by Jack Swift
MANIFEST DESTINY – An Analytic View of Federal Ownership
In the great dispute over utilization of our Federal lands in the West, the attempt is frequently made to end run the arguments over how best to manage those lands by asserting the Federal government has no capacity to own the lands. The argument goes that since the Constitution is a delegation of enumerated powers, if there is no provision therein for ownership of land, the Federal government must lack standing to be a legitimate owner. This is not an idle question. It is said to have given Jefferson great pause prior to deciding to make the Louisiana Purchase.
However, there is excellent authority in the Constitution for Federal ownership of property including territory, which is simply a peculiar form of property.
The first line of attack is made by reference to Article I, Section 8, Part 17 of the Constitution which speaks to the powers of Congress. The section enumerates the power:
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding 10 Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all 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; “
The subject of this section is the exclusive jurisdiction of Congress over the lands described. It is a Constitutional prohibition against any State attempting to assert a concurrent authority as to these lands. It is in no sense a limitation on the Federal government’s capacity to own or acquire land or territory except in the instance where it seeks to acquire that land from State ownership. It does not address alternative acquisitions. The section is often called the “enclave clause.”
The Constitutional provision that speaks to Federal ownership of territory is Article IV, Section 3, Part 2. That provides:
“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; “
This “property clause” presupposes the capacity of the Federal government to own property. Otherwise, why state the authority of Congress over that which it may not possess? It should also be noted that the authority is also a matter of exclusive jurisdiction. The property clause enumerates the power of Congress and no one else. However, because the clause does not prohibit concurrent jurisdiction as the enclave clause does, Congress is free to establish concurrent jurisdiction should it choose to.
As a secondary approach, it is often argued that although the Constitution allows Federal ownership of territory, it is the intent that such ownership be only temporary. It is sometimes said that the section imposes a mandate to dispose of government owned territory. The “shall” portion of the section speaks to having the power to dispose of. It does not say “shall dispose of.” Such a power is simply one of the entitlements that go with ownership. Also, “dispose of” does not necessarily mean to “get rid of.” It also means to provide for the management of.
There is no Constitutional mandate to alienate the ownership of Federal lands.
As a third approach, it is argued that the tradition of the Northwest Ordinances established the policy that Federal ownership of territory was to be temporary and that all such owned land should be transferred to private ownership. It should be noted that there were three distinct Northwest Ordinances, one adopted in 1784 and supplemented in 1785 and a third in 1787 which repealed the original. The ultimate Northwest Ordinance related to a limited block of land north and west of the Ohio River. Notably, the Ordinance called for the sale and grant of Federal lands in the area, but it also provided that lands not sold and not taken by way of grant be returned to the Federal Treasury. The ordinance specifically provides for retained Federal ownership although it established a preferred policy of making Federal lands available for development by settlers.
A fourth approach to limit Federal authority relates to the concept of trust established by the sundry cessions of claims maintained by the original states. This approach calls for an understanding of the land situation when the Constitution was adopted. The colonies all had established lands which were recognized. Thus there were geographically recognized territories belonging to each state. Of concern, were the lands to the west of these established holdings. In this regard the various colonies had conflicting claims to the western frontiers. The settlement of these disputes as to which state owned what beyond their borders called for the various claimants to cede their claims to the Federal government with the understanding that the territories would be made available for grant or purchase to individuals and, after sufficient sales and grants, the territories would be admitted as new states. Those cessions specifically called for a temporary ownership on the part of the Federal government. These mandates for transfer arose from the terms of the various cessions of the respective claims. There is nothing Constitutional about those cessions. They were deed trusts undertaken to resolve specific and particular disputes.
A fifth approach goes to a concern for “equal footing” as to the creation of new states. Thus where the original states had claim to their sundry ownerships, a new state which had an equivalent claim should enjoy the same recognition. This happened in the case of admitting Texas to the union. It had acquired ownership of its lands in the course of its successful revolution from Mexico. Upon admission to the union, its lands were recognized and the Federal government attempted no claim to Texas lands. This was the same policy advanced with regard to the original states. Thus, where a state had established ownership rights, those rights have been recognized. However, among the new states, Texas was unique in having acquired ownership of land prior to achieving statehood.
The controversy regarding our western lands has to do with ownership of the lands acquired by the Federal government in the course of our Manifest Destiny. In that history, every form of acquisition took place: purchase – for instance, the Florida Purchase, the Louisiana Purchase and the Gadsden Purchase; cession of disputed claims, – for instance, the cession of the Northwest Territories by Great Britain; discovery – for instance, our claims to the Northwest by Lewis and Clark; and conquest – for instance, the Mexican American War with its ultimate Mexican Cession. In all these instances no western state existed prior to the acquisition of ownership of the territory by the Federal government. The lands at issue were in Federal ownership and will remain there unless the Federal government cedes them to the states.
As a last resort it is currently suggested that the various acts of admission of the states include an implied promise by the Federal government to grant, sell or cede the Federal lands within a new state to private (taxable) ownership. A traditional quid-pro-quo contract analysis might justify this. But it fails the offer- and acceptance contract analysis. The Union offered the people of the particular territory statehood upon acceptance of specific conditions. Specifically the new state had to agree not to challenge Federal title to lands and not to tax Federal property. The reality is that the affected states are now simply attempting to avoid the conditions they agreed to.
The Federal government can legally own territory within the sundry states. The legitimacy of its ownership is well established by traditional chain of title analysis.
The great question is how Congress could have managed these resources so well for our first hundred years and then created the current disaster during our second one hundred? The answer lies in a change of policy.
From the beginning, national policy was to make resources available to settlers either as compensation for service in the Continental Army, as grants to citizens of claimant states, or as a form of revenue generation by way of sales. This was the policy of the Northwest Ordinance. We saw this expanded by Lincoln with the Homestead Act. Later we had an on-going series of railroad and wagon road grants. This policy culminated in the “Gilded Age,” a period of exponential expansion, innovation and industrialization.
One hundred years ago, our government fell victim to the Progressive Movement.
The policy the Progressives introduced was a form of intellectual elitism. In their view, the average citizen was either too ignorant or too evil to be trusted with the proper management of resources. Only those progressively educated and certified to be experts could be trusted. The result has been government by a bureaucracy of experts, lack of accountability, and failure of management. We see this on all fronts but most particularly with regard to our lands, our natural resources, and our economy.
The solution to our problems in the West lies not in legalistic sophistry. It calls for a long, hard look at the philosophy of Progressivism. It then demands the arduous political battle necessary for the overthrow of the elitist aristocracy Progressivism has created.
Jack H. Swift, J.D. © May, 2014