Who Really Owns America’s Land?
Who Really Owns America’s Land?Under English common law, a most unique significance was attached to the unalienable right of possessing, developing, and disposing of property. Land and the products of the earth, in their natural state, were considered a gift of God to man, but then man was commanded individually to cultivate, beautify, and subdue it and bring it under his dominion. This is the root of private property ownership, for without a certain exclusiveness, one cannot fulfill the command to “subdue” and gain “dominion” over property. America’s Founders took this Biblical injunction literally and believed that no government official has a right to interfere with this God-given, unalienable right and mandate. Their belief that the land belonged to the people, not the king, was the impetus for including the grievances in the Declaration of Independence that, 1) “He has endeavored to prevent the population of these States;… and rais[ed] the conditions of new Appropriations of Land, and, 2) the “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.” King George also attempted to prevent the colonists from possessing the new lands west of the Appalachian Mountains.
The Land belongs to the people, not the Government or the KingThis, like many other ideas of the Founders, led them to reject the old established way of centralized control of land and to institute orderly control at a much more local level which would be administered close to the people for their benefit. State, counties, and local governments became the support for organized, private ownership of land, with only a little bit dedicated to the common usage of the people. To ensure that this arrangement would forever be maintained, the Founders gave very specific restrictions to the federal government concerning the ownership and control of land. While the federal government would maintain control of territories such as the District of Columbia, Article I, Section 8, clause 17 of the U. S. Constitution clearly states that land within the boundaries of a state may only be acquired by the national government if, first, it has the consent of the state legislature, and, second, it must only be for one of four purposes: military forts, arsenals, dock-yards, and other needful buildings. It is interesting to note that no state legislature exists before a state exists, so all the land within a state comes within state jurisdiction when a state is created. Thereafter, the federal government may ask the state legislature for specific parcels of land for the above-stated purposes. It was this procedure that was to guarantee that the age-old tendency of power-hungry national or kingly governments to grab up and deprive the people of their God-given land would forever be avoided in the United States.
New States would come into Union on an Equal Footing with the Original Thirteen StatesThe Founders made sure that the original thirteen states had both dominion and sovereignty with respect to land within the states’ borders and that the national government’s land holdings were very little and in accordance to the purposes outlined in the Constitution. But what about new states that were surely to come into the Union at a later date? The Founders declared in several documents that all future states were to be accepted into the Union on an “Equal Footing” in all aspects with all the original states. Language such as, “…on an Equal Footing with the original states, in all respects whatsoever…” and “…and shall have the same rights of sovereignty, freedom and independence, as the other states;” is found in documents such as The Northwest Ordinance of 1787 and others which outline the specific procedures for accepting new states into the Union. It is interesting to note that when land came into possession of the United States in the Founders’ Era, such as the huge Louisiana Territory, efforts were made to organize it so that, when sufficient population was present, it could be converted into sovereign states. Much of the land was sold directly to the people and the proceeds used to pay off the national debt. The year 1835 was the only time in our history the national debt was completely paid off. The Founders were loyal to the Constitutional requirements in two ways: 1) The disposition of land to the people, and 2) The paying off of the national debt.
Enabling Acts of the Western StatesThe original thirteen states and the later Midwestern and Southern states currently have very little federal lands (as low as 1%) within their boundaries as required by the Constitution. But when the western states applied for statehood, a whole new philosophy was in vogue in Washington, D. C. It is as though the age-old kingly philosophy that the Founders fought so hard to eliminate had returned and the central powers saw opportunities to control the people by retaining control of their lands, even after statehood was granted. Statehood Enabling Acts are passed by Congress to facilitate the creation of each state. They provide, among other things, for the state to enjoy equal footing with the other states and that the federal government will be unhindered in its disposal of previously held lands. The California Enabling Act is reasonably typical of all other western states, with some modifications. It says:
“…That the State of California shall be one, and is hereby declared to be one, of the United States of America, and admitted into the Union on an Equal Footing with the original States in all respects whatever.” And
“…That the said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned;…”
The passage of the Forest Reserve Act of 1891It was not long after some western states came into the Union (e.g. California in 1850, Nevada in 1864) that the tendency grew for the federal government to not dispose of land within the respective states as agreed in the Enabling Acts but to “set aside” lands for other purposes. Yosemite and Yellowstone were among these. Congress finally passed the Forest Reserve Act of 1891 which included authority for the president to do just that, even though it was outside the boundary and authority of the Constitution. This act included a short rider to Section 24 which reads:
“That the president of the United States may, from time to time, set apart and reserve, in any state or territory having public land bearing forest, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations; and the president shall, by public proclamation, declare the establishment of such reservation and limits thereof.”As a result the federal government today claims to own or control the following percentages of the western states: Nevada – 86%, Arizona – 75%, Utah – 75%, Oregon – 75%, Idaho – 75%, Alaska – 71%, Wyoming – 65%, New Mexico – 60%, California – 55%, Colorado – 50%, Montana – 45%, Washington – 40%.