jryoung
Well-known member
I'll just leave this here. Interesting to see the SCOTUS cases cited, I haven't dug into them yet, but my guess is that they are dissenting opinions or out of context? I'm always looking for supporting or conflicting case law on this in the event I run into the argument in the future.
Feel free to discuss.
https://www.alec.org/model-policy/disposal-and-taxation-of-public-lands-act/
DISPOSAL AND TAXATION OF PUBLIC LANDS ACT
Disposal and Taxation of Public Lands Act
WHEREAS, in 1780, the United States Congress resolved that “the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be granted and disposed of for the common benefit of all the United States that shall be members of the federal union, and be settled and formed into distinct republican states, which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: . . . and that upon such cession being made by any State and approved and accepted by Congress, the United States shall guaranty the remaining territory of the said States respectively. . . . That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them”; and
WHEREAS, under these express terms of trust, the land claiming states, over time, ceded their western land to their confederated Union and retained their claims that the confederated government dispose of such lands to create new states “and for no other use or purpose whatsoever” and use the proceeds of any sales of such lands only for the purpose of paying down the public debt; and
WHEREAS, the United States Supreme Court, in State of Texas v. White, 74 U.S. 700, 1868, defined “State”, in the constitutional context, as “a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed”, and added, “This is undoubtedly the fundamental idea upon which the republican institutions of our country are established”; and
WHEREAS, by resolution in 1790, the United States Congress declared “That the proceeds of sales which shall be made of lands in the Western territory, now belonging or that may hereafter belong to the United States, shall be, and are hereby appropriated towards sinking or discharging the debts for the payment whereof the United States now are, or by virtue of this act may be holden, and shall be applied solely to that use, until the said debt shall be fully satisfied”; and
WHEREAS, in 1833, referring to these land cession compacts which arose from the original 1780 congressional resolution, President Andrew Jackson stated, “These solemn compacts, invited by Congress in a resolution declaring the purposes to which the proceeds of these lands should be applied, originating before the constitution, and forming the basis on which it was made, bound the United States to a particular course of policy in relation to them by ties as strong as can be invented to secure the faith of nations”; and
WHEREAS, with respect to the disposition of the federal territorial lands, the Northwest Ordinance of July 13, 1787 provides, “The legislatures of those districts or new States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers”; and
WHEREAS, the United States Supreme Court, in Downes v. Bidwell, 182 U.S. 244, 1901, stated with reference to Article IV, section 3, cl. 2 of the United States Constitution, “The question of territories was dismissed with a single clause, apparently applicable only to the territories then existing, giving Congress the power to govern and dispose of them”; and
WHEREAS, the territorial and public lands of the United States are dealt with in Article IV, section 3, clause 2 of the United States Constitution, referred to as the Property Clause, which states, “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.” And
WHEREAS, with this clause, the Constitutional Convention agreed that the Constitution would maintain the “status quo” that had been established with respect to the federal territorial lands being disposed of only to create new states with the same rights of sovereignty, freedom, and independence as the original states; and
WHEREAS, in 1828, United States Supreme Court Chief Justice John Marshall, in American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 1828 confirmed that no provision in the Constitution authorized the national government to indefinitely exercise control over western public lands beyond the duty to manage these lands pending the disposal of the lands to create new states when he said, “At the time the Constitution was formed, the limits of the territory over which it was to operate were generally defined and recognised (sic). These limits consisted in part, of organized states, and in part of territories, the absolute property and dependencies of the United States. These states, this territory, and future states to be admitted into the Union, are the sole objects of the Constitution; there is no express provision whatever made in the Constitution for the acquisition or government of territories beyond those Limits;” and
WHEREAS, in Shively v. Bowlby, 152 U.S. 1, 1894, the U.S. Supreme Court confirmed that all federal territories, regardless of how acquired, are held in trust to create new states on an equal footing with the original states when it stated, “Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory;” and
WHEREAS, the Enabling Act of {insert state} states, in part, that until the title to the unappropriated public lands lying within the state’s boundaries, and to all land owned or held by any Indian or Indian tribes “shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; that no taxes shall be imposed by the State on lands or property therein belonging to or which may hereafter be purchased by the United States or reserved for its use”; and
WHEREAS, the state of [insert state] only temporarily suspended its right to tax the public lands pending the national government’s imminent discharge of its trust obligation to dispose of all of the unappropriated public lands; and
WHEREAS, the 1934 Taylor Grazing Act declared that “In order to promote the highest use of the public lands pending its final disposal, the Secretary of the Interior is authorized, in his discretion, by order to establish grazing districts or additions thereto and/or to modify the boundaries thereof, of vacant, unappropriated, and unreserved lands from any part of the public domain of the United States (exclusive of Alaska [and other territorial exclusions]) . . . Nothing in this subchapter shall be construed . . . as limiting or restricting the power or authority of any State as to matters within its jurisdiction”; and
WHEREAS, in 1976, after nearly 200 years of trust history regarding the obligation of Congress to dispose of western lands to create new states and use the proceeds to discharge its public debts, the United States Congress stated in the Federal Land Policy Management Act, “By this Act, Congress declares that it is the policy of the United States that the public lands be retained in Federal ownership, unless … it is determined that disposal of a particular parcel will serve the national interest”; and
WHEREAS, at the time of the [state’s] Enabling Act the course and practice of the United States Congress with all prior states admitted to the Union had been to fully dispose, within a reasonable time, all lands within the boundaries of such states, except for those Indian lands, or lands otherwise expressly reserved to the exclusive jurisdiction of the United States; and
WHEREAS, the state of {insert state} did not, and could not have, contemplated or bargained for the United States failing or refusing to dispose of all lands within its defined boundaries within a reasonable time such that the State of {insert state} and its [Permanent Fund] for its Public Schools could never realize the bargained-for benefit of the deployment, taxation, and economic benefit of all the lands within its defined boundaries; and
WHEREAS, in a unanimous 2009 decision, the United States Supreme Court, in Hawaii v. Office of Hawaiian Affairs, stated, “. . . [a subsequent act of Congress] would raise grave constitutional concerns if it purported to ‘cloud’ Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union. . . . ‘[T]he consequences of admission are instantaneous, and itignores the uniquely sovereign character of that event … to suggest that subsequent eventssomehow can diminish what has already been bestowed’. And that proposition applies afortiori [with even greater force] where virtually all of the State’s public lands . . . are at stake;” (emphasis added); and
WHEREAS, from 1780 forward it is unmistakable that the federal government only held bare legal title to the western public lands as a trustee in trust to dispose of them to create new states and to use the proceeds to pay the public debt; and
WHEREAS, the Federal Government did comply with its express trust obligation to imminently dispose of the public lands for all states to the eastern edge of Colorado and also with the state of Hawaii; and
WHEREAS, [state’s] Enabling Act contemplates that [state’s] temporary suspension of its sovereign right to tax the public lands within its borders for the benefit of its public schools and the common good of the state ends the very moment that the national government discharges of its trust obligation to imminently dispose of [state’s] public lands within its borders; and
WHEREAS, the national government has failed to abide by the terms of its preexisting trust obligations to imminently dispose of the public lands from the eastern edge of the state of Colorado to the west coast and the state of Alaska; and
WHEREAS, under Article I, Section 8, Clause 17 of the United States Constitution, the national government is only constitutionally authorized to exercise right, title, and jurisdiction over lands that are “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;” and
WHEREAS, the United States Congress never purchased land designated as national parks nor did it ever seek or obtain the consent of the [state] Legislature as required under Article I, Section 8, Clause 17 of the United States; and
WHEREAS, because of the failure of the national government to imminently dispose of land within the borders of [state], [state] bears the burden of the inestimable entanglements and expectations over the multiple use of these public lands that were required to be disposed of that have accumulated for more than [number of years since state’s admission] years; and
Feel free to discuss.
https://www.alec.org/model-policy/disposal-and-taxation-of-public-lands-act/
DISPOSAL AND TAXATION OF PUBLIC LANDS ACT
Disposal and Taxation of Public Lands Act
WHEREAS, in 1780, the United States Congress resolved that “the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be granted and disposed of for the common benefit of all the United States that shall be members of the federal union, and be settled and formed into distinct republican states, which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: . . . and that upon such cession being made by any State and approved and accepted by Congress, the United States shall guaranty the remaining territory of the said States respectively. . . . That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them”; and
WHEREAS, under these express terms of trust, the land claiming states, over time, ceded their western land to their confederated Union and retained their claims that the confederated government dispose of such lands to create new states “and for no other use or purpose whatsoever” and use the proceeds of any sales of such lands only for the purpose of paying down the public debt; and
WHEREAS, the United States Supreme Court, in State of Texas v. White, 74 U.S. 700, 1868, defined “State”, in the constitutional context, as “a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed”, and added, “This is undoubtedly the fundamental idea upon which the republican institutions of our country are established”; and
WHEREAS, by resolution in 1790, the United States Congress declared “That the proceeds of sales which shall be made of lands in the Western territory, now belonging or that may hereafter belong to the United States, shall be, and are hereby appropriated towards sinking or discharging the debts for the payment whereof the United States now are, or by virtue of this act may be holden, and shall be applied solely to that use, until the said debt shall be fully satisfied”; and
WHEREAS, in 1833, referring to these land cession compacts which arose from the original 1780 congressional resolution, President Andrew Jackson stated, “These solemn compacts, invited by Congress in a resolution declaring the purposes to which the proceeds of these lands should be applied, originating before the constitution, and forming the basis on which it was made, bound the United States to a particular course of policy in relation to them by ties as strong as can be invented to secure the faith of nations”; and
WHEREAS, with respect to the disposition of the federal territorial lands, the Northwest Ordinance of July 13, 1787 provides, “The legislatures of those districts or new States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers”; and
WHEREAS, the United States Supreme Court, in Downes v. Bidwell, 182 U.S. 244, 1901, stated with reference to Article IV, section 3, cl. 2 of the United States Constitution, “The question of territories was dismissed with a single clause, apparently applicable only to the territories then existing, giving Congress the power to govern and dispose of them”; and
WHEREAS, the territorial and public lands of the United States are dealt with in Article IV, section 3, clause 2 of the United States Constitution, referred to as the Property Clause, which states, “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.” And
WHEREAS, with this clause, the Constitutional Convention agreed that the Constitution would maintain the “status quo” that had been established with respect to the federal territorial lands being disposed of only to create new states with the same rights of sovereignty, freedom, and independence as the original states; and
WHEREAS, in 1828, United States Supreme Court Chief Justice John Marshall, in American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 1828 confirmed that no provision in the Constitution authorized the national government to indefinitely exercise control over western public lands beyond the duty to manage these lands pending the disposal of the lands to create new states when he said, “At the time the Constitution was formed, the limits of the territory over which it was to operate were generally defined and recognised (sic). These limits consisted in part, of organized states, and in part of territories, the absolute property and dependencies of the United States. These states, this territory, and future states to be admitted into the Union, are the sole objects of the Constitution; there is no express provision whatever made in the Constitution for the acquisition or government of territories beyond those Limits;” and
WHEREAS, in Shively v. Bowlby, 152 U.S. 1, 1894, the U.S. Supreme Court confirmed that all federal territories, regardless of how acquired, are held in trust to create new states on an equal footing with the original states when it stated, “Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory;” and
WHEREAS, the Enabling Act of {insert state} states, in part, that until the title to the unappropriated public lands lying within the state’s boundaries, and to all land owned or held by any Indian or Indian tribes “shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; that no taxes shall be imposed by the State on lands or property therein belonging to or which may hereafter be purchased by the United States or reserved for its use”; and
WHEREAS, the state of [insert state] only temporarily suspended its right to tax the public lands pending the national government’s imminent discharge of its trust obligation to dispose of all of the unappropriated public lands; and
WHEREAS, the 1934 Taylor Grazing Act declared that “In order to promote the highest use of the public lands pending its final disposal, the Secretary of the Interior is authorized, in his discretion, by order to establish grazing districts or additions thereto and/or to modify the boundaries thereof, of vacant, unappropriated, and unreserved lands from any part of the public domain of the United States (exclusive of Alaska [and other territorial exclusions]) . . . Nothing in this subchapter shall be construed . . . as limiting or restricting the power or authority of any State as to matters within its jurisdiction”; and
WHEREAS, in 1976, after nearly 200 years of trust history regarding the obligation of Congress to dispose of western lands to create new states and use the proceeds to discharge its public debts, the United States Congress stated in the Federal Land Policy Management Act, “By this Act, Congress declares that it is the policy of the United States that the public lands be retained in Federal ownership, unless … it is determined that disposal of a particular parcel will serve the national interest”; and
WHEREAS, at the time of the [state’s] Enabling Act the course and practice of the United States Congress with all prior states admitted to the Union had been to fully dispose, within a reasonable time, all lands within the boundaries of such states, except for those Indian lands, or lands otherwise expressly reserved to the exclusive jurisdiction of the United States; and
WHEREAS, the state of {insert state} did not, and could not have, contemplated or bargained for the United States failing or refusing to dispose of all lands within its defined boundaries within a reasonable time such that the State of {insert state} and its [Permanent Fund] for its Public Schools could never realize the bargained-for benefit of the deployment, taxation, and economic benefit of all the lands within its defined boundaries; and
WHEREAS, in a unanimous 2009 decision, the United States Supreme Court, in Hawaii v. Office of Hawaiian Affairs, stated, “. . . [a subsequent act of Congress] would raise grave constitutional concerns if it purported to ‘cloud’ Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union. . . . ‘[T]he consequences of admission are instantaneous, and itignores the uniquely sovereign character of that event … to suggest that subsequent eventssomehow can diminish what has already been bestowed’. And that proposition applies afortiori [with even greater force] where virtually all of the State’s public lands . . . are at stake;” (emphasis added); and
WHEREAS, from 1780 forward it is unmistakable that the federal government only held bare legal title to the western public lands as a trustee in trust to dispose of them to create new states and to use the proceeds to pay the public debt; and
WHEREAS, the Federal Government did comply with its express trust obligation to imminently dispose of the public lands for all states to the eastern edge of Colorado and also with the state of Hawaii; and
WHEREAS, [state’s] Enabling Act contemplates that [state’s] temporary suspension of its sovereign right to tax the public lands within its borders for the benefit of its public schools and the common good of the state ends the very moment that the national government discharges of its trust obligation to imminently dispose of [state’s] public lands within its borders; and
WHEREAS, the national government has failed to abide by the terms of its preexisting trust obligations to imminently dispose of the public lands from the eastern edge of the state of Colorado to the west coast and the state of Alaska; and
WHEREAS, under Article I, Section 8, Clause 17 of the United States Constitution, the national government is only constitutionally authorized to exercise right, title, and jurisdiction over lands that are “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;” and
WHEREAS, the United States Congress never purchased land designated as national parks nor did it ever seek or obtain the consent of the [state] Legislature as required under Article I, Section 8, Clause 17 of the United States; and
WHEREAS, because of the failure of the national government to imminently dispose of land within the borders of [state], [state] bears the burden of the inestimable entanglements and expectations over the multiple use of these public lands that were required to be disposed of that have accumulated for more than [number of years since state’s admission] years; and