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 …”

July 13, 1787, An Ordinance for the Government of the

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

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.

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

Oregon Trail

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

Douglas Complex Fire

Why The difference?

Why The difference?

Why The difference?

Why The difference?

Why The difference?

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?

Which western State

successfully compelled

the transfer of its public

lands with these

arguments?

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 BillTo 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;






… 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;






… 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;






… 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 –



… 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.’”

Shelby County v. Holder, 570 U.S. ___ (2013)

Why the Difference??

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? Sign the Petition

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

HAS AN ALMOST MORBID FEAR OF THE NEW. FOR HIM, THE

GREATEST PAIN IS THE PAIN OF A NEW IDEA.”

MARTIN LUTHER KING, JR.

What Can I Do? Sign the Petition

Tell Someone

Tell Your Leaders (AOC Resolution, HB3444, SJM5)

Secure Opportunity

through The Only

Solution Big

Enough

www.AmericanLandsCouncil.org

[email protected]

http://www.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 followingREPORT:

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, 1915Asking 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.

Liberty cannot exist,

hence Life has no real

meaning, without

the right and control (self government)

of Property.

This is NOT just a “Western Issue”

Why The difference?

Why The difference?

Why The difference?

Why The difference?

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)

So . . .

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, SecondNorth 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 individualfrom 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

Copyright (c) 2011 Ken Ivory All Rights Reserved




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

(ix) THE WHOLE BODY OF THEIR COMMON

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

News & Politics

Oregon Transfer of public Lands Presentation March 2015