Professor Kochan, author of the White Paper on Utah's HB148 explains:

"The critical provisions of the UEA (Utah Enabling Act) for review are in Section 3 and Section 9. The only appropriate way to read these provisions is in conjunction with each other and the whole agreement in the UEA .  The U.S Supreme Court has explained that it is a "cardinal principle of contract construction: that a document should be read to give effect to all its provisions and to render them consistent with each other."  Moreover, as the Court has also recognized, "For the purposes of construction, we must look to the whole instrument.

"The intention of the parties is to be ascertained by an examination of all they have said in their agreement, and not of a part only."

So, we begin our analysis of the text of the UEA by looking at the relevant part of Section 3:

That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of theCongress of the United States; . . . that no taxes shall be imposed by the State on lands or property therein belonging to or which may hereafter be purchased by the United States or reserved for its use;

"Section 3's "forever disclaim" language leads some to believe that Utah's case for upholding the TPLA is a dead letter.  However, it must be read in context.  First, even within this section the language shows that the parties anticipate that title will at some point be extinguished (the "until the title thereto shall have been extinguished" language together with the discussion of "disposition", i.e. disposal). When opponents focus only on the "forever disclaim" segment of the UEA and say that this one sentence settles the case against the TPLA , they are looking at "a part only"  and "a single sentence" - approaches expressly rejected under the rules of construction recognized in the courts and supported by U.S. Supreme Court precedents explaining precisely such rules. The interpretation of any written instrument must be informed by surrounding words and all sections.

"Moreover, this language is perfectly consistent with the ends to be achieved. The federal government needed clean title to lands so that it could dispose of these properties to willing buyers. ... The UEA resolved that and sent a signal to would-be buyers of the world that the uncertainty of title had been resolved. The State in return also gave a promise that added further certainty to the buyers - the State agreed it did not have the power to interfere with the process of disposal or with rights granted through disposal. The State as part of its obligation under the compact gave the federal government the clean title and agreed not to interfere with the federal disposition-which included not prejudicing the private recipients of title gained through disposal.

"It was necessary to give the United States clean title and for the states to accept a duty of noninterference 1) so that the federal government could dispose of property with certainty of title which would be necessary to attract market purchasers; 2) so that in the first instance the United States could directly realize and control the gains from the disposals such that it could use the proceeds in accordance with its commitments made to the original states such as paying off Revolutionary War debts; and 3) so that, because the United States would be successful in disposing of property to willing buyers at full price (i.e., not discounted by uncertainty), the United States could sell at the highest price possible which also benefited the state of Utah because they received a percentage of such sales elsewhere in the UEA, particularly Section 9."

We will look at Section 9 of the Utah Enabling Act next week.

Education is our goal at the American Lands Council because we believe it is so imperative that we understand our history and our laws if we are to maintain the sovereignty of our states!  For this reason, we continue to ask you to send the  White Paper, commissioned by the Federalist Society, to all of your county, city and state attorneys, legal advisors and government affairs personnel, as well as your elected officials and ask for their review, commentary and feedback. 

Federalist Society White Paper

Executive Summary of Federalist Society White Paper