The Bundys, Oregon, Federal Land and the Constitution, Part 2

Norway, Turkey, Egypt, Germany, the Czech Republic -- the equivalent of US land held by the federal government. The 12 far West states' land is on average 58% federally held, while the federal government holds only 4% in other states. This has led to great controversy over land ownership and use in the West. Throughout America’s history, federal laws have kept some land and disposed of some. In the 19th century, laws encouraged settlement of the West by federal land grants. When Texas was annexed in 1845, Congress adopted a resolution allowing it to "retain all the vacant and unappropriated lands lying within its limits." In the 20th century, emphasis shifted to retention of federal lands. In 1976, Congress passed a law saying the federal government would keep all lands it then held. ~~~~~ Some states and supporters say state control of all land would mean less regulation and greater freedom for ranchers, miners, and recreationists, boosting state income. Critics say states don't have funds to maintain the land and would sell it off to private interests, cutting off public access. Utah and Idaho legislatures tried to legally take back federal land. But, the Idaho Attorney General said the state's constitution gave up claims to the land when Idaho joined the Union. Of course, Congress has the authority to turn over federal land to the states, but efforts to pass such a law have failed so far. ~~~~~ Federal lands are lands in the US whose ownership is claimed by the federal government under Article IV, section 3, clause 2 of the Constitution, called the Property Clause : "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...." The Supreme Court has upheld the broad federal powers to deal with federal lands. The key unanimous decision in Kleppe v. New Mexico held that "the complete power that Congress has over federal lands under this clause necessarily includes the power to regulate and protect wildlife living there, state law notwithstanding." ~~~~~ The basic question remains : how are federal lands created. The Constitution provides for federal ownership of territories that can become states, but also of areas held by the federal government under agreement with the state where the area is -- called the "Enclave Clause" (Article I, Section 8, Clause 17). The Enclave Clause says the federal government can have an enclave - an area surrounded by land owned by states, as Washington, DC - in which federal, not state, law prevails. But, enclaves may be held only for enumerated purposes -- under the Constitution's fundamental doctrine that only listed powers are granted to the federal government, with all other powers reserved to the states. State consent to the creation of an enclave is required and the federal government may be made to honor terms and conditions. The Enclave Clause was 'sold' to the 18th-century ratifying voters on the basis that enclaves would be small. Holding huge tracts of undeveloped land (like Yosemite National Park, 750,000 acres) as enclaves is not what the Founders envisioned. Therefore logically, states-rights legal scholars say non-enclave land held by the federal government under the Article IV Property Clause is also to be held only for enumerated purposes. Grazing, for example, is not an enumerated purpose. Non-enclave federal property within states is therefore subject to state law. Contrary to Supreme Court decisions, when the federal government owns non-enclave land, it should be treated as any other owner, as long as the state respects legitimate federal functions. ~~~~~ Dear readers, that's the Bundy standoff, raised to its constitutional level -- under the Constitution's states rights doctrine, states own most of the 28% of US land held by the federal government. The Bundys support the doctrine. The Justice Department hasn't litigated, as with Cliven Bundy. The FBI hasn't raided the Oregon building to arrest the Bundys -- a states rights standoff, like many political issues today.