Less Than Equal
As independent nation-states, the sovereign people of the original pre-Constitutional States took national title and dominion to the rivers, seas and lands within their territorial limits, which had been previously held by the Crown of England.
"The laws of nature and nations establish the following propositions, pertinent to this question: 1. Every nation is the proprietor [owner] as well of the rivers and seas as of the lands within its territorial limits. Vattel 120, 266...." (Referenced in Martin v. Waddell's Lessee, 41 U.S. 367 (1842)
As cited by Justice McKinley in Pollard v. Hagan, 44 U.S. 212 (1845), the power of the sovereign to dispose of the all the wealth of the nation is called the power of "eminent domain:"
"The right which belongs to the society, or to the sovereign, of disposing, in case of necessity, and for the public safety, of all the wealth contained in the state, is called the eminent domain. It is evidence that this right is, in certain cases, necessary to him who governs, and is, consequently, a part of the empire, or sovereign power. Vat. Law of Nations, section 244.
The power of eminent domain "appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty..." (Ref: Mississippi & Rum River Boom Co. V. Patterson, 98 U.S. 403 (1878); see also - Kohl v. U.S., 91 U.S. 367 (1875); City of Cincinnati v. Louisville & N.R. Co., 223 U.S. 390 (1912.)
One aspect of the power of eminent domain is the right of the sovereign to alienate or dispose of its wealth, including unappropriated lands. In addition to disposal of such property through private grants and corporate franchises, a nation may cede sovereign territorial title, dominion and jurisdiction to another. (This is generally done pursuant to a treaty between nations.) Accordingly, the original nation-States with "western wastelands" east of the Mississippi deeded a large portion of their unappropriated lands to the "United States in Congress Assembled"; later, the national United States.
In large part, the lands of the "Western States," (west of the Mississippi,) were acquired as national domain by the sovereign people of the United States through treaties of cession from various European governments. At first categorized as public domain, the lands were then surveyed and made available for disposal into private hands under various federal disposal laws as "public lands."* Some of this occurred while the West was in a territorial State. Upon statehood, instead of being complete as to powers of eminent domain equal to the original States, the new States were shorn of the power to dispose of unappropriated lands within their borders. These large land holdings remained in the control of the federal government by virtue of Enabling Acts dictating to the States "terms and conditions" of Admission to the Union.
[* "The words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws." Newhall v. Sanger, 92 U.S. 761; See also Leavenworth, etc., R. Co. v. U. S., Id. 733; Doolan v. Carr, 125 U.S. 618, 8 Sup. Ct. 1228.]
Congress has continued to claim legislative power over these Western "public lands" by virtue of the same power by which it had governed the lands while in a territorial state of exclusive legislative jurisdiction - the "Property Clause" of the Constitution:
"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." U.S. Const., Art. IV, 3, cl. 2.
Absent an Art. 1, Sec. 8, Clause 17 cession, the Court initially upheld the sovereignty of the State in the primacy of its "police powers" throughout its territorial boundaries. As stated by Justice Brewer in State of Kan. v. State of Colo., 206 U.S. 46 (1907):
"...As to those lands within the limits of the states, at least of the Western states, the national government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclamation. While arid lands are to be found mainly, if not only, in the Western and newer states, yet the powers of the national government within the limits of those states are the same (no greater and no less) than those within the limits of the original thirteen; and it would be strange if, in the absence of a definite grant of power, the national government could enter the territory of the states along the Atlantic and legislate in respect to improving, by irrigation or otherwise, the lands within their borders....."
..."It is enough for the purposes of this case that each state has full jurisdiction over the lands within its borders, including the beds of streams and other waters...
However, later Courts in applying the "Supremacy Clause" to Congressional legislation applicable to federally managed lands, have largely displaced the State's police powers in regards to these substantial in-State holdings. Stated Justice O'Connor in California Coastal Comm'n. v. Granite Rock Co., 480 U.S. 572 (1987):
"...This Court has 'repeatedly observed' that '[t]he power over the public land thus entrusted to Congress is without limitations.' Kleppe v. New Mexico, 426 U.S. 529, 539 (1976), quoting United States v. San Francisco, 310 U.S. 16, 29 (1940). Granite Rock suggests that the Property Clause not only invests unlimited power in Congress over the use of federally owned lands, but also exempts federal lands from state regulation whether or not those regulations conflict with federal law. In Kleppe, 426 U.S., at 543, we considered 'totally unfounded' the assertion that the Secretary of the Interior had even proposed such an interpretation of the Property Clause. We made clear that 'the State is free to enforce its criminal and civil laws' on federal land so long as those laws do not conflict with federal law. Ibid. The Property Clause itself does not automatically conflict with all state regulation of federal land. Rather, as we explained in Kleppe: 'Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause." Ibid. (citations omitted)
In the late nineteenth and early twentieth century, the federal government began to assume prerogatives of the Crown in "foresting" lands - withdrawing them from disposal as National Parks, Monuments, Forest Reserves and Wildlife Refuges and governing them under administrative law. Lands not withdrawn were initially held under laws such as the 1934 Taylor Grazing Act pending "final disposal," (48 Stat 1269, codified at 43 U.S.C. 315 et seq.) Finally in 1976 under FLPMA (Federal Land Policy and Management Act, 90 Stat. 2743, codified at 43 U.S.C. 1701,) it was announced that; "The Congress declares that it is the policy of the United States that the public lands be retained in federal ownership."
The massive scope of federally managed lands throughout the West has, in effect, created States with less than an equal footing with both the original States and the other Eastern States. Within the States created from the western wasteland cessions, all original "public lands" have been disposed of and the "rights of sovereignty, jurisdiction, and eminent domain" rendered complete.
Pollard v. Hagan: "Whenever the United States shall have fully executed these trusts, the municipal sovereignty of the new states will be complete, throughout their respective borders, and they, and the original states, will be upon an equal footing, in all respects whatever.")
While in the Western States, large portions of communities continue to be governed as the common domain of people of the United States, by laws in the nature of the "police powers," (as respects land and resource use,) made by representatives of all 50 States. In many local areas and in several States, the federal government continues to claim ownership of more than 50% of the land and resource base. (Please see Section 5, "Public Lands" for additional information.)
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