Oregon Transfer of public Lands Presentation March 2015

Transfer Public Lands
On Terms of Equality

SO, WHY DOES THE FEDERAL GOVT
HAVE TITLE ANYWAY??

U.S. Constitution
Article IV, Section 3, Clause 2
– New States
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.

From the Journals of the Continental Congress, Tuesday,
October 10, 1780, pages 915-16:
“Resolved, That the unappropriated lands that may be
ceded or relinquished to the United States, by any particular
states, . . . shall be disposed of for the common
benefit of the United States, and be settled and
formed into distinct republican states, which
shall become members of the federal union, and have the
same rights of sovereignty, freedom and
independence, as the other states . . .
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.”

By the United States in Congress assembled. April 23, 1784 : Resolved,
that so much of the territory ceded, or to be ceded by individual states,
to the United States … shall be divided into distinct states in the
following manner ...
“THIRD. That they 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.
…
That … such state shall be admitted by its delegates into the
Congress of the United States, on an equal footing
with the said original states …”

Territory of the United States, North-West of the River Ohio
(Northwest Ordinance)
“… to provide also for the establishment of States,… and for
their admission to a share in the federal councils on an
equal footing with the original States …
… The legislatures of those … 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 …”

Mr. WILSON ... There was nothing in the Constitution affecting one way or the
other the claims of the U. S. & it was best to insert nothing leaving every
thing on that litigated subject in statu quo.
Mr. MADISON ... He thought it best on the whole to be silent on the
subject. He did not view the proviso of Mr. Carrol as dangerous; but to make it
neutral & fair, it ought to go farther & declare that the Claims of
particular States also should not be affected. …
Mr. CARROL withdrew his motion and moved the following. "Nothing in this
Constitution shall be construed to alter the Claims of
the U. S. or of the individual States to the Western
territory, ...."
Madison Constitution Debate
Tuesday, August 30, 1787

PRESIDENT
ANDREW JACKSON
1767-1845
“… it is the real interest of each and all the States in the
Union, and particularly of the new States, thatthe
price of these lands shall be
reduced and graduated, and that after
they have been offered for a certain number of years
the refuse remaining unsold shall
be abandoned to the States and
the machinery of our land system
entirely withdrawn. It can not be supposed
the compacts intended that the United States should
retain forever a title to lands within the States which are of
no value, and no doubt is entertained thatthe
general interest would be best
promoted by surrendering such
lands to the States.”

Equality of States
Matters for Oregon

It Matters for Oregon’s Public Safety…

Liberty cannot exist,
hence Life has no real
meaning, without
the right and control
(self government)
of Property.

Property
“Man—has three great rights ... the
right to his life, the right to his liberty,
the right to his property. ... The three
rights are so bound together as to be
essentially one right. To give a man
his life, but deny him his liberty, is to
take from him all that makes his life
worth living. To give him his liberty,
but take from him the property
which is the fruit and badge of his
liberty, is to still leave him a slave.”
George Sutherland
U.S. Supreme
Court Justice
1921

Terms of Equality?
Why Not Us?

Rights we don’t know
are no better than rights
we don’t have.
Rights we don’t
exercise are no better
than rights we don’t
have.

Better Access  Better Health  Better Productivity

US Senator Lisa Murkowski
“We Can’t Afford to Pay Counties to NOT Utilize their Resources…”

This… not This…
We’re Talking About

Which western State
successfully compelled
the transfer of its public
lands with these
arguments?

Successful arguments for the transfer of
public lands:
1. Federal control over vast amounts of
public land within the State (a) restricts the
State’s ability to provide for and manage
the growth and progress of the State; (b)
harms the State’s ability to improve,
protect, and manage its resources; and
(c) is detrimental to the State’s ability to
generate revenue.

Successful arguments for the transfer
of public lands:
2. The statehood enabling act
terms created an obligatory
compact such that any act by the
federal government to delay the
transfer of the public lands would
undoubtedly be an infraction of
the compact.

Successful arguments for the transfer
of public lands:
3. Such an oppressive system of
federal control over lands within a
State has implications of the
deepest magnitude and demands
the most serious attention of
Congress.

Successful arguments for the transfer of public
lands:
4. Questions of the highest importance to the
State and of the most intense interest of its
citizens:
a. Is it fair that the State is deprived
of the essential powers and
authority possessed by other
states to the east?

4. Questions of the Highest Importance to the
State:
b. Should the State be deprived
of the ability to protect the
health, safety and welfare of its
people?

State:
c. Why shouldn’t the State have the
same authority to improve and
regulate the growth and progress of
the lands within its boundaries
according to its own views of
prosperity and happiness as
possessed and exercised by other
states to the East?

State:
d. Is it fair that eastern states
should subsidize the State because
the federal retention of lands
deprives the State of the ability to
generate revenue from vast areas
of land within its limits?

State:
e. Why should the federal government
exercise within the State purely municipal
powers like land use and planning regulations
(i) that don’t exist in other states to the east;
(ii) which only the State and its subdivisions
have the right to exercise, and (iii) which the
federal government is not constitutionally
authorized to exercise without the consent of
the state legislature?

State:
f. Is a claim to such extraordinary
powers by the federal government
(i) consistent with the rights
reserved to the States by the
Constitution or
(ii) are they expressly granted
anywhere in the State’s enabling
act?

State:
g. Does the federal government
have any valid and binding
right to discriminate against
new States in the west by
retaining forever these federal
lands?

Illinois!
Its lands were more than 95% federally controlled for DECADES!

IN THE HOUSE OF REPRESENTATIVES.
February 21, 1848
Mr. Ficklin [Orlando B. Ficklin, D-IL], on leave, introduced the following bill: which
was read twice, and referred to the committee on Public Lands.
A Bill
To cede the public lands within the limits of the new States
on certain conditions therein mentioned.
Whereas, the land within the limits of the original
States of the Union, as well as the unappropriated
“crown lands” claimed by different States, were
acquired by the blood and common treasure of the
whole nation, and rightfully belong to the States,
whether new or old, within whose limits the same
are situated;

February 21, 1848
A Bill
… whereas, the harmony and successful
working of our federative system require a
perfect equality of rights amongst the
several States of the Union, as independent
political sovereignties;

February 21, 1848
A Bill
… whereas, the new States, admitted into the
Union, cannot be on an equality with the original
States without the right of eminent domain to the
public lands, within their respective limits, as a
necessary incident to sovereignty, whether such
lands were acquired by conquest, treaty, or
otherwise;

February 21, 1848
A Bill
… and whereas this principle, so just in itself, has
been recognized by Congress, as well in ceding to
the State of Tennessee the public lands within her
limits granted by North Carolina to this government,
as by admitting the State of Texas into the Union,
she retaining her public domain; therefore –

A Bill
… Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled, That all the public and
unappropriated lands within the States of Ohio,
Indiana, Illinois, Missouri, Alabama, Mississippi,
Arkansas, Louisiana, Michigan, Florida, and Iowa,
with the exception of the sites of fortifications, navy
and dock yards, arsenals, magazines, and all other
public buildings and grounds for the same, be, and
the same are hereby, ceded to the several States,
within the limits of which they are respectively
situated …

3 Fundamental Truths
1. The Statehood Terms Are The Same for the
transfer of federally controlled lands for all newly
created states east and west of Colorado;
2. It’s Already Been Done Before!
3. It’s The Only Solution Big Enough to secure
Better Access, Better Health and Better
Productivity for our lands and our nation.

“‘[T]he consequences of admission are
instantaneous, and it ignores the uniquely
sovereign character of that event … to
suggest that subsequent events [acts of Congress]
somehow can diminish what has already been
bestowed.’ And that proposition applies a fortiori
[with even greater force] where virtually all
of the State’s public lands . . .are at
stake.”
2009 U.S. Supreme Court
Hawaii v. Office of Hawaiian Affairs
(Unanimous Decision)

Equality of States Essential to
Republic
“…‘the constitutional equality
of the States is essential to
the harmonious operation of
… the Republic ....”
Shelby County v. Holder, 570 U.S. ___ (2013)

Equal Sovereignty is
Fundamental
“… ‘fundamental principle
of equal sovereignty’ among the
States.” …
“… our Nation ‘was and is a
union of States, equal in power,
dignity and authority.’”

IL, MO, IN, AR, LA, AL, MS, Fl, were as much as 90% federally
controlled for decades ...

One Man...
One LEADER...
Refused To Be Silent or Take
“NO”
for an Answer

“... my election to the Senate of the United
States ... found me doing battle for an
ameliorated system of disposing of our
public lands; and with some success. I
resolved to move against the whole
system ... I did so in a bill, renewed
annually for a long time; and in speeches
which had more effect upon the public
mind than upon the federal legislation ...”
U.S. Senator
Thomas Hart Benton
(D-MO)

“They were as a stepmother, instead of a
natural mother: and the federal government
being sole purchaser from foreign nations,
and sole recipient of Indian cessions, it
became the monopolizer of vacant
lands of the West: and this monopoly,
like all monopolies, resulted in hardships
to those upon whom it acted.”
U.S. Senator
Thomas Hart Benton
(D-MO)

“Few, or none of our public men, had
raised their voice against this hard policy
before I came into the national councils.
My own was soon raised there against it:
and it is certain that a great amelioration
has taken place in our federal land policy
during my time: and that the sentiment of
Congress, and that of the public
generally, has become much more liberal
in land alienations; and is approximating
towards the beneficent systems of the rest
of the world.”
U.S. Senator
Thomas Hart Benton
(D-MO)

“But the members in Congress
from the new States should not
intermit their exertions, nor vary their
policy; and should fix their eyes
steadily upon the period of the
speedy extinction of the federal
title to all the lands within the limits of
their respective States ...”
Thirty Years View, Thomas Hart Benton
U.S. Senator
Thomas Hart Benton
(D-MO)

The Path Forward
to compel Congress to treat
Western States Equally:
* Education
* Negotiation
* Legislation
* Litigation

What Can I Do?
Sign the Petition
 Tell Someone
 Tell Your Leaders (AOC Resolution,
HB3444, SJM5)
 Be Part of The Only Solution Big
Enough

www.AmericanLandsCouncil.org
Text “Sign” to 801.416.2543

What Can I Do?
 Sign the Petition
Tell Someone
(Email, Facebook, Twitter, YouTube,
Carrier Pigeon, etc.)
 Tell Your Leaders (AOC Resolution, HB3444,
SJM5)
Enough

YouTube
American Lands Council Channel

What Can I Do?
 Tell Someone
Tell Your Leaders
(AOC Resolution, HB3444,
SJM5)
Enough

Extra Slides
“THE SOFT-MINDED MAN
ALWAYS FEARS CHANGE.
HE FEELS SECURITY IN
THE STATUS QUO AND
HASAN ALMOST
MORBID FEAR OFTHE
NEW. FOR HIM,THE
GREATEST PAIN ISTHE
PAIN OFA NEW IDEA.”
MARTIN LUTHER KING, JR.

What Can I Do?
 Tell Someone
 Tell Your Leaders (AOC Resolution, HB3444, SJM5)
Secure Opportunity
through The Only
Solution Big
Enough

www.AmericanLandsCouncil.org
Info@AmericanLandsCouncil.org

20th Congress, 1st Session, House of Reps., Rep. No. 125, Graduate
Price of Public Lands, February 5, 1828
Mr. Duncan, from the Committee on the Public Lands, to which the subject
had been referred, made the following
REPORT:
If these lands are to be withheld from sale, which is the effect of the present system,
in vain may the People of these States expect the advantages of well settled
neighborhoods, so essential to the education of youth, and to the pleasures of social
intercourse, and the advantages of religious instruction. Those States will, for many
generations, without some change, be retarded in endeavors to increase their comfort
and wealth, by means of works of internal improvements, because they have not the
power, incident to all sovereign States, of taxing the soil, to pay for the benefits
conferred upon its owner by roads and canals.
When these States stipulated not to tax the lands of the United States until they
were sold, they rested upon the implied engagement of Congress to cause them to be
sold, within a reasonable time. No just equivalent has been given those States for a
surrender of an attribute of sovereignty so important to their welfare, and to an equal
standing with the original States.
A remedy for such great evils may be found in carrying into effect the spirit of the
Federal Constitution, which knows of no inequality in the powers and rights of the
several States;

20th Congress No. 726.
2d Session
APPLICATION OF MISSOURI FOR A CHANGE IN THE SYSTEM OF
DISPOSING OF THE PUBLIC LANDS.
COMMUNICATED TO THE SENATE JANUARY 26, 1829.
To the Senate and House of Representatives of the United States:
The memorial of the general assembly of the State of Missouri
respectfully showeth: That the system of disposing of the public lands of the
United States now pursued is highly injurious, in many respects, to the
States in which those lands lie, . . . with the present condition of the
western States. But the general assembly will state that a perseverance in
the present system manifestly appears to them to be . . . an infringement of
the compact between the United States and this State; and that the State of
Missouri never could have been brought to consent not to tax the lands of
the United States whilst unsold; and not to tax the lands sold until five years
thereafter, if it had been understood by the contracting parties that a system
was to be pursued which would prevent nine-tenths of those lands from
ever becoming the property of persons in whose hands they might be taxed.

Utah Senate Joint Memorial No. 4, 1915
Asking Congress for a More Liberal National Policy
in the Disposition of the Public Domain
“In harmony with the spirit and letter of the
land grants to the national government, … and
in conformity with the terms of our Enabling
Act, we, the members of the Legislature of the State of Utah,
memorialize the President and the Congress of the United States
for the speedy return to the former liberal National attitude
toward the public domain, … we hereby earnestly urge a policy
that will afford an opportunity to settle our lands and make use
of our resources on terms of equality with the older states, to the
benefit and upbuilding of the State and to the strength of the
nation.”
S.J. Mem’l 4 (Utah 1915), as reprinted in CDC NOV. 2012 REPORT, supra note 42, at 17.

This is NOT just a “Western Issue”

U.S. House of Representatives - Natural Resources Committee
State Forests Management Superior to Federal Forests
for Job Creation, Revenue Production, Local Economies and Fire Prevention
February 26, 2103

“The oath the several legislative,
executive, and judicial officers of the
several states take to support the
federal Constitution, is as effectual a
security against the usurpation of the
general government as it is against the
encroachment of the state governments.
For an increase of the powers by
usurpation is as clearly a violation of the
federal Constitution as a diminution of
these powers by private encroachment;
and that the oath obliges the officers of
the several states as vigorously to
oppose the one as the other.”Theophilus Parsons, January 23, 1788

“But there is another check, founded in
the nature of the Union, superior to all the
parchment checks that can be invented. If
there should be a usurpation, it will not be
on the farmer and merchant, employed and
attentive only to their several occupations; it
will be upon thirteen legislatures,
completely organized, possessed of the
confidence of the people, and having the
means, as well as inclination,
successfully to oppose it. Under these
circumstances, none but madmen
would attempt a usurpation.”
Theophilus Parsons, January 23, 1788

"… it will be their own
FAULTS, if the several
states suffer the federal
sovereignty to interfere in
the things of
their respective
jurisdictions."
John Dickinson (Fabius), Letter III, 1788 (all caps in original)

Forever Disclaim All Right and Title ...?
“That the people inhabiting said proposed States do
agree and declare that they forever disclaim all right
and title to the unappropriated public lands lying
within the boundaries thereof, … and that 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, …;”
Enabling Act of 1889 §4, Second
North Dakota 3.9% Federally Controlled Lands
South Dakota 5.4% Federally Controlled Lands

The Promises are the Same!
“That the people inhabiting said proposed States do
agree and declare that they forever disclaim all right
and title to the unappropriated public lands lying
within the boundaries thereof, … and that 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, …;”
Section 3, Utah Enabling Act, July 16, 1894
Utah
66.5% Public Lands

5% of Proceeds SHALL be paid to the State
“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 subsequent to the admission
of said States into the Union, …, shall be paid to the
said States, to be used as a permanent fund, …for the
support of common schools within said States,
respectively.”
Enabling Act of 1889 §13
North Dakota 3.9% Federally Controlled Lands
South Dakota 5.4% Federally Controlled Lands

“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 subsequent to the admission
of said States into the Union, …, shall be paid to the
said States, to be used as a permanent fund, …for the
support of common schools within said State.”
Section 9, Utah Enabling Act, July 16, 1894
Utah 66.5% Public Lands
The Promises are the Same!

“This separation of the two spheres is
one of the Constitution's structural
protections of liberty. … a healthy
balance of power between the
States and the Federal Government
will reduce the risk of tyranny and
abuse from either front.’”
Printz v. United States
521 U.S. 898 (1997)
States Are Supreme
In Their Sphere

“To quote Madison once again:
‘In the compound republic of America,
the power surrendered by the people is first
divided between two distinct governments,
… Hence a double security arises to the rights
of the people. The different governments will
control each other, at the same time that each will be
controlled by itself.’ The Federalist No. 51, at 323.”
521 U.S. 898 (1997)
States Are Supreme
In Their Sphere

“The Federal Government has
expanded dramatically over the past
two centuries, but it still must show
that a constitutional grant of power
authorizes each of its actions.”
U.S. Supreme Court Affordable
Care Act Decision (June, 2012)
Federal Govt Powers Limited
By Constitution

“The same does not apply to the States,
because the Constitution is not the source of
their power. … state governments do not need
constitutional authorization to act. ... Our cases refer to this
general power of governing, possessed
by the States but not by the Federal
Government, as the ‘police power.’”
States’ Powers NOT Limited
By Constitution

“The Framers thus ensured that powers
which ‘in the ordinary course of affairs,
concern the lives, liberties, and
properties of the people’ were held by
governments more local and more
accountable than a distant federal
bureaucracy.”
State Jurisdiction Checks
Federal Power

“The independent power of the
States also serves as a check on the power
of the Federal Government: ‘By denying any
one government complete jurisdiction
over all the concerns of public life, federalism
protects the liberty of the individual
from arbitrary power.’”
State Jurisdiction Checks
Federal Power

“In the typical case we look to the States to
defend their prerogatives by adopting “the
simple expedient of not yielding” to federal
blandishments when they do not want to
embrace the federal policies as their own."
States Must Act Like
Independent Sovereigns

“The States are separate and
independent sovereigns.
"Sometimes they have to act like
it."
States Must Act Like
Independent Sovereigns

The Constitution thus contemplates that a State's government
will represent and remain accountable to its own citizens. As
Madison expressed it: "[T]he local or municipal authorities
form distinct and independent portions of
the supremacy, no more subject, within their
respective spheres, to the general authority than the general
authority is subject to them, within its own sphere."
The Federalist No. 39, at 245.
521 U.S. 898 (1997)
States Are Supreme
In Their Sphere

The Line
“. . . this Constitution deserves
approbation [praise] . . . [for] the
accuracy with which the line is
drawn between the powers of
the general government and
those of the particular state
governments. . . . the powers are
as minutely enumerated and defined
as was possible . . .”
James Wilson, Pennsylvania Ratifying Convention, 4 Dec.
1787

The Line
"It must be done by the
States themselves,
erecting such barriers at
the constitutional line as
cannot be surmounted
either by themselves or by
the General Government."
Thomas Jefferson, Letter to Archibald Stuart,
1791.

What Can I Do?
 Do you believe that the right and control of property,
liberty, and self-government are fundamental to our
unprecedented American experiment?
 Do you believe these are things worth sacrificing for to
pass on to our children and grandchildren just like our
ancestors secured them for us?
 Do you believe that if Illinois, etc. can do it there is no
reason besides a lack of (i) knowledge, (ii) commitment,
and (ii) effort why we shouldn’t be able to do the very same
thing?
 Why Not Us?

The Line as Understood for nearly 150 Years
Governor Franklin Delano Roosevelt (D-NY), March 2, 1930
“Congress has been given the right to legislate on . . .
particular subject[s], but this is not the case in the
matter of a great number of other vital problems of
government, such as the conduct of public utilities,
of banks, of insurance, of business, of agriculture,
of education, of social welfare and of a dozen other
important features. In these, Washington must not be
encouraged to interfere.”

“State Legislatures will
 jealously and closely watch the
operations of this Government, and
 be able to resist with more effect
[better] than any other power on earth
can do; and
 the greatest opponents to a Federal
Government admit the State Legislatures
to be sure guardians of the people's
liberty.”
James Madison, Introduction of the Bill of Rights, The Annals of Congress,
House of Representatives, First Congress

“THE STATE GOVERNMENT WILL HAVE
THE ADVANTAGE OF THE FEDERAL
GOVERNMENT, whether we compare them
in respect to the immediate dependence
of the one on the other; to the weight of
personal influence which each side will
possess; TO THE POWERS
RESPECTIVELY VESTED IN THEM; TO
THE PREDILECTION AND PROBABLE
SUPPORT OF THE PEOPLE; TO THE
DISPOSITION AND FACULTY OF
RESISTING AND FRUSTRATING THE
MEASURES OF EACH OTHER.”
James Madison, Federalist 45

Ambitious encroachments of the federal government,
on the authority of the State governments,
(i) WOULD NOT EXCITE THE OPPOSITION OF A
SINGLE STATE, OR OF A FEW STATES ONLY.
(ii) They would be SIGNALS OF GENERAL ALARM.
(iii) Every government would ESPOUSE THE COMMON
CAUSE.
(iv) A CORRESPONDENCE WOULD BE OPENED.
(v) PLANS OF RESISTANCE WOULD BE
CONCERTED.
(vi) ONE SPIRIT WOULD ANIMATE AND CONDUCT
THE WHOLE.
(vii) unless the projected innovations should be
voluntarily renounced, the same appeal to a trial
of force would be made in the one case [foreign
invasion] as was made in the other [federal
intrusion].
(viii) ONE SET OF REPRESENTATIVES WOULD BE
CONTENDING AGAINST THIRTEEN SETS OF
REPRESENTATIVES
James
Madison,
Federalist 46

“It may safely be received as an axiom in our political system,
that the State governments will, in all
possible contingencies, afford complete
security against invasions of the public
liberty by the national authority.
(i) The [State] legislatures will have BETTER MEANS OF
INFORMATION.
(ii) They can DISCOVER THE DANGER at a distance; and
(iii) POSSESSING ALL THE ORGANS OF CIVIL POWER,
and
(iv) the confidence of the people, they can at once
(v) ADOPT A REGULAR PLAN OF OPPOSITION, in which
they can
(vi) COMBINE ALL THE RESOURCES OF THE
COMMUNITY.
(vii)They can READILY COMMUNICATE WITH EACH OTHER
IN THE DIFFERENT STATES, and
(viii) UNITE THEIR COMMON FORCES FOR THE
PROTECTION OF THEIR COMMON LIBERTY.”
– Alexander Hamilton, Federalist 28

Oregon Transfer of public Lands Presentation March 2015

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Oregon Transfer of public Lands Presentation March 2015

Editor's Notes