The Constitution simply does not authorize the federal government to own any of this land. All of it is being held unconstitutionally and all of it should be returned to the private property owners from which it was taken or to the states in which it exists, period.
This article dates back to 2014, but it’s worth revisiting in light of the occupation of the Malheur National Wildlife Refuge in southeastern Oregon. There’s a school of thought which holds (errantly, as it turns out) that the federal government doesn’t have constitutional authority to own land. It’s an argument particularly popular in the western United States, where the federal government owns large tracts of land in place like Nevada. For example, more than half of my home state of Oregon is owned by the federal government. Ranchers, miners, and other commercial interests feel they should have the right to work these lands for their own profit and are being denied that legitimate right by a tyrannical government.
The truth is that all “federal ownership” really means is that land is owned by the American people. Teddy Roosevelt’s legacy was recognizing that land wasn’t merely something to be mined, grazed, and/or otherwise exploited for profit. Some land, because of its surpassing natural beauty or unique and fragile ecology, were thought to need protection from those whose only interests was in dollars and cents. A hundred years later, some on the Far Right are arguing that this is a clear case of government overreach, that nowhere in the Constitution is there to be found justification for the federal government owning land. This is the case they make when they demand that said land be returned to the private property owners from whom it was taken.
OK…so if we’re to follow that argument and agree that federally-owned land should be returned to its rightful owners, we wouldn’t be talking about ranchers or miners. We’d be talking about Native Americans (in this case the Burns Paiute tribe), who were, in fact, the original owners. You’re not going to hear that argument…because it doesn’t mesh with the misleading narrative being pushed by people like Judge Andrew Napolitano (who, as a judge, really should know better) and the Bundy Brigade (whose Constitutional interpretations are as sophomoric and inept as they are self-interested).
In fact, the Constitution absolutely provides for the federal government to own land:
The short answer is that the Constitution, through the Property Clause, specifically gives the government the power to own land. Over time, the Supreme Court has ruled that not only does the government own the land, but it enjoys broad rights in deciding what happens on that land.
In 2007, the Congressional Research Service, the nonpartisan research arm that works on behalf of Democrats and Republicans, explored the legal roots of federal land ownership. Its finding was unambiguous.
“The Property Clause gives Congress authority over federal property generally, and the Supreme Court has described Congress’ power to legislate under this Clause as ‘without limitation,’ ” the researcher wrote.
Even Conservative scholars tend to concur on this point, that the Property Clause provides for federal ownership and management of land. Beyond the purely legal aspect of the argument, there’s also the moral argument that land doesn’t and shouldn’t exist solely for the purpose of commercial exploitation. Some land should be preserved in order that future generations might be able to appreciate nature and its physical beauty.
The Heritage Foundation, a conservative think-tank and activist organization in Washington, D.C., says much the same thing on its online guide to the Constitution. It provides the key text from Article IV of the Constitution.
“The 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.”
To speak to the point made specifically by the Bundy Brigade, it’s already been addressed- and refuted- by the highest court in the land. It seems The Gang That Could Remember to Bring Snacks © was not amused because in their minds they’re authorities on the Constitution- if by “authorities” you mean “those who cherry-pick in order to support their self-interest.”
In a 1976 ruling, the U.S. Supreme Court confronted the point Bundy is trying to assert. New Mexico state officials tried to keep wild burros that they had seized from federal land. The officials claimed what the Oregon occupiers claim - that the Constitution strictly limits what property the federal government can own or control.
State officials argued in Kleppe vs. New Mexico that Congress had no power over public lands without state consent. “This argument is without merit,” the Supreme Court ruled.
State officials confused a constitutional provision focused more narrowly on how the federal government oversees land it acquires from a state with the unlimited powers granted to the federal government under the Constitution’s Property Clause, the court said.
That clause trumps all, the court ruled.
Despite this, the Bundy Brigade continues to insist that federal land in Harney County be transferred out of federal control. They’d started by voiding all deeds that transferred land to the federal government. The problem with this “solution” is that much of federal ownership dates to territorial times, which means there was no prior (White) owner. Returning land to the original owners would mean in many cases returning it to the Paiute tribe, something the Bundy Brigade clearly isn’t intending as the solution they’re seeking.
The truth is, regardless of the arguments made against federal land ownership, the Constitution and case law make it clear that this issue has been settled. Besides, even if land was turned over to Harney County, commissioners there have made it clear they lack the capacity and funding to maintain and operate it. The Bundy Brigade came in by force of arms, occupied the wildlife refuge, and began making demands on behalf of the people of Harney County without consulting anyone beforehand. The majority of people in Harney County don’t support the Bundy Brigade; they just want them to leave. It’s time for them to do just that.
