By Glen Stonebrink, Guest Writer
History: A historical understanding of so-called federal lands is necessary in order to grasp the true “intent” of their existence and usage. From the Pilgrims of 1620 and the creation of the original colonies, there was no such thing as federal lands because there was no “federalism.” As the people of the colonies became equally and increasingly abused by the King of England, they found it necessary to join their efforts to address their concerns to the King – thus the birth of the Continental Congress, which later was used for their common defense and war against England. It was this newly created Continental Congress that started the road to federalism among the separate and sovereign states. Even though each state gave very little in rights or property, they did give away some degree of their power to federalism.
As the Revolutionary War was nearing its end and prior to the formation of “the United States” as we know it, two basic events were taking place: (1) the western colonies/states were looking to extend their western boundaries into the Ohio Territory in order to accommodate more settlers, which thus would create additional wealth for their individual sovereign states; (2) soldiers from the Revolutionary War soon would be returning to civilian life and were desperately seeking new soils to cultivate, but more importantly their promised wages for their service in the war.
Both of these events were giving rise to a problem. States with no western boundaries were not happy about the expansion of those that did, and the Continental Congress was not able to pay the back wages of the armies. To satisfy both issues the Northwest Ordinances (1784 & 1787) were adopted. The 1787 Ordinance codified how new states were to be formed: on equal footing with the original states in every respect whatsoever, and by selling the western lands the “federal government” could pay its debts. Obviously, there were many land grants and homestead previsions, but clearly these lands were to be “disposed of” – not retained!
It is critical to understand that in the beginning the original states agreed through the Northwest Ordinances that newly formed states were to enter the Union “on equal footing” with the original states in every respect whatsoever, including debts and obligations, and these lands were to be disposed to bonafide purchasers. This is where the debate about federal lands begins.
Intent: Who would have envisioned among the pilgrims, settlers, pioneers or especially the framers of the founding documents that someday there would be an overpowering federal government which would claim ownership over huge amounts (nearly 30%) of this newly formed country? NONE! The thirteen original and sovereign states never would have agreed to a central federal government owning large amounts of the soils within “their boundaries” as a price for statehood within the Union. In fact, before there were nine states (2/3 of 13) in agreement to forming the United States with a binding Constitution, there was an insistence that a Bill of Rights be produced that would limit the power of the federal government to only those things specifically listed within the Constitution, and everything else was to be retained by the individual states or the people.
The intent of ownership of the soils within each state’s boundaries was made extremely clear with the Northwest Ordinances’ Equal Footing Doctrine. The Continental Congress through the Northwest Ordinance, on July 13, 1787, provided that when each of the designated states in the territorial area achieved a population of 60,000 free inhabitants it was to be admitted “on an equal footing with the original States, in all respects whatever.”
To further emphasize the strength of this law that was to determine new statehood, Georgia and Virginia ceded their claim to large areas of western lands, but only on the condition that new states should be formed therefrom and admitted to the Union on an equal footing with the original States. Texas, on December 29, 1845, then an independent nation, “was admitted into the Union on an equal footing with the original States in all respects whatever.” In fact, since the admission of Tennessee in 1796, Congress has included in each State’s act of admission a clause providing that the State enters the Union on equal footing. The Act of Congress that admitted Oregon states “ACT OF CONGRESS ADMITTING OREGON INTO UNION [Approved February 14, 1859] Whereas the people of Oregon have framed, ratified, and adopted a constitution of State government which is republican in form, and in conformity with the Constitution of the United States, and have applied for admission into the Union on an equal footing with the other States….”
So if the founders of the Constitution did not indicate any intent on retaining large amounts of federal lands, what exactly were their intentions for the uses of federal ownership? The answer lies within the Constitution (Article 1, Section 8; Article IV, 5th Amendment and 9th/10th Amendments) and is supported by The Federalist Papers.
Article 1, Section 8 – Powers of Congress:
- To establish Post Offices and Post Roads;
- To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the 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….
Their intent is quite clear as to the reasons for federal ownership: roads, post offices, needful federal buildings, military facilities and dockyards. Nothing else is listed. There is not a clause that says “…and anything else Congress chooses any time they wish.” There is not a clause that says “…and Congress may choose to be prejudiced against certain states by retaining ownership of large quantities of land.” Or a clause that says “…and Congress does not have to treat new states on equal footing in every respect whatsoever with the original states.”
The key words in the above Constitutional language need close scrutiny in order to understand the full intent. “To exercise exclusive Legislation in all Cases whatsoever…” simply means the federal government would have full legal power to own and control their property within any particular state without any interference or taxation from that state. Does this mean then that since the Constitution grants power to the federal government to levy taxes, the government simply may buy all the land within a state and have full and unchecked power over the entire state? No! The state first must give away its control and power by Cession of particular States, and then the Congress (not just a federal agency) must agree. This means the two United States Senators from the state in question would have a strong voice, as well as the state’s members to the House of Representatives. How would a state agree to grant the federal government exclusive legislation? This is addressed with these words “…by the Consent of the Legislature of the State in which the Same shall be….” Again, the people who are elected to serve in the legislature of the state in question have the final say as to whether or not to grant the federal government these powers over lands within their state. James Madison wrote in Federalist Paper number 43: “And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated.” Madison makes it clear that the people’s voice through their representation in their legislature and Congress must be heard before powers are to be given away.
Was it the intent for the federal government to purchase lands and obtain exclusive powers on any land for any reason? Of course not, thus the reason for the final wording in Article 1, Section 8, Clause 17: “…for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” This limited ownership and specific activities were mentioned by Madison in Federalist Paper 43. If the founders had any thoughts of large holdings of lands within the states, they would have made it clear at this point. They knew full well that the people of the various states would not have agreed to the formation of a new nation had this been the case.
Article IV: This article of the Constitution has two important sections.
- Section 2, which states, “The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states.” Obviously, if more than half of Oregon’s land mass is owned and controlled by the federal government, the citizens of Oregon are not being “…entitled to all Privileges and Immunities of Citizens in the several states,” when other states east of the Rocky Mountains contain a very small percentage of federal ownership.
- Section 3, paragraph 2, which 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.” This section is vital because it only addresses “disposal,” not retention, of federally owned properties, which meant the intent was to do just that very thing (dispose of these lands), and this section addresses “no prejudice against any state.” Obviously, there is a huge prejudice against western states concerning federal ownership within their boundaries.
5th Amendment: The 5th Amendment to the Constitution and an important part of the Bill of Rights addresses the importance of private property. In fact, the wording “…nor be deprived of life, liberty, or property…” is similar and connected to the Declaration of Independence’s wording “…with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” The Declaration uses the terminology “unalienable rights” and the Constitution uses “…nor be deprived…” within the Bill of Rights. Both documents address “rights of the people.” Furthermore, historical letters point out that Jefferson and others considered using the word “property” in the place of “pursuit of happiness” in the Declaration. They concluded that property and pursuit of happiness were synonymous. However, the creators of the Bill of Rights, including George Mason, James Madison and Thomas Jefferson, did not overlook the opportunity to codify in the Constitution that private property was a right of the people, and knowing that private ownership of the land was indeed the avenue to pursuit of happiness. With huge federal ownership of lands, there is a direct conflict with the intent of both the Declaration of Independence and the 5th Amendment because it denies private ownership.
9th/10th Amendments: There would not have been enough states to agree to the Constitution and the formation of a central government had there not been a Bill of Rights forthcoming, especially including these two amendments to limit the powers of the federal government:
• 9th: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
• 10th: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Had the founders ever had any intentions to have the federal government retain or obtain large areas of land within the individual states beyond that explicitly specified in Article 1, Section 8, here was there opportunity to do so, but they did not. They did just the opposite: The wording is self-explanatory.
To conclude this understanding of the Constitution’s intent, here are the words of James Madison, also known as the Father of the Constitution, in his Federalist Paper number 45:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
The debate: The question is whether to sell the lands held by the federal government to private ownership or to grant the title to the individual states? There is little doubt that federally held lands have a great amount of value. Whether their value would equal the debt owed is not for this debate, but only if these lands could or should be disposed of by the federal government. To this, the answer is “absolutely.”
A prudent-minded person would have to conclude that the founders never envisioned the federal government owning large amounts of lands within the states, or they simply would have mentioned it in the Constitution. Since they did not, then they did not. There is no mention of designating wilderness areas, national forests, or grasslands, or any so-called “beautiful places” to be locked away forever. All the resources of the states were to be for the benefit of the inhabitants of the states or of the state itself.
Every founding document clearly specifies the intent of land holding of the federal government was to be small, limited and for specific purposes only. All other lands were to be in the ownership of the states or of the individual. Moreover, the intent was for the soils to be for productive uses to create wealth for the states and the nation. That, once again, is where we are today.
Sell these lands to bonafide purchaser, pay off our national debt, allow private ownership to makes these lands productive; and this nation will prosper and have a wonderful future.
 Federal laws that created national forestlands, monuments, grasslands, etc. have no standing within the intent of the Constitution or any other founding documents.
 In the book entitled History of the Oregon Constitution, the lands within Oregon’s boundaries were not intended for federal ownership, but rather for private ownership and productivity.
 Bonafide purchasers of grazing lands would be those producers currently with leases and/or qualified for leases under the Taylor Grazing Act of 1934. Purchase price would be based in connection with current leasing rates and on a 30-year amortization.
Glen Stonebrink was Executive Director of the Oregon Cattlemen’s Association (1998-2005) and previously served as Oregon’s State Executive Director of USDA federal farm programs under the Reagan and George H.W. Bush administrations. He held staff and administrative positions in the U.S. Congress and the Oregon Legislature and has been a rancher, a teacher, and a member of the Oregon National Guard. He lives in Rickreall, Oregon.