Statehood Howell & Redd

“Originalism” or a “Living Constitution?”

Our thesis is based upon
“constitutional originalism" meaning
"first constitutional principles."

“The security of a people against the
misconduct of their rulers, must lie in
the frequent recurrence to first
principles, and the imposition of
adequate constitutional restrictions.”
Fletcher v. Peck, 10 U.S. 87, 1810
Also: Patrick Henry, Benjamin Franklin, and the Utah Constitution

STATEHOOD: THE TERRITORIAL
IMPERATIVE

Part I: Origin and Objects of the Federal
Territorial System
Part II: Incorporation of the “Public Land Trust” and into the
U.S. Constitution

Part III: Equal Footing Among the States
Part IV: State Enabling Act Compacts

Part V: Where did we go wrong?

“First, we must define our terms” - Voltaire
Within the context of this presentation:

Territory – federally held land that has yet to become a state;
subject to federal maritime and territorial jurisdiction; outside
of constitutional law
Public Lands – federally held land within a state that is
subject to disposition; formerly under constitutional law, now
under federal maritime and territorial jurisdiction
Federal Land – Federally held land within a state that is NOT
subject to disposition; under federal maritime and territorial
jurisdiction
Sovereign or Sovereignty – Subject to no other jurisdiction;
the ability to rule in the final analysis

Part I: Origin and Objects of the Federal
Territorial System

Part I: The Origin and Object of the Federal Territorial System

INTERSTATE CONFLICTS
- Conflicting, overlapping land claims
- Hostile division among the States at the same time
they were fighting the British
- Maryland was refusing to sign the Articles of
Confederation since they were land-locked and could
not compete with the larger States to the West that
were making these land claims.
- This conflict between the States was an extreme
embarrassment to the Continental Congress.

The Continental Congress of the United States: 1774 -1789:

- A convention of appointed ambassadors or
delegates and not elected representatives.
- Had little to no authority to compel the States
- Attempted to resolve the divisive land dispute
raging between the States.

Resolution of Congress of September 6, 1780:

On this date, a committee of the Continental
Congress prepared a resolution which implored
those States that were asserting claims to
western "wastelands" to cede those claims to
the Congress.

Resolution of September 6, 1780 continued:

The congressional committee stated that such
cessions would "remove the embarrassments
respecting the Western country."

These cessions, the committee continued, are
"essential ... to our very existence as a
free, sovereign, and independent people," and
they are "necessary to the happy establishment
of the Federal Union."

Resolution of September 6, 1780 continued:

The resolution of the committee requested that the
land claiming States: "pass such laws, and give their
delegates in Congress such powers as may effectually
remove the only obstacle to a final ratification of the
articles of confederation; and that the Legislature of
Maryland be earnesly (sic) requested to authorize
their delegates in Congress to subscribe the said
articles."
(Note that there was no indication in the resolution as to
what the Congress intended to do with the land once it was
ceded. Only New York ceded its land claim at this time.)

Resolution of Congress of October 10, 1780:

On this date, Congress restated its resolution of
September 6th.
With this revised resolution, Congress stated
precisely what it would do with the lands if the
States would comply with the cession request.
This resolution reads as follows:

(1) "Resolved, That the unappropriated lands that may be ceded or
relinquished to the United States, by any particular states, pursuant to
the recommendation of Congress of the 6 day of September last, shall
be granted and disposed of for the common benefit of all the United
States that shall be members of the federal union, (2) and be settled
and formed into distinct republican states, (3) which shall become
members of the federal union, and have the same rights of sovereignty,
freedom and independence, as the other states: that each state which
shall be so formed shall contain a suitable extent of territory, not less
than one hundred nor more than one hundred and fifty miles square, or
as near thereto as circumstances will admit: and that upon such cession
being made by any State and approved and accepted by Congress, (4)
the United States shall guaranty the remaining territory of the said
States respectively. ..." (5) "That the said lands shall be granted and
settled at such times and under such regulations as shall hereafter be
agreed on by the United States in Congress assembled, or any nine or
more of them.

The Resolution of the Continental Congress of
October 10, 1780 is where the federal trust
obligation with respect to federal territories and
public lands began.
For this reason, we cannot understand the
federal trust obligation with respect to these
lands unless we fully understand this resolution.

So, lets consider the Resolution provision by
provision:

(1) "Resolved, That the unappropriated lands
that may be ceded or relinquished to the United
States, by any particular states, pursuant to the
recommendation of Congress of the 6 day of
September last, shall be granted and disposed of
for the common benefit of all the United States
that shall be members of the federal union, (2) and be

settled and formed into distinct republican states, (3) which shall become members of the federal
union, and have the same rights of sovereignty, freedom and independence, as the other states:
that each state which shall be so formed shall contain a suitable extent of territory, not less than
one hundred nor more than one hundred and fifty miles square, or as near thereto as
circumstances will admit: and that upon such cession being made by any State and approved and
accepted by Congress, (4) the United States shall guaranty the remaining territory of the said
States respectively. ..." (5) "That the said lands shall be granted and settled at such times and
under such regulations as shall hereafter be agreed on by the United States in Congress
assembled, or any nine or more of them ...."

(1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United
States, by any particular states, pursuant to the recommendation of Congress of the 6 day of
September last, shall be granted and disposed of for the common benefit of all the United

(2) and be settled and
formed into distinct republican states, (3) which shall

States that shall be members of the federal union,

become members of the federal union, and have the same rights of
sovereignty, freedom and independence, as the other states: that each state which
shall be so formed shall contain a suitable extent of territory, not less than one
hundred nor more than one hundred and fifty miles square, or as near thereto as
circumstances will admit: and that upon such cession being made by any State and
approved and accepted by Congress, (4) the United States shall guaranty the
remaining territory of the said States respectively. ..." (5) "That the said lands shall be
granted and settled at such times and under such regulations as shall hereafter be
agreed on by the United States in Congress assembled, or any nine or more of them
...."

States that shall be members of the federal union, (2) and be settled and formed into distinct

(3) which shall become members of the
federal union, and have the same rights of
sovereignty, freedom and independence, as the other
states: that each state which shall be so formed shall
contain a suitable extent of territory, not less than one
hundred nor more than one hundred and fifty miles
square, or as near thereto as circumstances will
admit: and that upon such cession being made by any State and approved and accepted by
republican states,

Congress, (4) the United States shall guaranty the remaining territory of the said States
respectively. ..." (5) "That the said lands shall be granted and settled at such times and under
such regulations as shall hereafter be agreed on by the United States in Congress assembled, or
any nine or more of them ...."

republican states, (3) which shall become members of the federal union, and have the same
rights of sovereignty, freedom and independence, as the other states: that each state which
shall be so formed shall contain a suitable extent of territory, not less than one hundred nor
more than one hundred and fifty miles square, or as near thereto as circumstances will admit:

and that upon such cession being made by any
State and approved and accepted by
Congress, (4) the United States shall guaranty
the remaining territory of the said States
respectively. ..." (5) "That the said lands shall be granted and settled at such
times and under such regulations as shall hereafter be agreed on by the United States in
Congress assembled, or any nine or more of them ...."

republican states, (3) which shall become members of the federal union, and have the same
rights of sovereignty, freedom and independence, as the other states: that each state which
shall be so formed shall contain a suitable extent of territory, not less than one hundred nor
more than one hundred and fifty miles square, or as near thereto as circumstances will admit:
and that upon such cession being made by any State and approved and accepted by
Congress, (4) the United States shall guaranty the remaining territory of the said States

(5) "That the said lands shall be granted
and settled at such times and under such
regulations as shall hereafter be agreed on by
the United States in Congress assembled, or any
nine or more of them ...."
respectively. ..."

With its promise to divest itself of the ceded lands and to
establish new and equal State therein, and to not hold the
land in federal ownership, the land claiming states did, over
time, yield their western land claims to their Union.
New York (1780), Virginia (1784), Massachusetts
(1785), Connecticut (1786) and South Carolina (1787).
North Carolina, and Georgia ceded their western "waste
lands" in 1789 and 1802 respectively after ratification of the
U.S. Constitution in 1788.

In 1833, President Andrew Jackson referred to the land cession compacts which arose out of this
resolution of Congress in these words:

"These solemn compacts, invited by Congress in a resolution
declaring the purposes to which the proceeds of these lands
should be applied, originating before the constitution, and
forming the basis on which it was made, bound the United
States to a particular course of policy in relation to them by ties
as strong as can be invented to secure the faith of nations."

The Public Land Trust
In 1976, the Supreme Court referred to “the public lands thus
entrusted to Congress.” Trusts are usually matters of law
written or otherwise documented in detail between trustors and
trustees. The public land trust must be documented in history
somewhere.

Where is it written?
What is its object or purpose?
We submit that the federal trust obligation
respecting territorial and public lands originated
with, and is defined by, the Resolution of
Congress of October 10, 1780.
23

Part I - Summary:
The resolution of Congress of October 1780 was the origin of the federal
trust respecting public lands. This trust intends that certain specific
benefits will accrue to new states established out of these lands:

1. New states will be “distinct” and “republican.”
2. New states will encompass a “suitable extent of territory.”
3. New states will possess “the same rights of sovereignty and
independence as the original states.”
4. The remaining territory of the ceding states will be
“guaranteed.”
5. Ceded lands will be “granted and settled under the
regulations of Congress.”
6. New states established within the federal territories will be
admitted as “members of the federal union.”
24

Part II: Incorporation of the “Public Land Trust” and
into the U.S. Constitution

The Constitutional Convention was held in Philadelphia during the summer of 1787.
Fifty five men attended the convention either occasionally or through out its duration.
Of these fifty five, nine (9) were also members of the Continental Congress in 1780
when the Resolution of October, 1780 was adopted establishing the trust respecting
territorial and public lands.

Oliver Ellsworth
- Connecticut
Roger Sherman
- Connecticut
William Few
- Georgia
Daniel Jenifer of St. Thomas - Maryland
Elbridge Gerry
- Massachusetts
William C. Houston
- New Jersey
George Clymer
- Pennsylvania
Jared Ingersoll
- Pennsylvania
James Madison
- Virginia
Of these nine only two, Gerry and Houston, did not sign
the final draft of the Constitution.

The draft Constitution of 1787 was consistent
with the terms of the trust established just
seven years earlier under the Resolution of
October 1780.
“Men do not use words to defeat their
purposes.” United States v. Classic, 313 U.S.
299, 1941

The US Supreme Court, in 1828, said as much.

In 1828, Chief Justice John Marshall of the U.S. Supreme Court (1801 – 1835) said this about the
Constitution, the Constitutional Convention and the first federal territories which were ceded by the states:

"At the time the Constitution was formed, the limits of the territory over which it was
to operate were generally defined and recognised (sic). These limits consisted in
part, of organized states, and in part of territories, the absolute property and
dependencies of the United States. These states, this territory, and future states to be
admitted into the Union, are the sole objects of the Constitution; there is no express
provision whatever made in the Constitution for the acquisition or government of
territories beyond those Limits."
American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 1828."

Resolution of 1780

Constitution of 1787

• 1. “Resolved, That the
unappropriated lands that
may be ceded or
relinquished to the United
States, by any particular
states, pursuant to the
recommendation of
Congress of the 6 day of
September last, shall be
granted and disposed of
for the common benefit of
all the United States ...”

• Article IV, sec. 3, cl.
2, the Property Clause:
“The Congress shall have
the power to dispose of
and make all needful
rules and regulations
respecting the territory
or other property
belonging to the United
States;”
30

Resolution of 1780
• 2. “... and be settled and
formed into distinct
republican states ....”
• (Political accountability
on the part of those who
would wield the power.)

• Article IV, sec. 4, the
Guarantee Clause:
“The United States shall
guarantee to every state
in this union a
Republican form of
government, ....”

31

Resolution of 1780
• 3. “ ... distinct republican
States, which shall become
members of the federal
union ....”

• Article IV, sec. 3, cl. 1, the
Admissions Clause:
• “New states may be admitted
by the Congress into this union;
but no new state shall be formed
or erected within the jurisdiction
of any other state; nor any state
be formed by the junction of two
or more states or parts of
states, without the consent of the
legislatures of the states
concerned as well as of the
Congress” (Also the Enclave
32
and Claims Clauses)

Resolution of 1780
• 4. “... the United States
shall guaranty the
remaining territory of
the said States
respectively.”
• “All objections and scruples (to the
acquisition of land by the U.S.) are here
also obviated by requiring the
concurrence of the States concerned, in
every such establishment.”
Madison, Federalist #43.

• Article I, sec. 8 cl. 17, the
Enclave Clause:
“The Congress shall have power
to ... exercise (exclusive
legislation in all cases
whatsoever) over 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.” (Also, Claims and
Admissions clauses)
33

Resolution of 1780
• 4 cont‟d. “ ... the
United States shall
guaranty the
remaining territory of
the said States
respectively.”
• “Lordship of the soil remains in full
perfection with every state” and this
constitutes “one of the most
valuable and powerful appendages
of sovereignty,” Tench
Coxe, Publisher, Pennsylvania, circa 1788

• Article IV, sec. 3, cl.
2, Claims Clause:
“and nothing in this
Constitution shall be so
construed as to prejudice
any claims of the United
States, or of any
particular state.”

34

Resolution of 1780
• 5. “That the said lands
shall be granted and
settled at such times and
under such regulations
as shall hereafter be
agreed on by the United
States in Congress
assembled.”

• Article IV, sec. 3, cl. 2,
the Property Clause:
“The Congress shall have
the power to dispose of
and make all needful
rules and regulations
respecting the territory
or other property
belonging to the United
States;”
35

Resolution of Oct. 1780

• The Continental
Congress was a
convention of
appointed delegates
representing their
respective states. The
Resolution of Oct. 1780
was, therefore,
a compact or
“engagement” between
the states
and not a legislative act.


• Article VI, cl. 1, the
Debts and Engagements
Clause:
• “All Debts contracted
and Engagements
entered into, before the
Adoption of this
Constitution, shall be as
valid against the United
States under this
Constitution, as under
the Confederation.”

We have already shown that by terms of the Resolution of
Congress of Oct. 10, 1780, certain benefits were to accrue to
the new states formed out of the new federal territories:
1. New states would be “distinct” and “republican.”
2. New state would encompass a “suitable extent of territory.”
3. New state would possess “the same rights of sovereignty
and independence as the original states.”
4. New states established within the federal territories would
be admitted as “members of the federal union.”
5. The remaining territory of the ceding states would be
“guaranteed.”
6. The ceded lands would be “granted and settled under the
regulations of Congress.”
37

If the elements of the public land trust
established under the Resolution of
1780 were incorporated into the
Constitution of 1787, is it possible that
the benefits accruing to the States out
of that can belong only to the original
states and to those certain new states
which were established out of the first
ceded territories?
38

The federal government under the
Constitution “... is the government of
all; its powers are delegated by all; it
represents all, and acts for all,”
McCulloch v. Maryland, 17 U.S. 316, 1819

39

If the draft Constitution incorporated the trust elements of the
Resolution of 1780, and if under this trust, Congress obligated
itself to dispose of the territorial lands ceded to it, does it not
follow that the word “dispose” in the Property Clause of Article
IV, refers to that same obligation?
And if the word “dispose” in the Property Clause referred to an
obligation in 1787, it must refer to an obligation today:

“The Constitution is a written instrument. As such, its
meaning does not alter. That which it meant when it
was adopted, it means now.”
South Carolina v. United States, 199 U.S. 437, 1905.

40

No law can be applied differentially to different people at the
same time and this principle applies as well to the “Supreme
Law of the Land”:
“It would seem repugnant to the first notions of justice, that in
respect to the same instrument of government, different
powers, and duties, and obligations should arise, and different
rules should prevail, at the same time among the governed, ...”
Justice Story, Commentaries on the Constitution, 1833, Book
III, Ch. IV, 357

41

As a matter of “constitutional uniformity”
Congress may make no distinction between the
first federal territories and territories latter
acquired:
“Upon the acquisition of a territory by the
United States, whether by cession from one of
the states, or by treaty with a foreign country, or
by discovery and settlement, the same title and
dominion passed to the United States, for the
benefit of the whole people, and in trust for the
several states to be ultimately created out of the
territory.” Shively v. Bowlby, 152 U.S. 1, 1894
42

Part II – Summary:
1. The Constitutional Convention was attended by nine delegates who had been
members of the Continental Congress in 1780 when the public land trust was adopted.
2. The public land trust established in 1780 provided a list of at least six (6) benefits
that were to accrue to new states established within the new federal territories and also
to the existing states.
3. The draft Constitution contained six clauses which reflected and preserved the
elements of the public land trust including the benefits that were to accrue to the states.
3. As a consequence of the principle of constitutional uniformity the terms of the
Constitution must apply in the same matter to all and cannot be differentially applied.
5. Congress cannot distinguish its duties with respect to the territories on the basis of
the manner by which each may have been acquired by the United States.
6. CONCLUSION: The western so-called “public land states” are entitled, under the
Constitution, to the same benefits arising under the Resolution of 1780 that were
received by the fist new states that were established out of lands ceded by certain of the
43
original states.

Part III: Equal Footing Among the
States

“Equal Footing” has been defined by the US Supreme Court:
“The requirement of equal footing was designed not to wipe
out those diversities (diversity incident to
area, geology, latitude, economy, etc.) but to create parity as
respects political standing and sovereignty.”

... “The ‘equal footing’ clause (of the US Constitution) has long
been held to refer to political rights and to sovereignty. See
Stearns v. Minnesota, 179 U.S. 223, 245.”
United States v. Texas, 339 U.S. 707, 1950.
Note that “political standing” and “political rights” are used interchangeably.

The original states retained territorial
sovereignty and jurisdiction over the entirety of
their territory under both the Articles of
Confederation and the Constitution of 1787:
“Each (former colony) declared itself sovereign
and independent, according to the limits of its
territory.” “*T+he soil and sovereignty within
their acknowledged limits were as much theirs
at the declaration of independence as at this
hour.”
Harcourt v. Gaillard, 25 U.S. 523, 1827.

“Lordship of the soil remains in full perfection
with every state” and this constitutes “one of
the most valuable and powerful appendages of
sovereignty.”
Tench Coxe, Publisher, during the period of the
Pennsylvania Constitutional Convention, circa
1788.

Every new State is entitled under the Constitution to
the same territorial sovereignty as the original States:
“Alabama is therefore entitled to the sovereignty and
jurisdiction over all the territory within her
limits, subject to the common law, to the same extent
that Georgia possessed it before she ceded it to the
United States. To maintain any other doctrine is to
deny that Alabama has been admitted into the Union
on an equal footing with the original states, the
Constitution, laws, and compact to the contrary
notwithstanding.”
Coyle v. Smith, 221 U.S. 559, 1911, citing Pollard v. Hagan, 1845

“On (the admission of Illinois into the Union) she at once
became entitled to and possessed of all the rights of
dominion and sovereignty which belonged to the original
states. She was admitted, and could be admitted, only on the
same footing with them. The language of the act of admission
is, „on an equal footing with the original states in all respects
whatever.‟ Equality of constitutional right and power is the
condition of all the states of the Union, old and new.”
Escanaba & Lake Michigan Transp. Co. v. City of Chicago, 107 U.S. 678, 1883.

“The court (Pollard v. Hagan, 1845) declared
that to refuse to concede to Alabama
sovereignty and jurisdiction over all the
territory within her limits would be to 'deny that
Alabama has been admitted into the Union on
an equal footing with the original states.' The
same principles were applied in Louisiana v.
First Municipality, 3 How. 589.”
Ward v. Racehorse, 163 U.S. 504, 1896

If new states are to possess sovereignty equal to
that of the original states, then they must possess
sovereignty over the entirety of that “suitable
extent of land” which was defined as “the state”
by terms of their respective state enabling act
compacts.

“What then is the extent of jurisdiction
which a state possesses? We
answer, without hesitation, the jurisdiction
of a state is co-extensive with its territory;
co-extensive with its legislative power,”
U.S. v. Bevans, 16 U.S. 336, 1818

If all of the land within a state is to be subject to
the legislative power of the state, except as that
power may be temporarily limited by terms of
the state‟s enabling act compact then what is
the role of the United States and of Congress
with respect to the public lands lying within it?
The US Supreme Court has acknowledged that
opinions on this question have varied over the
years:

“I am not unmindful that there has been some
contrariety of decision on the subject of the
meaning of the clause empowering Congress to
dispose of the territories and other property of
the United States, some adjudged cases treating
that article (the Property Clause) as referring to
property as such, and others deriving from it the
general grant of power to govern territories.”
Downes v. Bidwell, 182 U.S. 244, 1901.

Those cases which treat the Property Clause as
referring to property “as such” are consistent
with the foregoing discussion respecting the
federal land trust and the Equal Footing
Doctrine. Some of those cases are presented
below.
Those cases which refer to the Property Clause
as a “general grant of power to govern
territories” are not consistent with the terms of
the federal land trust. Some of these cases will
be considered in Part VI.

A sampling of those cases which treat the
Property Clause as pertaining only to
property and the rights of a proprietor
follows:

“And the vacant soil is to be disposed of by that
organ of the government which has the
constitutional power to dispose of the national
domain.”
Lessee of Johnson et al. v. McIntosh, 21 U.S. 543, 1823.

57

There was a “... great trust imposed on the
(United States) to dispose of the public domain
for the common benefit.”
“Whenever the United States shall have fully
executed these trusts, the municipal sovereignty
of the new states will be complete, throughout
their respective borders, and they, and the
original states, will be upon an equal footing, in
all respects whatever.”
Pollard v. Hagan, 44 U.S. 212, 1845

Federal land laws under the Property Clause
“are not of a legislative character in the highest
sense of the term, but savor somewhat of mere
rules prescribed by an owner of property for its
disposal.”
Butte City Water Co. v. Baker, 196 U.S. 119, 1905, U.S. v. Midwest Oil, 236 U.S.
459, 1915

“(S)o far as it relates to the public
lands within a new State, (federal
power) amounts to nothing more nor
less than rules and regulations
respecting the sales and disposition of
the public lands.”
Coyle v. Smith, 221 U.S. 559, 1911
(Note that this limited role of Congress does not include “governance” but merely the
role of a proprietor disposing of its property.)
60

Part III – Summary:
1. Equal Footing among the states is a constitutional mandate
2. Equal footing is defined as equality as to “political rights
and sovereignty.”
3. Equality of territorial sovereignty is an essential component
of the Equal Footing Doctrine.
4. Denial of territorial sovereignty equivalent to that of the
original states is denial of constitutional right and a
constitutional violation.
5. So long as public lands remain in federal
ownership, complete and independent state sovereignty
equivalent to that of the original states is denied.
6. CONCLUSION: The Equal Footing Doctrine requires that
the federal title in public lands be extinguished and the lands
61
disposed of.

Part IV: State Enabling Act Compacts

62

State enabling act compacts are binding
agreements between the people residing within a
defined federal territory and the United States.
State enabling act compacts set forth the terms
by which the people of the federal territory may
erect a state for themselves and they define that
“suitable extent of territory” over which they
may preside and govern once they have been
admitted into the federal union as a new state
upon an equal footing with the original states.
63

As constitutional laws, state enabling act compacts
must be consistent with, and cannot be in conflict
with, the six clauses of the Constitution that reflect
and codify the terms of the federal trust respecting
public lands which was set down in the Resolution of
Congress of October 1780:
Property Clause
Admissions Clause
Claims Clause

Guarantee Clause
Enclave Clause
Debts and Engagements Clause
64

State enabling act compacts cannot be employed by Congress to
prejudice the rights of any state or to degrade their sovereign dignity
beneath that of the original states:

“So far as this court has found occasion to advert to
the effect of enabling acts as affirmative legislation
affecting the power of new states after admission,
there is to be found no sanction for the contention that
any state may be deprived of any of the power
constitutionally possessed by other states, as states, by
reason of the terms in which the acts admitting them to
the Union have been framed.”
Coyle v. Smith, 221 U.S. 559, 1911.

65

There are two temporary exceptions to the
preceeding statement from Coyle v. Smith.
State enabling act compacts, beginning with the
Northwest Ordinance of 1787 (which was the
first enabling act compact), deny each new state
the authority to tax the public lands and they
deny application of the state‟s laws governing
the conveyance of descent of land title.
66

Conversely, state enabling act compacts
recognize the obligation of Congress to
extinguish the federal title in the public lands
and to dispose of them.
By this disposal, the two temporary restraints
upon the exercise of state territorial sovereignty
listed above are rendered temporary.

The federal obligation to dispose of the public
land is recognized in the Utah Enabling Act
compact with the following language:
67

Utah Enabling Act of 1894 at sec.
3, second:
“(T)hat until the title thereto shall have
been extinguished by the United
States, the same shall be and remain
subject to the disposition of the United
States.”

Historically, concern was expressed that
Congress would delay or even deny its
obligation to dispose of the public lands.
The US Supreme Court offered its opinion that
Congress would not so mistreat any state:

69

“(I)f Congress should determine that the great body of public
lands within the state of Minnesota should be reserved from
sale for an indefinite period it might do so, and thus the lands
be exempted from taxation; and yet it cannot be imputed to
Congress that it would discriminate against the state of
Minnesota, or pass any legislation detrimental to its interests.
It had the power to withdraw all the public lands in Minnesota
from private entry or public grant, and, exercising that
power, it might prevent the state of Minnesota from taxing a
large area of its lands, but no such possibility of wrong
conduct on the part of Congress can enter into the
consideration of this question. It is to be expected that it will
deal with Minnesota as with other states, and in such a way as
to subserve the best interests of the people of that state,”
Stearns v. Minnesota, 179 U.S. 223, 1900.

70

Extended retention of the public lands in federal
ownership was seen as “wrong conduct” by
others as well:

71

A) In 1832, Senator Clay described extended retention of the public
lands in federal ownership as an “exercise of arbitrary and intolerable
power.” Gales and Seaton‟s Register, p. 1095, June 20, 1832

B) In 1833, President Andrew Jackson wrote that employment of the
constitutional property clause for any purpose other than the fulfillment
of the trust established under the “Trust Compacts” would be “an
assumption of undelegated power.” Veto of the Land Bill, 1833

C) In 1840, the U.S. Attorney General referred to extended
retention as a “(wanton) abuse (of) a delegated trust.”
Mr. Gilpin, Attorney General for the United States, United States v. Gratiot, 39 US 526, 1840

However, “It is a besetting vice of democracies to substitute public
opinion for law. This is the usual form in which masses of men exhibit
their tyranny.” James Fenimore Cooper, writer, 1789-1851

Part IV – Summary:
1. Defined extents of federal territory were prepared for admission into the union of
states under terms of state enabling act compacts.
2. State enabling act compacts are necessarily consistent with the requirements of the
Constitution and, therefore, also necessarily consistent with the terms of the federal
trust obligations with respect to public lands.
3. As instruments that are necessarily consistent with the land trust established under
the Resolution of 1780, state enabling act compacts recognize the obligation placed
upon Congress to extinguish the federal title and to dispose of the public domain.
4. Failure by Congress to comply with the terms of state enabling act compacts results
in a breach of trust and denial of a state‟s admission into the union upon an equal
footing with the original states which is a constitutional violation.
5. CONCLUSION: Permanent retention of the public lands in federal ownership is a
breach of trust and a constitutional violation.
73

Part V: Where did we go wrong?

74

Perhaps the greatest error was not an error at all but, rather, a
deliberate act of deception.

75

Gouverneur Morris was an active member of the Constitutional
Convention of 1787. He was wealthy and well educated. As an “elitist”
he disdained the people of the western territories: “I dread the cold
and sour temper of the back counties.” He also held contempt for the
independent sovereignty that the people of the States insisted on
retaining to themselves: “"State attachments, and State importance
have been the bane of this country." 1 Farrand 34, 258

76

As a result of his elitism, Morris preferred that new territories
which might be acquired by the United States be maintained
as provinces or colonies and not allowed to ascend to political
and sovereign equality with the original states:
“I always thought that when we would acquire Canada and
Louisiana it would be proper to govern them as provinces and
allow them no voice in our councils. In wording the third
section of the fourth article (the Property Clause) I went as far
as circumstances would permit to establish the exclusion.
Candor obliges me to add my belief that had it been more
pointedly expressed, a strong opposition would have been
made.”
Gouverneur Morris to Henry W. Livingston, Morrisania, December 4th, 1803

As a dominant participant in the deliberations of the
Constitutional Convention, Morris had great influence
on its outcome. Most particularly, Morris was able to
add his particular slant to the constitutional text itself
since he was also the one who actually penned the
original document:
“The finish given to the style and arrangement of the
Constitution fairly belongs to the pen of Mr. Morris.”
Madison to Mr. Sparks, Montpellier, April 8, 1831, Elliot's Debates. vol.1,
507;

“That instrument (the Constitution) was written by
the fingers which write this letter.” Gouverneur Morris to
Timothy Pickering, in Congress. Morrisania, December 22, 1814, Elliot's
Debates. vol. 1, 507.

In a letter to his friend, Henry Livingston, Morris confessed to
having crafted wording in the Property Clause which could be
construed as allowing the possession of Canada and Louisiana
(the L. Purchase) as “provinces” with “no voice in our
councils” even though no such authority was allowed under
the federal trust respecting federl territorial and public lands.
To understand what Morris did, we must return to the
Resolution of 1780 as well as to the Land Ordinance of 1784
and the Northwest Ordinance of July, 1787, the very summer
of the Constitutional Convention.

Notice in each of the following historic documents that the “regulations
of Congress” are joined to the act of disposition by a preposition:
Resolution of Congress of 1780: “That the said lands shall be granted and
settled at such times and under such regulations as shall hereafter be agreed
on by the United States in Congress assembled, or any nine or more of them
....” (emphasis added)
Land Ordinance of 1784: “Third. That they (the States) in no case shall interfere
with the primary disposal of the soil by the United states in Congress
assembled, nor with the ordinances and regulations which Congress may find
necessary, for securing the title in such soil to the bona fide purchasers.”
(emphasis added)
Northwest Ordinance of 1787: “The legislatures of those districts or new
States, shall never interfere with the primary disposal of the soil by the United
States in Congress assembled, nor with any regulations Congress may find
necessary for securing the title in such soil to the bona fide purchasers.”

Prepositional phrases as in “under such regulations,”
or “for securing the title in such soil” are written to
modify a verb, noun or, adjective. In each of the
instances in the slide above, the modified verb
concerns “disposal” of the public domain.

It is clear that the Continental Congress which drafted
the three historic documents above intended that its
“rules and regulations” respecting the territorial and
public lands would be for a singular purpose and that
purpose is their disposal.

Now consider the manner in which Morris crafted the
Property Clause of Article IV:
“Congress shall have the power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States.”
Where a preposition once linked the “regulations” of
congress to the act of disposal, we now have a conjunction.
This single alteration offers the impression that two distinct
powers are delegated to the Congress under this clause – the
“power to dispose” and the power to “make all needful rules
and regulations.”
What are the modern-day consequences of this subterfuge?

Two destructive and patently unconstitutional consequences
have derived from Morris’ subterfuge:
1. Despite the historic understanding that extended retention
of the public domain in federal ownership would be “wanton
abuse of a delegated trust” and etc., Congress, in
1976, determined that it would be thereafter federal policy to
“retain the public lands in federal ownership.” (FLPMA)
2. The delegated power to make “all needful rules and
regulations” is no longer limited to those regulations needed
to carry out disposition. This power is now construed as a
“complete” legislative power “without limitation” equivalent
to that of both the national government under the
Constitution and also that of the states.

The subterfuge of Gouveneur Morris in crafting the
Property Clause is at the root of the greatest damage
done to the western states but it is not the only
source of that damage. The following is a list of other
cases that have contributed to the destruction of
state territorial sovereignty and, ultimately, to the
destruction constitutional federalism as conceived by
the Framers:

U.S. v. Gratiot, 39 U.S. 526, 1840, 1840: This case said that
“territories” and “land” were equivalent terms even though
pre-statehood territories are vastly different jurisdictionally
from public land within the admitted states. This error
allowed for the entry of federal territorial governance into the
states on these public lands.
Kohl v. United States, 91 U.S. 367, 1875: This case established
the “doctrine” that Congress was not actually required to
obtain state legislative consent before purchasing land with a
state as required under Art. I, sec. 8, cl. 17, the Enclave
Clause. This “doctrine” destroyed the notion of inviolable
state territorial sovereignty.

Leavenworth R. Co. v. Lowe, 114 U.S. 525, 1885: This case
erred to the Kohl case as a ““a doctrine authoritatively
lared” despite the plain words of the Enclave Clause and other
olute constitutional protections for state territorial
ereignty. This case went on to establish that once land has
en acquired by Congress under Kohl it may exercise
ernmental jurisdiction over the place to the extent necessary
meet the purposes for which the land was purchased.

lins v. Yosemite Park, 304 U.S. 518, 1938: This case established
t the “purposes of the government” for which it may acquire
d hold land are not limited to those purposes listed in under
Enclave Clause (forts, dockyards & etc.).

Kleppe v. New Mexico, 426 U.S. 529, 1976: This case made several
robust statements regarding the alleged authority of the United
States and Congress over the public lands within the several states:
“Even over public land within the states, the general government has a power
over its own property analogous to the police power of the several states, and
the extent to which it may go in the exercise of such power is measured by the
exigencies of the particular case; Congress exercises the powers both of a
proprietor and of a legislature over the public domain.”
“Although absent consent or cession a state retains jurisdiction over federal
lands within its territory, Congress retains the power to enact legislation
respecting those lands pursuant to the property clause of Article IV, sec. 3,
clause 2, of the federal Constitution, which confers upon Congress power to
dispose of and make all needful rules and regulations respecting property
belonging to the United States; the federal legislation under the property
clause necessarily overrides conflicting state laws under the supremacy clause
in Article VI, clause 2, of the federal Constitution.”

“Kleppe continued:
“Although the property clause in Article IV, sec. 3, clause 2, of
the federal Constitution, conferring upon Congress the power
to dispose of and make all needful rules and regulations
respecting property belonging to the United States, does not
authorize an exercise of a general control over public policy in
a state, it does permit an exercise of the complete power
which Congress has over particular public property entrusted
to it.”

“The (Property) Clause must be given an expansive reading,
for ‘[t]he power over the public lands thus entrusted to
Congress is without limitations.’”

Finally, in answer to the question, “where did
we go wrong?” it is noted that not once did the
states rise up and demand correction to the
judicial and congressional errors and
usurpations that are cited here. And yet it is the
states that were intended by the Framers to “be
not only vigilant but suspicious and jealous
guardians of the rights of the citizens against
encroachments from the federal government.”
Alexander Hamilton, Federalist No. 26

Statehood Howell & Redd

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