Last week, I began sharing with you an experience I had this summer. I was invited to participate on a continuing legal education panel regarding the transfer of public lands.  Also on the panel was a law professor frequently quoted as saying this effort is "clearly unconstitutional."  He quoted two reasons why he felt the Transfer of Public Lands Act was unconstitutional.   

The first reason referred to the annual precipitation of these lands. Claiming that the western lands were too arid, he implied that, therefore, the federal government keeps all the public lands.  We showed last week how this flawed argument ignores the fact that the two states with some of the most precipitation are Alaska and Washington, respectively, whose lands overwhelmingly remain under federal control. 

As this law professor's second reason for the federal retention of the public lands, he claims that the founding fathers of the western states simply ransomed away these lands for the privilege of statehood.  His reasoning was that all the enabling acts of the western states contain the words "forever disclaim all right and title to the unappropriated lands lying within their boundaries...,"

Interestingly, if our law professor were to read the whole sentence, rather than a few select words, he would discover that the western states only gave clean title to the federal government "for temporary purposes" (Pollard v. Hagan) as the rest of the sentence provides it is only "until title thereto shall have been extinguished."  In fact, if he had read the whole enabling act he would have discovered that the federal government also promised the western states

"That five per centum of the proceeds of the sales of public lands lying within said States which shall be sold by the United States...shall be paid to the said States...for the support of common schools within said States, respectively." -- Montana, Washington, North Dakota, South Dakota Enabling Act of 1889 §13

Unfortunately, we have been trained to believe that the federal government can do whatever it wishes.  But our Constitution was put in place by wise men who had keenly felt the consequences of an all-powerful government and designed our nation to be free of such land barrons. We fought the battle for self-governance 237 years ago...and won. There is no need for our states to give up our position now.  

Please give your elected officials the courage to stand strong and preserve the sovereignty of our states, as well as our ability to care for the health, safety and welfare of our citizens.