Saturday, August 16, 2014

A second look at one of this season's bad political ideas. "Taking back" the Federal land

Recently I posted here an item noting Tom Lubnau's op ed in the Tribune on the bad idea of "taking back" the Federal lands.  Let's take a little closer look at it, as it reveals how little this is actually thought out.

 Mixed private and public land in Natrona County, Wyoming.

Now, this idea is currently popular with that section of the GOP that's in the "tea party" end of things locally, but that doesn't make it unique to them. A couple of decades ago it was circulated in the "Sagebrush Rebellion", so it's a species of perennial bad idea, now matter what a person's political stripes may be.

Okay, let's start with the basic premise.

!.  We're going to "take them back".

Well, you can't take back, what you didn't own.  That'd be something like theft, and the state never owned the lands.

This part of this debate, to the extent that there is one, is one of those odd deals that gets tied up in myth.  A lot of people in the "take back" end of this have a zealous belief that there was a duty on the part of the Federal government to give the land to a new state. There never was such a duty, the fact of the matter is that the Federal government never gave any new states all of the land within a state upon becoming a state.  The Federal government always "reserved" some  of the land for itself, depending upon what it through it needed for its own purposes.  The reason that most of the land was conveyed to the states prior to the Civil War was that most Americans were farmers and it was a good way for the states to encourage farming.  During the Civil War the Federal government, however, entered that scene itself, as in the arid Western regions the inducement of cheap land was no longer significant enough to draw homesteaders in, hence the "Homestead Act", which provided direct inducements to emigration.

If you really want to look at the legal theory of it, as opposed to the mythical version that some letter writer in the Tribune has today, this is it.

The Federal Government adopted the Crown's view that all land in North American belonged to the native inhabitants under what was called "Aboriginal Title".  Tribes were, and still are, regarded as sovereigns. As they were a sovereign of superior nature to a state, whose sovereignty devolved from the greater sovereigns, only the greater sovereign, the United States, could legally deal with an Indian Tribe.  And therefore only Congress cold extinguish ore acquire Aboriginal Title, by Congressional fiat, war, treaty or purchase. The U.S. Supreme Court, in fact, struck down the State of Georgia's attempt to acquire Indian lands by treaty directly.  Only true sovereigns may deal with one another.

Therefore, once that was done, the United States acquired title to the land.  Not the states. Anything a state acquired was a grant from the soverign, and the sovereign had no duty to convey land to any state.

So, sorry "take backers", the Federal government has absolutely no legal duty to give Wyoming any lands, and an acquisition of Federal lands wouldn't be taking it back, it be acquiring something new entirely.

2.  So purchase then?

In fairness, nobody proposes this, but it's really remarkable and revealing that we don't.

So what the proposal is, is that we buy them, right?  After all, the same segments of the political demographic demanding that we "take them back" claims to be in favor of a "free market economy" (it isn't, but it claims that).

So, what we'd do is buy 47% of the State at the fair market value?  Um. . . well . . . no. We wan the Federal government to give the land to us.

Give?  What?  What are we, a bunch of freeloaders?

Well, in fact, yes we would be.  Wyoming already takes in more in Federal tax dollars than it pays out. And this would be the biggest freeloading proposal of them all.  Wyoming, with its handout, would be demanding a gift.  Pretty unseemly.

Moreover, if a person is really true to their freemarket convictions, why wouldn't they just propose, as horrible of idea as it is, that the public domain just be sold tot he highest bidder?  Wyoming could bid, then, on the lands it wanted, right?

Well, of course, it couldn't afford to buy anything, and the 47% of the land now owned by the Federal government would pass out of public hands into remote hands for the most part, a true disaster for the state.  But at least it would be an intellectually honest disaster.

3.  Our right?

Now, wait a minute, you may be thinking, we're just asking for what the Federal government gave the other states, darn it.  It's our right.  I've heard at least a couple of shades of this line of thought.

Well, not so fast.  It isn't true that the other states all got their Federal lands.  Nevada didn't. Arizona didn't.  Montana didn't. Colorado didn't. Alaska didn't.  Idaho didn't. New Mexico, Utah, Arizona, and so on. . well you get the point. The western states, save for those that came in early like California, did not.

Even the Eastern states really didn't.  There are a lot of "Federal Reservations" in the east, where the government kept what it thought it needed.  The only real exceptions to this story are Texas and Hawaii, which were sovereign nations that asked, in their sovereignty, to become states. But there's a lesson here (we'll look at below) of bitter unhappiness that should forewarn of not wanting to go this route anyhow.

4.  The Feds just got greedy, right?

Well, that's just because the Feds were a punch of party poopers after the Civil War, right?

This has been addressed a bit above, but no, it's because the Federal domain was open to every citizen for homesteading, and the the states were just peachy with that.  This had come about as the old system, with states selling off the public land, wasn't working for the arid West.

Beyond that, by the 1860s it was clear that the onset of the industrial revolution meant that the country needed to do something to encourage mining on the vast public tracts that were not attracting development, and that resulted in the Mining Law of 1872, which give the mineral industry, one of Wyoming's most favored industries in terms of public sympathy, the right to enter in and occupy lands in a manner that was superior to any other claim.  As I don't want this to turn into a treatise on the public lands, I'll stop there, but this is what established the system we basically have today.  And this was a system the state were perfectly fine with, and in Wyoming's case a private war was actually fought in the 1890s in an effort to preserve it.

Beyond that, in Wyoming's case, it's because we had such a small population we had to bribe the Federal government for statehood. We doubleed our voters by granting women the right to vote, and then we promised the Federal government we wouldn't ask for anything, small poulation state that we were. We even put it in our state constitution.


5.  Our own self interest

Well, 1890 was a long time ago, and this would be in the best interest of the state today, right?  Let's ingore the history and grab what we can, and we'll all be better off.

Not hardly.

First of all, something Wyomingites fail to appreciate is that the Federal government actually manages the land much more lightly than the State.  A Wyomingite can pretty much go where he wants and do what he wants on the public lands, in spite of the oil wells, cattle and sheep.

Not so on State land. State land is specific for its leased use, and you really have fewer rights on the State land.  People simply ignore that, as they're unaware of that.  If the state acquired the land, the state would either have to take up ignoring that, or would make people mighty unhappy.

Assuming the state kept the land, which is a doubtful presumption.  The State of Wyoming already has a history of disposing of the land it has, often for values which seem doubtful at least from the outside.  With more land to dispose of, there's no reason to believe that market pressures, and the cost of now having to manage the land itself, wouldn't cause it to sell a lot of it off, maybe darned near all of it off.

And the primary beneficiaries of that would be out of state wealthy interests.  Some imagine a mythical world of renewed small homesteading. Well, that's not going to happen.  Millionaires from St. Louis would be more likely to acquire the land than the existent tenants or average Wyomingites.

And some imagine that if the Federal government could be cajoled, coaxed or sued into giving us the lands, it would be a boon to those sectors of the mineral industry that aren't doing as well as they once were, like the coal industry. Well, guess again. Inside the industry the Federal government isn't regarded as a particularly harsh landlord and frankly its easier to get along with than private landowners generally are.  Indeed, if the State sold the land industry would likely have to compete, in some instances, with environmental groups that would claim an equal right to bid on the land, something they've done before with oil and gas leases, if they could.

The net result, moreover, would be to make us a Western state like Texas, or Hawaii, where the native inhabitants look out on a state that they live in, but largely cannot access.  Texans might like to point towards their Western cowboy heritage, but there aren't many of them living it.  How could they? They have no right to go on the soil of most of Texas, most of which is privately held.  In Hawaii feelings are so bitter in some sectors that there's a nativist independence movement which would take the state and its lands back for the original inhabitants.

We should be thankful that the Federal domain is Federal.

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