Public Lands: You Can’t “Take Back” What Was Never Yours (Part 1)

We have heard a lot of talk lately from a variety of people, ranging from the Bundys and their cohorts in Oregon to the state legislatures of western states, about “taking back” public lands from the Federal Government. This premise is fundamentally flawed because, as I shall show, the western public lands never belonged either to the states or to private individuals. Native Americans might reasonably propose to “take back” their lands, which they occupied for thousands of years before the arrival of European colonists. Here in New Mexico, heirs of Spanish and Mexican land grants might make a claim to lands that their ancestors were illegally deprived of. But neither Anglo ranchers like the Bundys nor western state governments have any logical or legal grounds for making such claims.

The western states where the anti-federal land management movement has arisen share one common factor: they were all obtained by treaty from foreign powers, either under the Louisiana Purchase (1803), the Oregon Treaty with Great Britain (1846), or the treaty of Guadalupe Hidalgo, ending the Mexican–American War (1848). Hence, all of these lands were initially under the control of the Federal government. Over time, they were first organized as territories, still administered by the federal government, then eventually admitted as states. In the meantime, congress devised various means for private individuals to settle and acquire title to land within the territories, such as the homestead acts, timber act, 1872 mining law, and the like. Although more than 270 million acres of public land was transferred to private individuals via the Homestead Acts, much of the land in the western territories remained unsettled and ungranted at the time of the respective territories’ admission to the union as states—the land was just too hot and dry, too high and cold, or too rocky to be suitable for farming. Hence, much of the land in the western states remained in federal hands at the time of statehood. In the enabling acts admitting the respective western states to the union, congress explicitly required that those lands remain in federal hands. The following language from the 1910 Enabling Act for New Mexico is typical:

…that the people inhabiting said proposed state do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof…

Via the strictly constitutional means of legislation passed by congress, signed by the president, and accepted by the newly admitted states, the federal government retained control of such lands as were already in its possession at the time of the respective states’ admission to the union. No unconstitutional “land grab” ever took place. Nothing could be clearer. Having retained the ownership of these lands, congress has the constitutional power to manage them (Article Four, section 3, clause 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 any Claims of the United States, or of any particular State.

Although one may legitimately debate how such lands should be managed and for whose benefit, there is no plausible constitutional argument for prohibiting the federal government from managing these land via laws, regulations, and agencies that it has created for that purpose. Still less is there any legal justification for anyone else, be it state legislatures or bands of armed citizens, to take over the management of such lands except as authorized by congress and the president.

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