Western
Lands Issues 101
By Dr. Angus McIntosh January 2, 2017
Executive Director RAO
Western Lands Issues 101
Art 1 Sec
8 cls 17 US Const. (the "Enclave Clause") allows Congress "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; " Read carefully this section is about
"exclusive Legislation" and "Authority". Or, what the
Courts have called Police Power Jurisdiction. It also allows the US to exercise
authority over places purchased with the consent of the State legislature. Art
4 Sec 3 cls 2 (the "Property Clause") says "Congress shall have
the power to dispose of and make all needful rules and regulations respecting
the Territory and other property belonging to the United States". Thus the
US can own land and interests in land within the boundaries of a State yet have
NO civil or criminal jurisdiction whatsoever (unless granted by the state
legislature for specific military or federal purposes). Also, under the
"Property Clause” the primary duty of Congress was to "dispose
of" the public lands of the Territory. No later State was allowed to enter
the union until it gave up its claims to the "unoccupied" public
lands. This allowed Congress to continue disposing of the public land without
interference from the State. Congress followed an unwavering policy of
disposing of the land to the actual persons in possession and occupancy of the
land. This was done first on Indian Reservations under the General Allotment
Act of 1887, then under the Forest Reserve Act 1891/1897 and the StockRaising
Homestead Act/Taylor Grazing Acts 1916/1934. Also, acquired land within
"resettlement projects" (national grasslands) was also disposed of
under the Bankhead Jones And Farmers Home Administration Acts of 1937/1946.
These were all split-estate disposal laws that disposed of a surface "fee
title" in the allotment to the rancher while retaining the minerals and
commercial timber for separate disposal. Thus when a National Monument is
proclaimed but contains language protecting "valid existing rights"
all "Grazing Allotments" are legally unaffected. See Watt v Western
Nuclear 1983, Kinney Coastal Oil v Kieffer 1928, US v New Mexico 1978.
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