Why the Nevada vs. BLM Land Ownership Issue is ConfusingSubmitted by TommyPaine on Tue, 04/15/2014 - 00:43
It is a shame that Cliven Bundy is not more articulate in expressing his viewpoints. Most people think the federal government owns the land his cattle are grazing upon, and when asked he says no but does not have a clear explanation.
I did a little digging and found out why he does not have a clear explanation: because it IS confusing! But here is the gist of the story.
In 1787, the Constitution for the United States of America was written, and ratified in 1789, fully in 1791. Also in 1787, the Congress passed the Northwest Ordinance, which detailed how new states would be formed within the Northwest Territory. In that document, the concept of "equal footing" was established. The basic idea is that any new state would have equal footing (rights, powers, authority, whatever) as the original 13 states had. They would be equal partners in the union of states.
In 1845, there was a dispute over land between the United States government and the newly-formed State of Alabama (formed partly from land that Georgia ceded to the United States). The case went to the United States Supreme Court in the case of Pollard vs. Hagar 44 US 212 (1845), where they decided that when a new state is formed, it must be on equal footing (the principle established in the Northwest Ordinance) and this meant that once a new state is formed from land that was a United States territory, all sovereignty turns over to the new state. Furthermore, the federal government cannot "retain" jurisdiction over land that was a federal territory and becomes a state.
... if an express stipulation had been inserted in the agreement, granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative: because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a state or elsewhere, except in the cases in which it is expressly granted.
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 ... and no compact that might be made between her and the United States could diminish or enlarge these rights.
So, it was established that Congress could not "retain" property or jurisdiction within any new state, the same as it did not own property or have jurisdiction within the original 13 states, except for the express exceptions enumerated in Article 1, Section 8 of the Constitution.
In 1864, Congress passed an act to allow the people of the Territory of Nevada to create a constitution and form the State of Nevada. They did this, but there was a catch.
Remember, Lincoln was president and the war was going on. Congress (the Union, not the Confederacy) put in a clause that said that the people of Nevada must give up any rights to the land owned by the federal government within Nevada (which turned out to be over 90% of all land). But, it also said that such a condition was only valid until Congress waived it, in which case the federal government would no longer own that land.
But Congress never waived it. Not even to this day. No matter, it is irrelevant, since Congress does not have the constitutional authority to own ANY land outside of the District of Columbia, except for those properties specified in Article 1, Section 8 (military bases, post offices, federal court buildings, etc.). Congress also has NO authority to make these sorts of conditions on a state to be admitted into the Union. Remember, Lincoln was president and he corrupted the Congress at that time. None of them were following the Constitution or any other laws at that time. He was acting as a dictator.
This all happened during a war that saw all sorts of illegal behaviors by the federal government, and let's also not forget that silver was discovered in Nevada in 1858. The federal government wanted the land to pay for war and other debts.
Unfortunately, the state legislators of Nevada have had no backbone for more than 100 years. That land does not lawfully belong to the federal government. It never did.
In 1979, the Nevada legislature passed something -- it can't really be called a law, but it's not really a resolution, either -- that details these facts, and claims that Nevada has a "moral claim" to the lands claimed by the feds. The people in the Nevada legislature at least documented the facts, and put it into their legal code, while at the same time showing they have no guts to uphold the Constitution they claim to support and defend.
So, this is why Cliven Bundy says his cattle are not grazing on federal land. He's right. They are grazing on state land, but the state legislature has no guts to enforce their rights against the federal government. The claims by the federal government apologists that Nevada gave up that land when it was admitted into the Union is false. Such a congressional condition is not valid and has no legal force or effect.
Of course, that has not stopped the FEDERAL courts from siding with the FEDERAL government in the Bundy lawsuits. Yes, those federal courts have decided against Bundy, but they have done so in violation of the law.
This is why it seems so confusing in the media. Because it is!