The Transfer of Public Lands Act is Clearly Constitutional! -Part 2

Ken Ivory, President, American Lands Council

Some ignorantly assert that it would be illegal or unconstitutional for western states to compel the federal government to transfer title of the public lands to the states even though it’s already been done before – repeatedly!

Last week, I began sharing with you an experience I had this summer. I was invited to participate on a continuing legal education panel regarding the transfer of public lands.  Also on the panel was a law professor frequently quoted as saying this effort is “clearly unconstitutional.”  He quoted two reasons why he felt the Transfer of Public Lands Act was unconstitutional.

The first reason referred to the annual precipitation of these lands. Claiming that the western lands were too arid, he implied that, therefore, the federal government keeps all the public lands.  We showed last week how this flawed argument ignores the fact that the two states with some of the most precipitation are Alaska and Washington, respectively, whose lands overwhelmingly remain under federal control.

As this law professor’s second reason for the federal retention of the public lands, he claims that the founding fathers of the western states simply ransomed away these lands for the privilege of statehood.  His reasoning was that all the enabling acts of the western states contain the words “forever disclaim all right and title to the unappropriated lands lying within their boundaries…,”

Interestingly, if our law professor were to read the whole sentence, rather than a few select words, he would discover that the western states only gave clean title to the federal government “for temporary purposes” (Pollard v. Hagan) as the rest of the sentence provides it is only “until title thereto shall have been extinguished.”  In fact, if he had read the whole enabling act he would have discovered that the federal government also promised the western states

“That five per centum of the proceeds of the sales of public lands lying within said States which shall be sold by the United States…shall be paid to the said States…for the support of common schools within said States, respectively.” — Montana, Washington, North Dakota, South Dakota Enabling Act of 1889 §13

Had our law professor bothered to expand his horizons, he would have noticed that this same “forever disclaim” language, is in the enabling acts of states east of Colorado where the federal government did dispose of the public lands.   In fact, the Enabling Act for Montana and Washington State is the very same document (not just the same language, but the same piece of paper) that also created North and South Dakota, which have less than five percent (5%) federally controlled lands today.

Unfortunately, we have been trained to believe that the federal government can do whatever it wishes.  But our Constitution was put in place by wise men who had keenly felt the consequences of an all-powerful government and designed our nation to be free of such land barrons. We fought the battle for self-governance 237 years ago…and won. There is no need for our states to give up our position now.

Please give your elected officials the courage to stand strong and preserve the sovereignty of our states, as well as our ability to care for the health, safety and welfare of our citizens.

——————————————————————Books by Dr. Jimmy T. (Gunny) LaBaume

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About Land & Livestock Interntional, Inc.

Land and Livestock International, Inc. is a leading agribusiness management firm providing a complete line of services to the range livestock industry. We believe that private property is the foundation of America. Private property and free markets go hand in hand—without property there is no freedom. We also believe that free markets, not government intervention, hold the key to natural resource conservation and environmental preservation. No government bureaucrat can (or will) understand and treat the land with as much respect as its owner. The bureaucrat simply does not have the same motives as does the owner of a capital interest in the property. Our specialty is the working livestock ranch simply because there are so many very good reasons for owning such a property. We provide educational, management and consulting services with a focus on ecologically and financially sustainable land management that will enhance natural processes (water and mineral cycles, energy flow and community dynamics) while enhancing profits and steadily building wealth.
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