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Thread: Important Answers About Ownership of Federal Land

  1. #1

    Important Answers About Ownership of Federal Land

    Ownership of Federal Land: Answers Suggested by the Bundy Standoff
    Tenth Amendment Center


    The Bundy stand-off in Nevada has induced several people to ask me about the extent to which the federal government can own land, at least under the Constitution’s intended meaning. As it happens, in 2005 I studied the issue in depth, and published the following article: Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005).

    In a nutshell, here’s what I found:

    (1) Most commentators on the issue have staked out one of two polar positions. One position, which is current U.S. Supreme Court doctrine, is that the federal government may acquire and own any land it wishes for any governmental purpose, not just for its enumerated powers. The other polar position is that the federal government may own land only for the purposes enumerated in the Enclave Clause (the national capital and “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings”) and that the “equal footing doctrine” requires that all other federal land within a prospective state be handed over the state government upon statehood. {The limitations the Federal Government has within the several states might be quite different in its territories or it might be just as well restricted there. The distinction is very important to note.}

    (2) In fact, both polar positions are false—and very clearly so. This shines through when you study the Constitution’s text, meaning, and background. By “background,” I mean its drafting history, the ratification debates, 18th century law, and so forth. However the constitutional text alone should be sufficient to cast both polar claims into doubt. The text of the Constitution grants the federal government no plenary power to hold land, only to dispose. A general power to hold is just not in there. The second polar position is also contradicted by the text: The equal footing doctrine is not there either. (It was a feature of certain pre-constitutional documents, such as the Northwest Ordinance.)

    (3) The Constitution grants the federal government authority to acquire real estate and other property to carry out any enumerated purpose, either in the exercise of a core power (such as “maintain a Navy”) or through the implied powers memorialized in the Necessary and Proper Clause. Thus, Congress may acquire land to build “post Roads” (limited access highways), house tax collectors, and build lighthouses under the Commerce Power.

    (4) Further, the Constitution’s Treaty Power authorizes the federal government to acquire territory.

    (5) However, land acquired—through, for example, the Treaty Power—may be held only for enumerated purposes. Land not needed for such purposes must be disposed of within a reasonable time. The federal government should have disposed of BLM grazing land long ago.

    (6) In fact, for the federal government to own a large share of American real estate (currently about 28 percent) is directly contrary to certain values the Constitution was designed to further.

    (7) “Disposal” does not require handing real estate over to state government. On the contrary, in many situations doing so would conflict with federal officials’ duties of trust. In each instance, disposal should be effectuated so as to further the general welfare. In the case of some parcels, it may mean transferring to state government. But it may also require selling to the highest bidder, or, in the case of environmentally sensitive lands, transferring to perpetual environmental trusts, as is commonly done in England.

    (8) The Enclave Clause (Article I, Section 8, Clause 17) is really more about governmental jurisdiction than ownership. The federal government can have an enclave in which much of the territory is titled to private parties—as is true of Washington, D.C. It’s just that in an enclave, federal rather than state jurisdiction is supreme. Enclaves may be held only for enumerated purposes (as signaled by the use of the 18th century legal term “needful”). State consent to creation of an enclave is required, and consent can be conditional upon the federal government honoring particular terms.

    (9) The Enclave Clause was sold to the ratifying public on the basis that enclaves would be relatively small. Holding massive tracts of undeveloped land (such as in Yosemite National Park, nearly 750,000 acres) as enclaves is not what the Founders had in mind. {NOTE: Yosemite National Park was established AFTER the Civil War in 1890. Yosemite Valley and osemite Valley and Mariposa Grove went to California under California state law. The powers exercised by United States Government were likely with respect to territorial government.}

    (10) This is signaled by the Constitution’s use of the word “Building.” In the 18th century, the term did not have to mean an enclosed space, but it did have to refer to a fabricated construction of some kind, since as a dockyard or (in modern terms) an airport runway.

    (11) But not every parcel of federal land need be an enclave: In fact, most are not and should not be. Non-enclave land owned by the federal government is held under the Property Clause (Article IV, Section 3, Clause 2), and should be held only for enumerated purposes. Grazing, for example, is not an enumerated purpose.

    (12) Non-enclave federal property within states is subject to state law. Contrary to current Supreme Court doctrine, when the federal government owns non-enclave land, the federal government usually should be treated like any other landowner, so long as the state respects the discharge of legitimate federal functions.

    (source/more)

    Related:
    Federal Land Retention and the Constitution’s Property Clause: The Original Understanding (PDF document/treatise)

    Last edited by allodial; 10-06-15 at 05:10 AM.
    All rights reserved. Without prejudice. No liability assumed. No value assured.

    "The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
    "It is the glory of God to conceal a thing: but the honour of kings is to search out a matter." Proverbs 25:2
    Prove all things; hold fast that which is good. Thess. 5:21.

  2. #2
    Originally, claims to land were ceded to the government of the United States by the several States (13 colonies).

    Also, government of the United States was formed, in part, to assume the war debts of the 13 colonies.

    The land and claims ceded, supposedly, were held in trust of "The People".

    The tyranny of corporations becomes more apparent with each passing day.
    Last edited by shikamaru; 10-10-15 at 01:14 PM.

  3. #3
    Quote Originally Posted by shikamaru View Post
    Originally, claims to land were ceded to the government of the United States by the several States (13 colonies).

    Also, government of the United States was formed, in part, to assume the war debts of the 13 colonies.

    The land and claims ceded, supposedly, were held in trust of "The People".

    The tyranny of corporations becomes more apparent with each passing day.
    They ceded their territories to the confederacy specifically named "The United States of America" ("The" does not operate as 'the' in that context--"The" is part of the name). The Northwest Ordinance and the related series of laws between 1785 and 1788 or so were rules for handling the territories. The non-imperial nature of The United states of America (i.e. the singular confederacy) and of the United states of America (i.e. the several states) seems to be apparent in that all territories were to become states rather than remain territories or possessions. Such may have changed with time and it seems mainly with the Civil War and the assassination of William McKinley (which some suggest to have been a coup). The French ceded the Sovereignty and Domain of Louisiana over to the United States with certain stipulations. In any case, the U.S. government like any trustee would be in breech of trust if it failed to adhere to the implicit or express terms of the trust agreement. In the case of large size of Federal land holdings out West, it might have something to do with the fact those States were formed after the Civil War. If the U.S. was operating only in its "Article I" or "Article II" capacity or capacities only after 1862 perhaps it could only offer limited services after that point like a food shop with certain equipment inoperable?

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    Relevance of the Royal Proclamation of 1763 to U.S.A. land history.

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    Relevance of Treaty of Cession of 1803 (i.e. Lousiana Purchase) to the U.S.A. land history.


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    Under the Treaty of 1818, this would be a joint British-American area for at least 10 years.

    The Treaty of 1818 set the boundary between the United States and British North America along the 49th parallel of north latitude from Minnesota to the "Stony Mountains"[2] (now known as the Rocky Mountains). West of those mountains was known to the Americans as the Oregon Country and to the British as the Columbia Department or Columbia District of the Hudson's Bay Company. (Also included in the region was the southern portion of another fur district, New Caledonia.) The treaty provided for joint control of that land for ten years. Both countries could claim land and both were guaranteed free navigation throughout. Source: Wikipedia
    Consider land in Alaska as a case in point. Washington and Oregon were part of an area that was a "joint" between the UK or Great Britain and the United States. California (i.e. Alta California or Upper California or even Nueva California) itself was a territory of Mexico at some point before it became under the United States. Maybe the Government of the United States (i.e. the Executive) was able to rename Mt. McKinley because of this.

    Keep in mind that the BLM was formed in 1946.

    Related:
    Our Hidden History of Corporations In the United States
    Last edited by allodial; 10-10-15 at 05:10 PM.
    All rights reserved. Without prejudice. No liability assumed. No value assured.

    "The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
    "It is the glory of God to conceal a thing: but the honour of kings is to search out a matter." Proverbs 25:2
    Prove all things; hold fast that which is good. Thess. 5:21.

  4. #4
    Senior Member Michael Joseph's Avatar
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    When one looks carefully at the notes in circulation we see in uppercase letters THE UNITED STATES OF AMERICA. And if one looks even more carefully one will see that Public Trustees have signed the notes.

    Treasurer of the United States and Secretary of the Treasury

    Ten Dollars.pdf
    Last edited by Michael Joseph; 10-10-15 at 06:46 PM.
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  5. #5
    Also, the Approbation to the Declaration of Independence might help explain my heritage as Patroon. And I am not saying that I am special. - Just that by having the genome I seem to have become aware of this earlier than some of the people around me.


    Attached Images Attached Images

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    Quote Originally Posted by David Merrill View Post
    This should shed some light - the US Government is like a church; as in 501(C)(3) as the tax-exempt status is simply that one pays taxes to the government, in the name of the denomination, usually Christianity (Paul's dual citizenship with Rome). This is why tithing to the government through Paul's Roman church (read Pragmatism) can be deducted from income taxes.
    You mean, the United States, Washington, D.C. District of Columbia Act of 1871 is a builder's society, a fraternal society (church), an 'incorporated society' or a homeowner's association for those who want to live under the law of the sea (on the Potomac) and in that think, flaky, territorial 'alternate reality' outside of the several states of America?
    Last edited by allodial; 10-10-15 at 08:57 PM.
    All rights reserved. Without prejudice. No liability assumed. No value assured.

    "The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
    "It is the glory of God to conceal a thing: but the honour of kings is to search out a matter." Proverbs 25:2
    Prove all things; hold fast that which is good. Thess. 5:21.

  8. #8
    Quote Originally Posted by allodial View Post
    You mean, the United States, Washington, D.C. District of Columbia Act of 1871 is a builder's society, a fraternal society (church), an 'incorporated society' or a homeowner's association for those who want to live under the law of the sea (on the Potomac) and in that think, flaky, territorial 'alternate reality' outside of the several states of America?


    Something like that...



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    The proceedings went from St. John's Lodge to St. Paul's Cathedral. This definitely smacks of religion in formation. You might find some interesting tidbits in the 1871 municipal actions.

    Better than a zip file - Municipal Act of 1871 in .pdf.
    Last edited by David Merrill; 10-10-15 at 10:02 PM.

  9. #9
    So Paul has two identities - Roman/Benjamite Jew subject to the government and owing God; and Paul the Son of God with Jesus co-creating... Life or Debt, choose?
    Because Paul confessed to being a Roman citizen and was a Judean, Israelite (house of Benjamin--sons of the right hand) member of the Christ's lawful assembly? Makes sense.

    Quote Originally Posted by David Merrill View Post
    The proceedings went from St. John's Lodge to St. Paul's Cathedral. This definitely smacks of religion in formation.
    Likely something to do with Scottish Rite Freemasonry ala Albert Pike whose writings reveal him to have been a Roman Catholic yielded to the Bishop of Rome. In order for that kind of liege to cross the sea, Admiralty is required thus the formed their HOA in a city "on the Potomac".

    Quote Originally Posted by David Merrill View Post
    State's interest is $0, in fact No land is associated with this parcel. That is interesting because in I Chronicles chapter 6 we find that the Levite priests have no territorial claim. Their claim is METRO organization; or the cities and their suburbs. ... So let's go one more parcel north showing this parcel is surrounded on three sides by San Isabel National Forest. ... And so let's view the state's interest in the national forest land too: ... And so there you have it. No land is associated with the National Forest.....
    No land, because they are on {in rather than upon} the Potomac...in admiralty...underwater cities?

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    Have we finally found New Atlantis?
    Last edited by David Merrill; 10-23-15 at 07:15 PM.
    All rights reserved. Without prejudice. No liability assumed. No value assured.

    "The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
    "It is the glory of God to conceal a thing: but the honour of kings is to search out a matter." Proverbs 25:2
    Prove all things; hold fast that which is good. Thess. 5:21.

  10. #10
    Nice Find; whatever it is... Atlantis? Might that be COLUMBIAN CODE?


    I organized the pages into a .pdf - Municipal Code of 1871. You deserve it. You have really shared some amazing insight around here over the years!

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