Are Federal Land Acquisition Procedures Constitutional?

By Jim Tenney 
October 30, 2001



FEDERAL ACQUISITION OF LAND WITHIN STATES
 
Does the federal government’s purchase of lands within the boundary of a state require the consent of the state legislature? If we are in a sovereign state, the answer is absolutely, yes! As a Constitutional Republic, if our elected representatives are not accountable and do not uphold our state sovereignty and individual liberties, then we are lost. 

Although the Enclave Clause of the U.S. Constitution, Article I, section 8, clause 17 authorizes Congress to purchase, own and control land within the boundary of a state, it is very specific and limiting as to what type of lands the federal government can own and control within a given state. It also leaves no doubt that the state legislature has to relinquish control of those lands. The relevant portion of the Enclave clause reads: 

Congress may exercise exclusive legislative "authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;"



Can any agency of the federal government come into a state and purchase land without state authorization as any other buyer would? Is it a private property right for a property owner to sell to the federal government? A proper reading of the Enclave Clause shows the answer to both of these questions is, NO.

Had the founding fathers intended the federal government to have this authority they would never have included the Enclave provision in the Constitution. Had the people believed the constitution would allow the federal government to acquire any land it desired and displace the states authority they would never have allowed their state to ratify the Constitution. Clearly, issues other than private property rights must have been at stake, and those issues must have been of sufficient gravity to compel the founders to include this clause and for the people to accept it.

There are many examples in which the Supreme Court has upheld the state’s position to determine who can own and control land within the boundary of a state. An example of this is in a case where a citizen of the State of California willed property to the Federal government. The State, by act of the legislature, denied the transfer of title to the federal government. The United States sued California to force the state to relinquish control of the land the federal government considered theirs. The Supreme Court Ruled in favor of the state’s position disallowing the federal government to claim ownership of the willed property.

A portion of the statement in the court’s decision may help us to understand; "California’s decision (by act of the legislature) to permit itself and its subordinate municipalities to be unlimited governmental beneficiaries under the wills of its domiciliaries is based on a permissible distinction," In another passage, the Court elaborated on its view: "The United States would have no claim here were it not for wills probated under California law. The Fox (United States v. Fox, 94 U.S. 315) case is only one of a long line of cases which have consistently held that part of the residue of sovereignty retained by the states, a residue insured by the Tenth Amendment, is the power to determine the manner of testamentary transfer of a domiciliary’s property and the power to determine who may be made beneficiaries. It would be anomalous to hold that, because of an amorphous doctrine of national sovereignty, federal constitutional law reached into a California statute and made impotent that state’s restrictions on the designation of beneficiaries."

The idea that states hold the power to determine the manner and context of transfers of property is the foundation of statehood. This Statement by Thomas Jefferson is another example of our founders reasoning on this matter: "Can it be thought that the Constitution be intended that for a shade or two of convenience, more or less, Congress should be authorized to break down the most ancient and fundamental laws of the several states; such as those against Mortmain, the laws of Alienage, the rules of descent, the acts of distribution, the laws of escheat and forfeiture, the laws of monopoly? Nothing but a necessity invincible by any other means, can justify such a prostitution of laws, which constitute the pillars of our whole system of jurisprudence."

How have we gotten to the point where many will argue that to interfere with federal land acquisition is unconstitutional? Where did the idea come from that there is a right for individuals and other entities to sell to the federal government without requiring the consent of the state legislature? Part of the answer to this misconception lay in two Supreme Court decisions. These two activist court decisions known as, Kohl and Ft. Leavenworth, did expand federal authority beyond a strict reading of the Enclave Clause. In these two cases the justices "discovered" a Federal right of eminent domain that was neither specifically nor implicitly granted by the people in the Constitution. There is no doubt an expansion of authority was granted by the Court. This was an act of sheer judicial arrogance by men in high places. 

Although these decisions do expand federal authority, they have been misread to the point of giving the federal government complete authority to acquire lands within the boundary of states without that state’s Consent. This is a complete misreading of the text of these decisions. A close reading of these cases show the right of eminent domain granted in the decisions was only for purposes "essential" to the Federal government’s "independent existence and perpetuity." or "for the special purposes named" These "essential purposes" are the constitutionally enumerated purposes in Article I, section 8, clause 17 of the constitution. This close reading of the cases show the court definitely did not rule to allow the federal government uncontrolled authority to purchase lands within a states. Eminent domain is a sovereign power. Therefore, it can only be exercised when government is acting within its sovereign power as enumerated under the constitution. Any other federal purchases must still be authorized by the state legislature. 

"It cannot be presumed that any clause in the Constitution is intended to be without effect." Thomas Jefferson spoke to the consequence of Federal usurpation of state’s constitutional rights: "To take from the states all the powers of self government, without regard to the special delegations and reservations solemnly agreed to in the federal compact is not for the peace, happiness, or prosperity of those states."

Now let’s examine a couple of relevant questions. Why are federal agencies able to purchase lands within states without the legislature’s approval? Why should the State assert itself with respect to purchases of land within its borders? 



1. When a State offers no comment with respect to a particular purchase, it is assumed by the court that the state consented to the purchase. In other words, it is necessary for our elected representatives to be proactive and challenge the purchase or they give up the state’s sovereignty. 

2. All lands purchased by the Federal government, for whatever reason, are considered to be "public lands." [Ref. Federal Land Policy and Management Act, Sec. 103(e)] The U.S. Supreme Court has ruled in Kleppe v. New Mexico, 426 U.S. 529, (1976) that Congress exercises "complete" jurisdiction over public lands. Thus, every acre purchased by the Federal government is an acre removed from sovereign state legislative jurisdiction. 

3. With state jurisdiction stripped from federally purchased land, they no longer fall under state or local legislative jurisdiction or regulation and we, the people, loose the ability to hold our locally elected representatives accountable. Also, local economic conditions don’t have any bearing on the development or production as dictated by a free market. 

4. With state jurisdiction stripped from federally purchased property, the Federal government may exercise police power on these lands as well as adjacent land, "notwithstanding such action may involve an entry upon the lands of a private individual," Camfield v. U.S., 167 U.S. 518 (1897). A person selling his property to the Federal government exposes his neighbors to the police power of the United States thus expanding the already vast reach of Federal police power within the State. While this is a matter of sufficient concern in itself, it must also be noted that this police power is not susceptible to local political control. Therefore, the peoples right to republican governance, as is guaranteed under Article IV, section 4 of the U.S. Constitution, is further diminished by each Federal purchase of private or State owned land.

5. The state may not acquire Federal land other than by consent of Congress as set forth in Federal law. Congress will not sell land unless it is determined that such sale is in the Federal government’s best interest. The State should take equal or greater responsibility when its sovereign jurisdiction, rights of self-determination and economic well being come under attack by uncontested Federal government land purchases. Failure of the state to be thus concerned is to diminish the value and dignity of statehood. If the state does not value its own rights of self- governance and self-determination, why should the courts or the Federal government? The answer to this question is that neither the courts nor the Federal government will, as has been amply demonstrated.

6. A large percentage (40% to 80%)of western states and an increasing percentage of the other states (totaling just under 50% of the land mass of the United States) is owned or governed by the Federal government. This makes all mineral, energy and renewable commodities on these and in some cases, neighboring lands available for economic purposes only in the interest and priorities of the national government. The economic needs of the individual states, for economic stability, taxing authority, management and control of public services such as police and education, are virtually irrelevant considerations within the scope of this national agenda. 

7. Congress intends that this condition will be forever: "The 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," Federal Land Policy and Management Act, Sec. 102(a)(1). Every acre purchased by the Federal government adds to this already vast impediment to the State being the sovereign master of its own destiny. This also raises the question of equal footing. If the Federal Government owns or controls 60 to 80 percent of the land within the boundary of a state, that state cannot be considered to be on equal footing with the original states.

The Federal government is consistent in its efforts to diminish the role of states. Again we quote the words of Thomas Jefferson: "The natural process of things is for liberty to yield and government to gain ground." Of late, however, the Supreme Court has, by a margin of 5 to 4, affirmed some state’s rights in certain significant cases. For example; Printz v. United States, June 27, 1997, affirmed that state officers are beyond Federal control, and Florida Prepaid Postsecondary v. College Savings Bank, June 23, 1999, affirmed that Federal law could not abrogate state sovereign immunity from private suit. Had these two cases not been undertaken, state officers, including legislators, would be increasingly subject to Federal dictation thus further rendering states mere administrative units of the Federal government. 

This persistent and pervasive threat to state sovereignty is not a matter to be taken lightly. The Founders divided power and enumerated only certain powers to the Federal government understanding it was the only way to maintain individual liberty. To the extent that the Federal government consumes or otherwise diminishes that independent sovereignty of a state there is an equal loss of individuals liberty. This is reflected in another statement by Thomas Jefferson: "When all government is centered in Washington, this government will become as evil and oppressive as the government from which we have just separated.

The Founders did not intend that the Federal government would ultimately consume the states; either with respect to their governmental independence or with respect to their physical existence.

From the Records of the Federal Convention, James Madison, Sept. 5, 1787 we find another very telling explanation of the reasoning for the enclave clause to be worded the way it is: "Mr. Gerry contended that (the power of the Federal government to purchase lands within states) might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the Genl. Government...thus after the word ‘purchased’ the words ‘by the consent of the Legislature of the State’" was added to the Enclave Clause. Reading this explanation should leave no doubt the founders feared uncontrolled Federal purchases of private land within states. The right to territorial self-defense was intentional and without opposition and is the reason for the "consent" provision of the Enclave Clause. The physical existence of states is not to depend upon trusting the intentions of the Federal government.

An example of the federal governments intention of ever increasing control over individual states is the current house bill, H.R. 701, the Conservation And Reinvestment Act, or CARA. This bill, if passed in its present form, will produce three billion dollars per year for fifteen years and most of this money will be used for land acquisition. A major portion of this land acquisition money will be for Federal purchases and for purchases by "conservation" groups who often "flip" their purchase to the Federal government at a profit. CARA represents a vast increase in the potential for Federal purchases of private land within state. The legislature of the State has an obligation to its citizens to proactively participate in all Federal purchases. This is not to say that sales will not be permitted but the interest of the state and the people will be protected. It means only that the intended guardian of state sovereignty, the state legislature, will determine whether any such sale will proceed.

State consent is not an infringement on private property rights. State consent is a defense of the interests of the State and of the liberty of the people that springs from meaningful differentiation and division of power between the national and state governments. In brief state inaction has allowed the loss of state’s jurisdiction and corresponding loss of individual liberties. The legislature needs to affirm and assert the consent role of the legislature as an essential and overdue revitalization of constitutional federalism. By inaction a state’s legislature is allowing their state authorities to be undermined by the federal government! It is time for state legislatures to stand up and exercise their fiduciary responsibility to the people they represent.



Researched and written By Bill Howell and J. L. (Jim) Tenney, Arizona State President of Frontiers of Freedom People of the USA (FOF-PFUSA) Mr. Tenney can be reached at 4520 West Airport Rd., Willcox, Arizona 85643, Phone 520-384-2834, Fax 520-384-6396, Email jt_assist@vtc.net.