Today's post is in response to an opinion piece in the Cowboy State Daily by Rod Miller,
whom I lovingly think of as the "Sagebrush Sage". It is a reprint of an email I sent to him directly this morning.
I always read your column, sometimes in agreement, other times not as much. However, you are always thoughtful, and experienced, and I thank you for sharing those thoughts. I submit your argument may be somewhat limited in terms of mootness of the argument over whether or not the State exerts sovereign territorial jurisdiction of the land within its boundaries, and it seems that the Constitution of the United States places strict controls on the ownership of territory within a state by the federal government. Arguably, Federal lands within the State of Wyoming were conferred to it by the Act of Admission, which made us a State and thus grated us territorial and jurisdictional sovereignty within our defined borders. Hopefully what I provide gives you some food for thought.
This statement from today’s column intrigued me:
While it sounds nice, it ignores the legal and constitutional realities that render it moot. When proponents say “take our land back”, they neglect the fact that federal lands never belonged to the State of Wyoming in the first place.
Both our Wyoming Constitution and our Act of Admission contain specific language that precludes the goal of the Sagebrush Rebellion. Simply stated, it ain’t gonna happen.
The questions at root for us, and largely the entire country, seem to me:
1.) What does it mean to be a “State” in a federal republic? Are we independent sovereign territories, or simply administrative districts of the Federal Government? We are, of course, independent sovereign territories, with independent constitutions, governments, specific laws and customs, and people.
An accepted legal definition of a ‘state' can be found here:
"A state is a political division of a body of people that occupies a territory defined by frontiers. The state is sovereign in its territory (also referred to as jurisdiction) and has the authority to enforce a system of rules over the people living inside it.” (Source: https://www.law.cornell.edu/wex/state)
2.) What were we granted in the Act of 1868 that established the Wyoming Territory that were then formally GRANTED to us in the Act of Admission in 1890? The language that we were granted the lands is very explicit, and the conditions were, as well? Sources:
Act of Admission: https://codes.findlaw.com/wy/act-of-admission/wy-st-act-of-admission/
Act establishing the Wyoming Territory: https://codes.findlaw.com/wy/wyoming-organic-act/wy-st-organic-act/
The Act of Admission grants us the land in the territory in Section 2:
§ 2. Boundaries; limitations as to Yellowstone National Park; federal jurisdiction in Yellowstone National Park. The said state shall consist of all the territory included within the following boundaries, to-wit: Commencing at the intersection of the twenty-seventh meridian of longitude west from Washington with the forty-fifth degree of north latitude and running thence west to the thirty-fourth meridian of west longitude; thence south to the forty-first degree of north latitude; thence east to the twenty-seventh meridian of west longitude, and thence north to the place of beginning. Provided, that nothing in this act contained shall repeal or affect any act of congress relating to the Yellowstone National Park, or the reservation of the park as now defined, or as may be hereafter defined or extended, or the power of the United States over it; and nothing contained in this act shall interfere with the right and ownership of the United States in said park and reservation as it now is or may hereafter be defined or extended by law; but exclusive legislation, in all cases whatsoever, shall be exercised by the United States, which shall have exclusive control and jurisdiction over the same; but nothing in this proviso contained shall be construed to prevent the service within said park of civil and criminal process lawfully issued by the authority of said state; and the said state shall not be entitled to select indemnity school lands for the sixteenth and thirty-sixth sections that may be in said park reservation as the same is now defined or may be hereafter defined.
By admitting us to the Union, the government conveyed the land of the Territory to the new State of Wyoming, thus giving clear title and deed and sovereign jurisdiction of the land to the State of Wyoming, with the exception of Yellowstone National Park (The constitutionality of THAT seems to collide with Article 1, Sec 8 of the U.S. Constitution, and the 10th Amendment).
3.) What does the U.S. Constitution say in Article I, Section 8 about the ownership of lands by the Federal Government? Are there inherent limitations on that? The text is:
"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of 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, dock-Yards, and other needful Buildings;–And…”
There is clear stipulation that the federal government must purchase, with the consent of the legislature of a State, land for the erection of Forts, Magazines, Arsenals dock-yards and other needful buildings. Vast tracts of land held for any other purpose would seem to be contrary to that, so what authority does the federal government have to hold territory in a State? Did they purchase all this land from Wyoming? Or did they simply impound/claim/annex it? In any case, this seems to constrain the federal government from holding any land for any other purpose, because the government only has those powers specified in the constitution. There is no amendment that says otherwise.
4.) Address Amendment 10 to the above, that limits the federal government’s powers to only those specified, and reserves the remaining rights and powers to the States.
5.) Is it not in our interest to decide for ourselves how the resources of our State will be used for the benefit of our polity? It seems on paper, literally, that this was the express intent of the People of the United States, who authored our current constitution. By law, as I assert is demonstrated above, this is our (Wyoming’s) exclusive purview.
So, what does it mean to be a State, versus a territory, district, protectorate, etc…?
As a State, if you don’t own your land, you are not sovereign. If you are a State, by definition you exert exclusive sovereign authority over your territory and its people. A state is the people in a defined territory organized under a duly constituted government. Otherwise, you are a subordinate administrative district of a central government.
It seems that people may be ignoring some fundamental components of our federal and state structure and perhaps simply conditioned to accept that the Federal government can, of course, simply claim ownership of land that it is not legally entitled to control.
I look forward to your thoughts, especially given your long experience in the governor’s office. The Freedom Caucus and the Republican Party are inseparable elements. If the Republican Party at large didn’t engage with the BLM about this plan at all, then woe betide us. But laying this solely at the feet of a caucus that is insisting that Wyoming’s territorial sovereignty be respected in accordance with the law and the constitution is perhaps inaccurate.