the result became continuing recognition of originality in the Equal Footing Doctrine. The Equal Footing Doctrine restates the simple premise that new states entering the Union shall receive all incidents and right of sovereignty enjoyed by the 13 original states which centrally includes the dominion of lands within their boundaries.

Every state east of the 100^th Meridian was extended those sovereign and political rights, but that was not the case in all latter day western states (Texas and Hawaii are exceptions).

 Utah is carrying the flag for the West in its quest to seek dominion over its own lands. Their goal is to attempt to gain ownership of and control over federal lands, to enforce the provisions of their Transfer of Public Lands Act, and to seek a declaratory judgment that Section 102(a)(1) of the Federal Lands Policy and Management Act be struck down.

The state argues the Constitution was honored in the treatment of all new states from originality in 1784 until its arrival to the Union, but the solemn promise of the Compact Theory, the Equal Footing Doctrine, and the Constitution were breached upon Utah’s entry. The federal government maintains it owns a proprietary state within the state that encompasses some 35,723,300 acres or a sub-state the size of Florida. The elected governor of Utah serves as the minority land manager of his state with its federal sub-state. Federal bureaucratic counterparts control more land than he does.

In its case for dominion for its state lands as extended in all states east of the 100^th Meridian, Utah is posturing to employ the Equal Footing Doctrine and the Compact Theory noted herein above along with the Equal Sovereignty Principle and the Property Clause argument (the latter of which is constitutionally based). The Equal Sovereignty Principle is very important, and was recently highlighted in a Supreme Court case. The Court emphasized the constitutional requirement that all States in the federal system be equal in sovereignty (and not assigned geopolitical or geographical provisional exceptions).

The matter of the Property Clause is anticipated to be met by federal arguments that the Property Clause grants it complete or plenary power over all federal property thus allowing it to permanently retain all the federal land as it may desire. The problem is, however, the Court has never ruled on whether the Property Clause permits the federal government to forever retain the majority of land within states like Utah. One point that offers Utah a degree of higher expectation with this idea is that key cases under this approach were decided when the policy expedited full disposal of eastern states’ lands.

The Lock

I am not sure I have ever received a gift that is more symbolic than the century old masterpiece with its 9-1-6 combination.

The triangulation of my age, the visit to my historical roots, my experience as a rancher on federal lands (and now a national monument rancher), and the intimacy of knowledge that private land and private property rights frees us all from the threat of past and modern Crowns makes the outcome of the Utah effort supremely important. I appreciate what those folks are doing at a level that I cannot reach, but I need no one to speak for me. I am the master and the most reliable steward of the land I touch. My dominion of exercising private property rights has improved everything I do and plan to do. It is a microcosm of what Peter, Tom, Lawrence, and Terrell Shelley, respectively have done over a span of 132 years on the original keystone that began our tenure on New Mexico ranch lands. Utah ranchers are no different nor are Oregon, California, Arizona, or Montana counterparts. We must all have the same consideration of individual sovereignty that forms the basis of our entire system.

Our friend Ken Ivory, who has been so instrumental in Utah's efforts, reminds us all to act like the sovereign beings our Founders considered themselves to be.  I suggest we start with the defense of our own perimeters, and it all starts by replacing the lock … on our constitutional gift of sovereignty.

Stephen L. Wilmeth is a rancher from southern New Mexico. “For our system to be sustainable, we cannot dilute our importance or share our private rights. They aren’t for sale … or for taking.”