Friday, June 24, 2016

Who indeed owns public domain lands?

Dean Kennedy [“Who really owns ‘public domain’ lands?”  GT,  February 8, 2016] makes some very inaccurate statements about the admission of Oregon to statehood in 1859.

He claims that the “Western states were admitted into the Union as Independent Republics.”   But none of the states is an “independent republic.”   The Supremacy Clause of the U.S. Constitution (Article VI) provides:  “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in  every state shall be bound thereby,  any thing in the constitution or laws of any state to the contrary notwithstanding.”   That hardly sounds compatible with any claim that the states are independent republics!  There is also the precedent set by the Civil War. 

Kennedy asks when the Oregon state legislature ceded “what are now the federal forest and BLM lands,  the ‘public domain,’  to the United States federal government?”  The question puts the issue exactly backwards since title to limited portions of the land in Oregon was ceded by the federal government to the state at the time we were admitted to the union.  The Act of Congress on February 14, 1859 granted ownership to Oregon of selected parcels of land to be used for state government buildings, schools, and other specific purposes,  contingent on the state agreeing “by an ordinance, irrevocable without the consent of the United States, that said State shall never interfere with the primary disposal of the soil within the same by the United States . . . .”. 

In other words,  land not specifically  ceded by the federal government to Oregon remained owned by the federal government.

Oregon, in turn,  on June 3, 1859, enacted the following language: 

“Be it ordained by the Legislative Assembly of the State of Oregon, That the said State shall never interfere with the primary disposal of the soil within the same by the United States, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers thereof; and that in no case shall non-resident proprietors be taxed higher than residents. And that the said State shall never tax the lands or property of the United States within said State.” [1859]

Thus as the law stands today,  the “public domain” lands in Oregon that have not been ceded to Oregon are owned by the federal government. 

I am not arguing that this is an ideal arrangement, though.  My own analysis indicates that no government (state or federal or tribal) should be regarded as a landowner, and that all land and other natural resources not produced by human labor should be considered owned by the public (defined as every man, woman, and child subject to that government’s jurisdiction).  The benefits of exploitation of such land would be captured by government-as-trustee for the public and distributed in an equal social dividend to all members of the public.  See the Alaska oil-based dividend for how this could work on a larger scale. 

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