The Federal land grab – a quick history (part 1)

A frequently discussed issue in libertarian and free-market anarchist circles regards the fact that there is NOT constitutional power or permission given to the FedGov to own anything except for specific military and naval properties. And that only with the specific permission of the States in which those properties are located.

The constitutional citation is clear: Article I, Section 8: The Constitution grants Congress the power to “exercise exclusive legislation… over such District (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like 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.”

Of course, this power has been stretched beyond any reasonable recognition. Indeed, the evidence is that the language is ignored. Blanket approval of a State’s legislature is assumed to be granted, and no Federal agency that we are aware of in the past 130 or so years has ever asked for “consent” for a purpose. Needful or not.

It is not something that was an instant accomplished fact. It developed over decades after 1787. We may suspect that the first elements of the current overarching power developed with the Northwest Territories (the “old” Northwest, now Ohio, Indiana, Illinois, Michigan and Wisconsin) when the FedGov dictated how land should be acquired and then “disposed of.” They cited the power which the States gave to the FedGov: the exclusive power to negotiate treaties with the AmerInd nations. The treaties generally included ceding land to the FedGov, which then doled it out. But the real impetus was the Louisiana Purchase of President Jefferson in 1803: a seemingly infinite area of land filled with hostile tribes and long fought over by them and various European powers.

For more than a hundred years, the stated policy of the FedGov – with the presumption of State governments – was that the land was controlled by the FedGov but was to be transferred into private hands as quickly as possible. Railroad grants of land to pay for and encourage investment in building the things was some of the first ways of doing this. The Homestead Act of 1863 and the Mining Act of 1872 were the real engines of doing this.

Before that, of course, the FedGov had negotiated and acquired even more land. The treaty with the UK gave the “New” Northwest to Americans: what later became Washington, Oregon, Idaho, and part of Montana. Or we should say, to the FedGov – who then doled out some of the land. The annexation treaty admitting Texas to the Union did not get the Feds any land in what is now Texas, but did get DC a lot of the pieces of Oklahoma, Kansas, Colorado and New Mexico. The defeat of Mexico in 1848 gave even more – although pre-treaty rights to some land was recognized – even the Spanish and Mexican land grants in California, Arizona, and New Mexico. The land that the FedGov gave up in all these areas through homesteading and patented mining claims – and railroad grants – was only a small part of the total land. Even giving the States two out of every 36 square miles (sections) as “school lands” to provide funds for public (government-run, tax-funded) schools left vast areas in Federal hands. The reduced AmerInd homelands (or lands of exile) were also effectively in Federal hands. (We called it “in trust” for the various “domestic dependent nations” (tribes) or individual enrolled members of the tribes but everyone knew who called the shots and actually owned the land.)

Even in the 1870s, the FedGov changed its policy: Yellowstone National Park was established in 1871, thereby leaving that land permanently in FedGov hands. Much more followed.

States were formed and admitted to the Union often controlling a very small percentage of their land. Everything that wasn’t privately- or corporately- owned or given as “school land” remained in FedGov ownership. The part of Article I Section 8 “exercise exclusive legislation” was about the only part that remained in effect. Of course, up until the ascendency of the Roosevelt-Taft-Wilson “Progressives” it can be argued that the military installations did not need to have consent of a State legislature because most of them were not in States – just territories. But with the admission (long overdue) of Arizona and New Mexico, that era came to an end.

But the Great War (World War 1) ended that: the FedGov took back land and established what became permanent military reservations on land that should have eventually become privately-owned, fee land. So after a hundred or so years, the so-called Progressives ended the policy of homesteads, patented mining claims, and other transfers FROM the FedGov: DC was to become the “permanent” owner of vast stretches of land – often leaving the newly formed and admitted States as not even having control.

And then the FedGov started taking land back! (Always, of course, paying for it, right?) The trend accelerated during the Great Depression and World War 2. The most egregious example of Federal Land grabs was the FDR administration taking Great Smokey Mountains National Park and the Shenandoah Parkway: exercising eminent domain over the properties of tens of thousands of people. (Look up Cade’s Cove some time.) And then enormous areas for military installations and training areas: from Fort Irwin and Fort Ord California to Fort Benning (Excuse me, Fort “Liberty”) and Fort Dix and Eglin Air Force Base on the East Coast.

And of course, the “needful buildings” clause, like the “general welfare” clause in the Preamble became a catch-all. Who defines “needful?” Congress, of course. And who decides whether the State or the FedGov has jurisdiction – control? Again, Congress. And when was the last time Congress asked for a State’s consent?

Stay tuned for part 2. And if you know the answers, let us know!

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