The “Bundy stand-off” in Oregon at a federal wildlife refuge has triggered (or, rather, re-triggered) questions about the constitutionality of federal land ownership. Westerners in particular question why the federal government should own nearly 30% of the country. In the West, the issue is particularly important. The federal government has title to about half the territory of the eight Rocky Mountain states, the west coast states, and Alaska. The share of ownership in each of those states ranges from about 30% to about 88%. (Exact figures vary according to the mode of calculation.) Westerners who work with the land tend to hold very critical views of how the federal government manages its holdings.
Over a decade ago I became interested in what the Constitution, as the Founders understood it, had to say about federal land ownership. I researched prior writings on the subject. As often happens, I found most of the relevant legal “scholarship” to be of poor quality. Liberal writers baldly claimed that the federal government could own any land it wants to, however it wants to, for any purpose–and that anyone who disagreed was an “extremist.” Conservative writers usually contended that, except for land held by permission of a host state as an “enclave,” the Constitution required the federal government to grant all in-state acreage to the respective state governments. The evidence marshaled for both conclusions was both scanty and weak. The modern Supreme Court has sided with the liberal view. But the Court’s decisions are few and summarily written. They offer almost no useful explanation.
As has happened so often, therefore, I had to begin anew. I studied the Constitution’s text, the records surrounding the Constitution’s adoption, and other materials. From them, I was able to define with a reasonable degree of certainty the scope of the federal government’s power to acquire, retain, manage, and dispose of land. My conclusions were published in Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005). In a nutshell, my findings were:
* Under the Property Clause (Art. IV, Sec. 3, Cl. 2), land titled to the federal government and held outside state boundaries is “Territory.” Federal land held within state boundaries is “other Property.”
* If the host state agrees, the federal government can acquire an “enclave” within the state under the Enclave Clause (I-8-17). This grants governmental jurisdiction to the federal government, but the federal government has to acquire title separately. Washington, D.C. (the most important enclave), for example, is under federal jurisdiction, but much of the land is held by other parties, including individuals.
* The Property Clause gives Congress unconditional power to dispose of property and authority to regulate what is already held. It does not mention a power to acquire.
* Under the Treaty Clause (II-2-2; see also Article VI), the federal government may acquire land outside state boundaries. As long as the area is governed as a territory, the federal government may retain any land it deems best.
* As for acreage (”other Property”) within state boundaries: Under the Necessary and Proper Clause, the federal government may acquire and retain land necessary for carrying out its enumerated powers. This includes parcels for military bases, post offices, buildings to house federal employees undertaking enumerated functions, and the like. It is not necessary to form federal enclaves for these purposes.
* But within state boundaries the Constitution grants no authority to retain acreage for unenumerated purposes, such as land for grazing, mineral development, agriculture, forests, or parks.
* Once a state is created and is thereby no longer a territory, the federal government has a duty to dispose of tracts not used for enumerated purposes.
* In the process of disposal, the federal government must follow the rules of public trust. It would be a breach of fiduciary duty for the feds to simply grant all of its surplus property to state governments. Each tract must be disposed of in accordance with the best interest of the American people. For example, natural wonders and environmentally sensitive areas (such as those now encompassed by the national parks) might be conveyed under strict conditions to state park authorities or (as in Britain) to perpetual environmental trusts. Land useful only for grazing, mining, or agriculture should be sold or homesteaded, with or without restrictions. The restrictions might include environmental protections, public easements, and protection for hunters and anglers.
Most states were admitted to the union pursuant to treaties, agreements of cession, and/or laws passed by Congress. These are called organic laws. They include, but are not limited to, enabling acts and acts of admission. These laws cannot change the Constitution, but they have some interesting ramifications for federal land ownership. That is a topic for another posting.
My article has been cited widely. But it will not surprise you to learn that many reject the conclusions. Liberals are unhappy, because they want to keep much of our territory socialized. Conservative land activists are disappointed because they want the federal government to convey land to the state governments, not dispose of it in other ways. It is significant, however, that no one has even tried to rebut my conclusions or the evidence for them.
The evidence and the details of how I reached my findings are in the article. Since its publication I’ve uncovered additional evidence, and it has generally corroborated my findings.
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