Resolution Demanding that Congress Convey Title of Federal Public Lands to the States
This resolution urges the US federal government to extinguish title and government jurisdiction over public lands that are held in trust by the US federal government and convey title and jurisdiction to willing states in which the federal public lands are located as was promised in congressional resolutions in 1780, the Land Ordinance of 1784 and the Northwest Ordinance of 1787, among others. Currently, huge swaths (over 50 percent) of the land in our nation’s western states are controlled by the federal government making it impossible for states to tax this land to fund education, grow state economies and generate high-paying jobs. Further, federal control prevents the states from accessing the abundant natural resources contained on these lands. This resolution seeks to remedy this situation; such efforts are not unprecedented. In 1828 the then western states of Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama and Florida successfully wrested control of their federally held lands from the US federal government. This resolution seeks to provide the same legal framework for today’s western states to do the same.
WHEREAS, noted economist, John Kenneth Galbraith, stated, “Where socialized ownership of land is concerned, only the USSR and China can claim company with the United States;”
WHEREAS, more than fifty percent (50%) of all lands in the Western United States are still controlled by the federal government;
WHEREAS, less than five percent (5%) of all lands east of Colorado (and Hawaii) are federally controlled;
WHEREAS, unleashing in a responsible manner the trillions of dollars of abundant resources locked up on federally controlled lands — and with them American independence, ingenuity and prosperity — is the only solution big enough to realistically and sustainably resolve national deficits persistently in excess of $1 trillion a year, an exponentially increasing national debt presently over $16 trillion, and mounting national liabilities for unfunded obligations of tens of trillions of dollars;
WHEREAS, because the budgets of all States are precariously dependent (30-50% for most States) upon federally sourced funds, realistically and sustainably reducing national unemployment, debts, deficits and unfunded obligations, and growing national Gross Domestic Product is a matter of present and serious moment for all States;
WHEREAS, federal management policies on the public lands are harming the lands and natural resources – for example, because of the inordinate buildup of fuel in the national forests due to decades of unduly restrictive federal “preservationist” policies, the FBI and Department of Homeland Security have recently issued criminal activity alerts warning that Al Qaeda is actively publishing in their “Inspire” terrorism magazine of the opportunity to burn down our national forests — causing billions of dollars in damage and destroying our watersheds for decades — with only a few matches;
WHEREAS, the promise and duty of the federal government to timely dispose of the public lands is the same in the statehood compacts (i.e. enabling acts) for all newly created states both east and west of Colorado;
WHEREAS, the promise and duty to dispose of the public lands originates from a “solemn compact” among the States in 1780, during the Revolutionary War, whereby the States ceded their “claims” to all western lands to the national government on condition that it timely dispose of the lands to create “distinct republican states with the same rights of sovereignty, freedom and independence as the other states” and to use the proceeds, as there may be, to pay for the War and the resulting national debt;
WHEREAS, this “solemn compact” established a “claim” for the United States to pay the national debt and “claims” for all States that western lands be timely disposed of only to create equally “distinct republican states;”
WHEREAS, the records of the constitutional debate make clear that Article IV, Section 3, clause 2 of the U.S. Constitution (the “Property Clause”) grants Congress “the power to dispose of and make all needful rules and regulations respecting the Territory and other property belonging to the United States;” merely for the purpose of preserving the status quo of the “solemn compact” of 1780 regarding the federal government’s promise and duty to timely dispose of the western lands to create distinct republican states and to only use the proceeds to pay the national debt;
WHEREAS, the Property Clause also establishes that “nothing in this Constitution shall be so construed as to Prejudice any claims of the United States, or of any particular State” viz. “claims” on the part of the United States for raising revenue to pay the national debt and “claims” on the part of all States that the western lands be timely disposed of only to create equally distinct republican states;
WHEREAS, the federal government had previously controlled for decades as much as ninety percent (90%) of all lands in States such as Indiana, Illinois, Missouri, Arkansas, Louisiana, Mississippi, Alabama, and Florida;
WHEREAS, these states joined together and persistently pressured Congress to honor their statehood promise and “solemn compact” for the timely disposal of their public lands;
WHEREAS, the Resolution of Illinois of February 2, 1829, which is illustrative of the numerous resolutions from this assembly of States, decried that any delay on the part of the federal government in disposing of their public lands “operates as a virtual infraction of the compact” and further, that “Should the present oppressive system continue, and no amelioration take place, it will not be denied that this question is susceptible of being presented in so grave an aspect as to involve considerations of the deepest magnitude, and demand the most serious and enlightened reflection of those charged with the interests of the confederacy.”
WHEREAS, the Public Lands Committee Report of the 20th U.S. Congress, dated February 5, 1828 found “If these lands are to be withheld, 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 . . . 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.”
WHEREAS, after the national debt was once retired in the early 1830s, Congress, in 1833, passed legislation to use proceeds from disposing of public lands for other “general purposes” and President Andrew Jackson, in vetoing this legislation, issued a broad, contemporaneous history of the federal duty to timely dispose of the western lands, clarifying the primary disposal duty under the “solemn compacts” (in part) as follows: “… it is the real interest of each and all the States in the Union, and particularly of the new States, that the 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 that the general interest would be best promoted by surrendering such lands to the States.”
WHEREAS, the U.S. Supreme Court confirmed the federal government’s solemn trust obligation to “extinguish title” to the public lands stating “the United States never held any municipal sovereignty, jurisdiction or right of soil in and for the territory, of which Alabama or any of the new States were formed, except for temporary purposes, and to execute the trusts created by the acts of the Virginia and Georgia Legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty with the French Republic of the 30th of April, 1803, ceding Louisiana.” (Pollard v. Hagan, 1845);
WHEREAS, in 1976, the federal government enacted the Federal Land Policy Management Act (FLPMA) unilaterally declaring a change in federal public lands policy to “retain the public lands in federal ownership;”
WHEREAS, in lieu of depriving States of the sovereign right to tax their lands to fund essential government services, the federal government promised public lands states Payment In Lieu of Taxes (PILT) and Secure Rural Schools (SRS) funds, however, these funds only amount to a small fraction of lowest taxable value of such lands, and due persistent federal budget deficits, are subject to diminishing and uncertain federal appropriations;
WHEREAS, because PILT and SRS funds come from the general fund, states east of Colorado pay billions of dollars in taxes for the privilege of depriving public lands states of the right to tax and derive revenue from their lands;
WHEREAS, recently, the U.S. Supreme Court unanimously declared that Congress does not have the authority to unilaterally change the “uniquely sovereign character of a State’s admission” into the Union, particularly “where virtually all of a State’s public lands are at stake” (Hawaii v. OHA, 2009);
WHEREAS, even more recently in the Affordable Care Act decision, the U.S. Supreme Court admonished “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” and that “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 individual from arbitrary power.’” (NFIB et al. v. Sebelius, No. 11–393, June 28, 2012);
WHEREAS, in this same decision, the U.S. Supreme Court clarified that the independent power of the States to check arbitrary federal power is found only in acting like “separate and independent sovereigns” as follows: “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. The States are separate and independent sovereigns. Sometimes they have to act like it.”
WHEREAS, in the 2012 legislative session, the Utah legislature passed overwhelmingly with bipartisan support, and the Governor of Utah signed, HB148 Transfer of Public Lands Act to establish the framework for the federal government to transfer to the State of Utah its public lands — excluding all national parks, national monuments (save one), and all congressionally designated wilderness areas — on or before December 31, 2014;
WHEREAS, the State of Utah is actively engaged in the process of creating a Utah Public Lands Commission to analyze, prepare for, and negotiate with the federal government the orderly and timely transfer of its public lands to the State;
WHEREAS, other Western States have introduced, or are preparing to introduce, legislation similar to the Utah Transfer of Public Lands Act;
WHEREAS, the federal government also controls public lands in States east of Colorado, which remain subject to disposal;
NOW, THEREFORE, BE IT RESOLVED that, in the best interests of the nation, and of the affected States, and in honor of the solemn compacts exacted by the original 13 States, which the federal government has already honored to all States east of Colorado (and Hawaii), the State of [____] urges Congress, the President and the federal agencies and administration, in the most strenuous manner, to immediately engage in good faith communication, cooperation, coordination, and consultation with Utah, and each other willing State, regarding the timely conveyance of federal public lands directly to these States.
BE IT FURTHER RESOLVED that the State of [____] urges our U.S. Representatives and U.S. Senators, and all executive officers of this State, to exert their full powers to cooperate and assist Utah and the other States, their congressional delegations, executive officers and legislatures, in compelling the Congress to timely dispose of such public lands to Utah and each willing State, as their legislatures may designate.
BE IT FURTHER RESOLVED that the State of [____] pledges its support to Utah and other States for the timely transfer of such public lands as they may designate and expresses its utmost encouragement to the governors, attorneys general, other executive officers, legislatures, and citizens of these afflicted Western States in their valiant and nationally imperative efforts to responsibly unleash the trillions of dollars of abundant resources locked up on federally controlled lands, and with them American independence and ingenuity, as the only solution big enough to realistically and sustainably resolve national unemployment, deficits, debts, unfunded obligations and environmental degradation.
Approved by the ALEC Board of Directors on January 28, 2013.