What Rights to Land Has the Federal Government?

Where in the Constitution is the authority for the federal government to own the land within the states?  The grant of authority by the states to Congress and the central government is in Article I, Section 8.  Owning and managing lands within the several states is not there.

The men who drafted the Constitution wanted the federal government to have limited power.  If a power wasn’t expressly granted, it was denied.  And who can argue that it is necessary or proper for the federal government to own today 623 million acres, or 27.4%, of this country?

Jefferson was a strict constructionist, and he knew very well that the Louisiana Purchase was not authorized by the Constitution.  But he did it anyway, and was never challenged.  No American at the time opposed this doubling of our territory.  But that didn’t make it constitutional.

The first 30 states of the Union had no federal land to speak of within their borders at the time of their admission.  But when California was admitted in 1850 it was barely ready for statehood, and there was so much land, and so many Mexican-American land claims to settle, that title to vast portions of the state were retained by Washington.

Oregon was underpopulated when it was admitted in 1859, as were most of the far western states that followed.  So the federal government retained title to vast regions of the west, which it owns to this day.  The question, at this point, is why?

To protect the land from the people who live, work, and play there?  The people of Idaho care a lot more about their beautiful environment than you or I do.  It’s where they live, and where they want their families to live.  The day of the robber timber baron is over.

So the real question is, why doesn’t the federal government surrender the western lands it doesn’t need?  That’s a question for Congress, but Congress is dysfunctional.  But there’s a higher power than Congress, the concerted power of the states, as set forth in Article V.

This should be the subject of the next Convention of States.  If the Phoenix Convention is as successful as expected, Commissioners will ask “Why don’t we do this again?”  That question will be answered when a state legislature calls the next Convention.

The state issuing the call need not host the Convention.  The Annapolis and Philadelphia Conventions were called by Virginia.  The St. Louis Convention of 1889 was called by Kansas.

Who will heed the call?  It can’t be partisan, or it won’t work.  The state issuing the call should be, at least partially, under the control of a different party than the host state.  To get the Democratic states to come it can’t just be about the rights of the states to their land.  It has to be about the rights of the people in those states, in particular the Alaska Natives.

50 years ago a young Alaska Native from a remote arctic village asked, what rights to land have the Alaska Natives?  It’s time to turn that question around.


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