Comment: Our Debate Continues …

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Our Debate Continues …

Through the Treaty of Guadalupe, the federal government purchased approximately half a million square miles which included the former Mexican territory of Alta California (see: http://en.wikipedia.org/wiki/Treaty_of_Guadalupe_Hidalgo ). Alta California (see: http://en.wikipedia.org/wiki/Alta_California ) encompassed not only all of what was to be the State of California but other western States (e.g. Nevada) as well, whether they applied for statehood either by Enabling Acts or by statutory law. So at the time of the signing of the treaty, California was an unorganized territory of the United Stated federal government.

In 1850, Congress approved California’s admission into the Union by statutory law (see: http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=00... ). As a condition of statehood, Congress placed restrictions on the use of public lands within California. Section 3 of Chapter L titled, (“An Act for the Admission of the State of California into Union”) clearly says, “And it be further enacted, that the said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned; …”

So what does this tell us? It says that Congress can assume control of public lands that it owns within a State boundary as a condition of statehood under the authority of Article IV, Section 3, Clause 2.

The same authority applied to Nevada which was a territory as well, when it applied for admission into the Union by an Enabling Act as opposed to statutory law. As I’ve documented before which I will repeat again here, it said under Section 4, Clause 4 of the Enabling Act, “Third. That the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States; …”.

So like California, Congress placed public land restrictions within the boundaries of the newly formed State of Nevada.

Now to rebut some of your positional statements.

You wrote, “So, the original 13 states had their borders determined by mutual consent, and the Northwest Ordinance defined how the first new states would be admitted, None of these states ceded any of their land to the federal government as a "condition of statehood."

Let’s examine this further. The 14th State admitted into the Union was Vermont. As I stated in my previous comment, there were boundary disputes between seven of the original 13 states such as between New York, New Hampshire and Vermont. These disputes had to be settled before Vermont would apply for statehood
(see: http://en.wikipedia.org/wiki/Vermont_Republic#Union ). Virginia also ceded its territory north and west of the Ohio River to the federal government which became the Northwest Territory. Kentucky as part of the new territory, could then survey and define its land boundaries which would have been a requirement to be admitted into the Union as a Sovereign State (see: http://en.wikipedia.org/wiki/State_cessions ). So at the risk of repeating myself that is what I meant; these land settlements among the seven original states had to take place in order for new states to be admitted into the Union, effectively as a “condition of statehood.”

You wrote, “The federal government has no authority to withhold land and/or jurisdiction when a state is formed from former federal territory. That is a violation of equal footing. Nothing you have presented shows any evidence otherwise.”

That is incorrect. In United States v. Gardner this entire issue with public lands in Nevada is excruciatingly explained (see: http://caselaw.findlaw.com/us-9th-circuit/1061959.html ).

Here the federal circuit court affirmed, “The Equal Footing Doctrine, then, applies to political rights and sovereignty, not to economic or physical characteristics of the states. Moreover, the Equal Footing Doctrine applies primarily to the shores of and lands beneath navigable waters, not to fast dry lands. Therefore, the Equal Footing Doctrine would not operate, as Gardners argue, to give Nevada title to the public lands within its boundaries.”

Therefore this case clearly explains in great detail the difference between the Equal Footing Doctrine as applied to the original 13 States and federal control of public lands within State boundaries that were formally territories.

You wrote, “Your statement about eminent domain is a red herring. Eminent domain only applies where a government has jurisdiction. The states cannot employ it within the District of Columbia, and the feds cannot do so within the states. Period. Full stop.”

My comment about eminent domain as authorized in the 5th Amendment was not written to distract you away from our roaring debate :). I was simply responding to your original retort titled, “The treaty does not change anything”. There you wrote, “The 5th Amendment does not grant the federal government any power to take land from a state.”

That is correct as I pointed out and will repeat that eminent domain does not apply to State property. However it does apply to private property to be taken solely for public use with just compensation given to the owner (see: http://eminentdomain.uslegal.com/ ). Think of all the private land that’s being acquired for pipelines traversing interstate commerce. So that means, Tommy, that your house located within the great State of Liberty and Freedom can be claimed by the federal government as long as they pay you the 10 million gold doubloons the market says its worth. Of course the government would have to sue you for it (due process) in district court as also required by the 5th Amendment.

You wrote, “Finally, we get to the Nye case. First of all, it is not a Supreme Court case.”

I never wrote the Nye case was heard in the Supreme Court. What I wrote was this, “In 1994 Nye County also claimed dominion over public lands within its jurisdiction based upon the Nevada State statute. The U.S. government brought suit in federal court claiming adverse legal interest and named the State of Nevada and Nye County as defendants (see: http://www.leagle.com/decision/19962028920FSupp1108_11870 ).”

The reference to the Supreme Court that I used was to address the Pollard's Lessee v. Hagan case in furtherance of our discussion around the Equal Footing Doctrine.

Finally my dear patriotic friend, we are completely and indubitably in agreement that something is rotten in Washington.