Whose land is it?

Connor Boyack Director, Utah Tenth Amendment Center
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Has the federal government become so arrogant as to claim ownership of the land over which it has jurisdiction? Put differently, does the United States of America exist to protect and defend the property of each individual living within its borders, or to own and control that property itself?

This is not a theoretical question reserved for intellectual banter. It is a real question pondered often, especially by those in western states, where the majority of land is owned and regulated by the federal government. Although the federal government owns less than 10% of almost every eastern state, it owns large swaths of the West: 65% of the land in Utah, 83% of Nevada, 63% of Idaho, 45% of Arizona, 44% of California and similar percentages of the surrounding western states.

That may soon change if the efforts of the Utah legislature are successful. The legislature has passed a package of bills that demands that the federal government give up its claim to huge sections of “public” land. One of the bills includes a demand that nearly 30 million acres be handed over to the state — nearly 50% of the land in Utah — by 2014.

“If sovereignty means anything, it means not having to say pretty please, or mother may I,” state Rep. Ken Ivory, who is leading the Utah initiative, recently told Fox News.

Of course, the federal government doesn’t like any opposition to its mandates and practices; it has come to expect “pretty please” and “mother may I” of the several states. This point was made clear when the head of the Bureau of Land Management said last week that it was “divisive” to spend time worrying about which level of government should manage the land. “There are a lot of things that we have in common, and we ought to be focusing our attention on those common goals,” he said.

To understand what’s really being said here, imagine an employee stealing his boss’s car and letting the boss use it only to commute to and from work, under threat of violence for non-compliance. Imagine further that the employee gives his boss specific guidelines as to what type of gas he may use, what he may eat while in the car and how many passengers he can take. Then imagine the boss (rightly) being fed up about this illegitimate theft and demanding the car be returned, only to be told that such a complaint was “divisive” and that rather than worrying about the car, he should work with the employee to advance “common goals.” Pathetic, right?

If such an analogy is to be proven applicable, the question must be asked: Whose land is it? Or, better put, which level of government has the authority to own, regulate and tax that land?

During the nineteenth century, the federal government acquired what is now the western U.S. through the Louisiana Purchase, the purchases of Florida, the Oregon Territory and Alaska, the Treaty of Guadalupe Hidalgo and a few smaller agreements. Until 1976, the federal government had a policy of gradually disposing of these lands in order to form new states. The money generated from the land sales would then be used to pay down the national debt. In 1833, President Andrew Jackson remarked that such an arrangement “bound the United States to a particular course of policy … by ties as strong as can be invented to secure the faith of nations.”

In 1894, Congress passed Utah’s Enabling Act, which laid out the conditions under which Utah could become a state. The act guaranteed that if Utah became a state, the federal government would sell off Utah’s federally owned lands in a timely fashion. Utah complied with the act and became a state in January 1896.

In 1976, Congress passed the Federal Land Policy Management Act, which says 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.” The Federal Land Policy Management Act clearly violates Utah’s Enabling Act, as well as the enabling acts of other western states.

Utah and other states object. Where Utah is now leading, other western states are closely following with model legislation they can likewise implement. For legislators in Utah, the issue is a matter of contract, enforcing terms agreed upon when the state was created. As Margaret Dayton, a Utah state representative, said: “The Legislature demands that the federal government transfer the title of the public lands within the Utah borders that were agreed to in 1896 when Utah became a state.”

In short, the federal government promised to give Utah the land it controlled, selling it off to pay down the national debt. In a flagrant violation of that contractual obligation, the federal government now wants to keep two-thirds of the land in the entire state with no regard for its previous promise, let alone the massive imbalance in federal land holdings between eastern and western states.

This is a battle long overdue, and one which is gaining significant support in the West. “Divisive” indeed — Utah and other states are positioning themselves for a fight. Whose land is it? It’s certainly not the federal government’s, and it’s time to take it back.

Connor Boyack is director of the Utah Tenth Amendment Center and author of Latter-day Liberty: A Gospel Approach to Government and Politics.