It is. But an ultimatum is often necessary when one party refuses to recognize the constitutional rights of another.
And that’s why Utah Gov. Gary Herbert recently signed into law legislation challenging the federal government’s authority to occupy state lands. Utah’s HB 148, the Transfer of Public Lands Act, sets a hard deadline — Dec. 31, 2014 — for federal authorities to relinquish control of federally occupied lands to that state.
Standing by when Gov. Herbert signed the bill into law were important members of his state’s congressional delegation, including U.S. Sens. Orrin Hatch and Mike Lee. Their presence indicated that Congress will soon be forced to address an issue of paramount importance to our federalist system of government that has, for too long, simply been swept under the rug and ignored: the Equal Footing doctrine.
Utah’s latest move actually piggybacks onto a series of moves made by Nevada lawmakers over the past several decades that asserted the Silver State’s right to be accepted into the Union on an equal basis with the original states. The congressional enabling act that authorized statehood for Nevada, after all, proclaimed that Nevada “shall be admitted into the Union upon an equal footing with the original states, in all respects whatsoever.”
It then went on, however, to stipulate conditions for Nevada’s acceptance into the Union to which the original states were never subjected. Key among those conditions was the requirement that Nevadans “disclaim all right and title to the unappropriated [as of 1864] public lands lying within [the state’s borders].”
In 1979, Nevada lawmakers passed into law the original “Sagebrush Rebellion” statute. It challenged the federal government’s authority to occupy most of the land within the state’s borders, based upon the argument that the occupation violates the state’s Equal Footing rights.
Legislators asserted that “the attempted imposition upon the State of Nevada by the Congress of the United States of a requirement in the enabling act that Nevada ‘disclaim all right and title to the unappropriated public lands lying within said territory,’ as a condition precedent to acceptance of Nevada into the Union, was an act beyond the power of the Congress of the United States and is thus void.”
Indeed, federal case law supports the original claims of Nevada lawmakers. One notable U.S. Supreme Court opinion that was explicitly cited by lawmakers at the time, Pollard v. Hagan, says, “…the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama or any of the new states were formed; except for temporary purposes.” As soon as new states were formed, said the high court, “the power of the United States over these lands as property was to cease.”
In the mid-1990s, Nevadans took another step toward freeing our state of federal land dominion by acting to repeal the disclaimer of interest in public lands from the state’s constitution. Nevada lawmakers voted unanimously in 1993 and 1995 to strike that provision from the state’s constitution and the motion received overwhelming popular support on a 1996 ballot question.
As a result, the disclaimer of interest no longer appears in the current version of Nevada’s constitution. But a curious footnote remains, indicating that, because the provision was required by the state’s congressional enabling act, repeal cannot become effective without congressional consent or until “a legal determination is made that such consent is not necessary.”
Not surprisingly, Congress has failed to act in the 15 years since Nevadans approved the constitutional amendment.
Now that our neighbors to the east have raised the bar, Utah’s ultimatum can go before the U.S. Supreme Court, which has original jurisdiction over all cases between a state and the federal government, under Article III, Sec. 2, Para. 2 of the U.S. Constitution.
Other Western states are now considering similar legislation.
Given its history and its economic interest, Nevada should be next to rejoin the fight.