\\jciprod01\productn\H\HLE\42-2\HLE203.txt unknown Seq: 1 3-JUL-18 10:59 A HISTORICAL REASSESSMENT OF CONGRESS’S “POWER TO DISPOSE OF” THE PUBLIC LANDS Jeffrey Schmitt* The Property Clause of the Constitution grants Congress the “Power to Dispose” of fed- eral land. Congress uses this Clause to justify permanent federal land ownership of approxi- mately one-third of the land within the United States. Legal scholars, however, are divided as to whether the original understanding of the Clause supports this practice. While many schol- ars argue that the text and intent of the framers show that Congress has the power to perma- nently own land within the states, others contend that these sources demonstrate that Congress has a duty to dispose of all federal land not held pursuant to another enumerated power. This scholarly debate has become increasingly important in recent years as a popular movement for state ownership of federal land has reemerged in the West. This Article argues that the debate over the history of the Property Clause should move beyond the Founding. The original meaning of the text, the intent of the framers, and the precedent of the early Supreme Court simply do not resolve the issue of whether Congress’s Duty to Dispose includes the power to permanently retain land within the states. This Article therefore provides the first detailed examination of how Congress’s Power to Dispose has been understood since the Founding. It concludes that, although Westerners have repeatedly chal- lenged Congress’s power when federal land policy has restricted western development, domi- nant opinion has always supported a broad construction of Congress’s power. In fact, those who favor federal land ownership have long argued that giving land to individual states would violate a constitutional obligation for Congress to use the land for the common benefit. When constitutional history is properly applied to Congress’s Power to Dispose, it strongly supports federal land ownership. Introduction ....................................................... 454 R I. Interpreting the Property Clause: Text, Intent, and the Need for a More Complete History ........................................ 458 R A. The Text of the Property Clause ............................ 458 R B. Original Intent and the Property Clause ..................... 460 R C. Post-Ratification History and Constitutional Interpretation .... 462 R II. Articles of Confederation to the Founding ........................ 464 R A. The Confederation Period .................................. 464 R B. The Founding ............................................ 469 R III. The Forgotten History: Ratification to Civil War ................. 470 R A. Early Public Land Policy .................................. 470 R B. Distribution, Graduation, and Cession ....................... 471 R C. Cession and Nullification .................................. 482 R D. Calhoun’s Cession Bill ..................................... 488 R E. Supreme Court Precedent .................................. 491 R * Assistant Professor of Law, University of Dayton School of Law. I would like to thank Adam Winkler, Jamal Greene, and faculty workshops at the University of Cincinnati Col- lege of Law, the University of Toledo College of Law, the University of Akron School of Law, and the University of Dayton School of Law for their helpful comments on earlier versions of this Article. \\jciprod01\productn\H\HLE\42-2\HLE203.txt unknown Seq: 2 3-JUL-18 10:59 454 Harvard Environmental Law Review [Vol. 42 IV. Reconstruction to Today ....................................... 495 R A. Federal Land Policy ....................................... 495 R B. Court Precedent........................................... 504 R C. Modern Developments: The Sagebrush Rebellion and Land Transfer Movement ....................................... 509 R V. Summarizing the History and Applying it to Congress’s “Power to Dispose” ..................................................... 513 R A. History Supports a Broad Construction of the Power to Dispose . 513 R B. The Equal Sovereignty Argument ........................... 515 R C. The Common Benefit Principle ............................. 517 R Conclusion ........................................................ 518 R INTRODUCTION The Property Clause of Article IV provides: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”1 Pursuant to this authority, the federal government owns nearly one-third of the land within the United States.2 A growing popular movement in the West, however, demands that the federal government transfer ownership to the states.3 In 2012, for ex- ample, Utah passed legislation purporting to require Congress to transfer title to more than thirty million acres to the state.4 Since that time, politicians have pushed for similar legislation in other states and in Congress.5 Radicals like Ammon and Cliven Bundy, moreover, have galvanized Western support for the movement and drawn national attention to the issue of federal land ownership.6 Although economic and political factors are also at play, the movement’s sup- porters argue that federal land ownership within the states violates the original meaning of the Constitution, the intent of the framers, and the equal sover- eignty of the states.7 1. U.S. CONST. art. IV, § 3, cl. 2. 2. See, e.g., Donald J. Kochan, Public Lands and the Federal Government’s Compact-Based “Duty to Dispose”: A Case Study of Utah’s H.B. 148—The Transfer of Public Lands Act, 2013 BYU L. REV. 1133, 1137 (2013). 3. See Kirk Johnson, Siege Has Ended, but Battle Over Public Lands Rages On, N.Y. TIMES (Apr. 14, 2017), https://perma.cc/9YJZ-MLL5. See generally Uma Outka, State Lands in Modern Public Land Law, 36 STAN. ENVTL. L.J. 147, 152–62 (2017). 4. Transfer of Public Lands Act, H.B. 148, 59th Leg., Gen. Sess. (Utah 2012), codified at UTAH CODE ANN. §§ 63L-6-101 to 63L-6-104 (2017). 5. See Outka, supra note 3, at 152–60. R 6. See, e.g., Leah Sottile, Jury Acquits Ammon Bundy, Six Others for Standoff at Oregon Wildlife Refuge, WASH. POST (Oct. 27, 2016), https://perma.cc/HEL2-FPH5. 7. See id.; George R. Wentz Jr. & John W. Howard, Americans in the Western States are Denied Equal Rights, NAT’L REV., (Aug. 2, 2016), https://perma.cc/HSN5-LR4W; JOHN W. HOWARD ET AL., LEGAL ANALYSIS OF THE LEGAL CONSULTING SERVICES TEAM PRE- \\jciprod01\productn\H\HLE\42-2\HLE203.txt unknown Seq: 3 3-JUL-18 10:59 2018] Congress’s “Power to Dispose of” the Public Lands 455 There is a long-standing scholarly debate over whether these arguments are correct.8 Many legal scholars argue that the founding generation believed that Congress had a constitutional duty to divest all federal land held under the Property Clause.9 Under this reading of history, indefinite federal landowner- ship was not seen as legitimate until attitudes towards federal power and the environment changed during the twentieth century.10 Other scholars, however, dispute this reading of history and argue that the founding generation and early Supreme Court believed that Congress had the power to permanently own land within the states.11 All of these scholars rely almost exclusively on the text, evidence of framers’ intent, and early court precedent. This Article argues that both sides of the debate are wrong to assume that the Founding provides an answer. Like so many other concrete issues of mod- ern constitutional law, the framing generation had no reason to discuss the issue of whether Congress has the power to permanently own land within the states. Although the federal government owned vast tracts of western land, it owned no land within the existing states. Moreover, sources that address only Congress’s power over the territories are inconclusive, because permanent fed- eral ownership within the states arguably raises very different concerns about state sovereignty and federalism. The original public meaning of the text, intent of the founding generation, and precedent of the early Supreme Court are therefore inconclusive. When the original meaning of the Constitution does not resolve a con- crete issue of law, the Court and most theories of constitutional interpretation give significant weight to longstanding historical practices. This Article there- PARED FOR THE UTAH COMMISSION FOR THE STEWARDSHIP OF PUBLIC LANDS (2015), https://perma.cc/E6MM-4CGN. 8. Although scholars vigorously debate the history, modern legal doctrine strongly supports federal land ownership. See ROBERT B. KEITER & JOHN C. RUPLE, WALLACE STEGNER CTR. FOR LAND, RES., & ENV’T,A LEGAL ANALYSIS OF THE TRANSFER OF PUBLIC LANDS MOVEMENT, WHITE PAPER NO. 2014-2, at 2 (2014), https://perma.cc/Q23Q- BA3C; cf. Nick Lawton, Utah’s Transfer of Public Lands Act: Demanding a Gift of Federal Lands, 16 VT. J. ENVTL. L. 1, 17–34 (2014). 9. See Albert W. Brodie, A Question of Enumerated Powers: Constitutional Issues Surrounding Federal Ownership of the Public Lands, 12 PAC. L.J. 693, 694 (1981); Robert E. Hardwicke, Carl Illig & C. Perry Patterson, The Constitution and the Continental Shelf, 26 TEX. L. REV. 398, 419–23 (1948); Kochan, supra note 2, at 1145–49, 1159–65; Carolyn M. Landever, R Whose Home on the Range? Equal Footing, the New Federalism and State Jurisdiction on Public Lands, 47 FLA. L. REV. 557, 578–79 (1995); Robert G. Natelson, Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U.