The American Lands Council and Rep. Ken Ivory’s bill to give federal lands to the state of Utah (HB 148) have generated a great deal of press in recent weeks. This effort is based on three myths.
The first myth is that the federal government made a promise to give public lands to states. In fact, there is no law or Supreme Court case that makes such a promise. Nor is there any law or court case that mandates that the amount of public land in each state be the same.
Rather, the U. S. Constitution clearly gives the federal government the right to decide how, if, and when to dispose of and manage public lands: "The Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States" (Article 4, Sec. 3).
The government has exercised that right extensively. In the Nineteenth Century, Congress passed a series of give-away laws (the Homestead Act, The General Mining Acts, The Timber Culture Act, the Desert Land Act, and multiple railroad land grants) that conveyed 1.3 billion acres of federal land to western states, corporations, and individuals living in western states.
This federal policy of giving away public land was changed by the passage of the Federal Land Policy and Management Act of 1976, which is the authorizing law for the Bureau of Land Management. No Supreme Court case has found this act to be unconstitutional, and it remains in effect today.
The second myth is that "At statehood the federal government promised all newly created states that it would transfer title to our public lands." In fact, just the opposite promise was made. Quoting directly from the Utah Enabling Act (the law that authorized the territory of Utah to become a state): "That the people inhabiting said state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof…." The Act grants to the state very specific tracts of land for schools, universities, hospitals, etc., but then reminds the state in unambiguous terms that this is all the public land to which the state is entitled: "The said State of Utah shall not be entitled to any further or other grants of land for any purpose than as expressly provided in this act."
The third myth is that H.B. 148 will "get back" these lands for the state of Utah. In fact, the public lands never belonged to the state of Utah. The U. S. government took these lands by force from the state of Mexico in the 1848 Treaty of Guadelupe Hidalgo. We also took these lands by force from American Indian tribes. Thus, the public lands have always been under the management of the U. S. government since they became part of the United States.
The real issue is whether the American people (314 million of them) want to give, for free, trillions of dollars of land and resources to the state of Utah. That is an issue that should be debated by all stakeholders, but let us base this discussion on an accurate understanding of law and policy.
Daniel McCool is a professor of political science at the University of Utah.
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