American Legislative Exchange Council Resolution in Support of the Transfer of Public Lands.

1. Resolution Demanding that Congress
Convey Title of Federal Public Lands to the States
WHEREAS, noted economist, John Kenneth Galbraith, opined, “Where socialized ownership of
land is concerned, only the USSR and China can claim company with the United States;”
WHEREAS, more than fifty percent (50%) of all lands in the Western United States are still
controlled by the federal government;
WHEREAS, less than five percent (5%) of all lands east of Colorado (and Hawaii) are federally
controlled;
WHEREAS, responsibly unleashing the trillions of dollars of abundant resources locked up on
federally controlled lands -- and with them American independence, ingenuity and prosperity -- is
the only solution big enough to realistically and sustainably resolve national deficits persistently in
excess of $1 trillion a year, an exponentially increasing national debt presently over $16 trillion,
and mounting national liabilities for unfunded obligations in the tens of trillions of dollars more;
WHEREAS, because the budgets of all States, regardless the percentage of federally controlled
lands within their boundaries, are precariously dependent (30-50% for most States) upon federally
sourced funds, realistically and sustainably reducing national unemployment, debts, deficits and
unfunded obligations, and growing national Gross Domestic Product is a matter of present and
serious moment for all States;
WHEREAS, federal management policies on the public lands are harming the lands and laying
waste to our abundant endowment of natural resources – for example, because of the inordinate
buildup of fuel in the national forests due to decades of unduly restrictive federal “preservationist”
policies, the FBI and Department of Homeland Security have recently issued criminal activity alerts
warning that Al Qaeda is actively publishing in their “Inspire” terrorism magazine of the ability to
burn down national forests -- causing billions of dollars in damage and destroying watersheds for
decades -- with only a few matches;
WHEREAS, the promise and duty of the federal government to timely dispose of the public lands is
the same in the statehood compacts (i.e. enabling acts) for all newly created states both east and
west of Colorado;
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2. WHEREAS, the promise and duty to dispose of the public lands originates from a “solemn
compact” among the States in 1780, during the Revolutionary War, whereby the States ceded their
“claims” to all western lands to the national government on condition that it timely dispose of the
lands to create “distinct republican states with the same rights of sovereignty, freedom and
independence as the other states” and to use the proceeds, as there may be, to pay for the War and
the resulting national debt;
WHEREAS, this “solemn compact” established a “claim” for the United States to pay the national
debt and “claims” for all States that western lands be timely disposed of only to create equally
“distinct republican states;”
WHEREAS, the records of the constitutional debate make clear that Article IV, Section 3, clause 2
of the U.S. Constitution (the “Property Clause”) grants Congress “the power to dispose of and make
all needful rules and regulations respecting the Territory and other property belonging to the United
States;” merely for the purpose of preserving the status quo from the “solemn compact” of 1780
regarding the federal government’s promise and duty to timely dispose of the western lands to
create distinct republican states and to only use the proceeds to pay the national debt;
WHEREAS, the Property Clause also establishes that “nothing in this Constitution shall be so
construed as to Prejudice any claims of the United States, or of any particular State” viz. “claims”
on the part of the United States for raising revenue to pay the national debt and “claims” on the part
of all States that the western lands be timely disposed of only to create equally distinct republican
states;
WHEREAS, the federal government had previously controlled for decades as much a ninety percent
(90%) of all lands in States such as Indiana, Illinois, Missouri, Arkansas, Louisiana, Mississippi,
Alabama, and Florida;
WHEREAS, these states joined together and persistently pressured Congress to honor their
statehood promise and “solemn compact” for the timely disposal of their public lands;
WHEREAS, the Resolution of Illinois of February 2, 1829, which is illustrative of the numerous
resolutions from this assembly of States, decried that any delay on the part of the federal
government in disposing of their public lands “operates as a virtual infraction of the compact” and
further, that “Should the present oppressive system continue, and no amelioration take place, it will
not be denied that this question is susceptible of being presented in so grave an aspect as to involve
considerations of the deepest magnitude, and demand the most serious and enlightened reflection of
those charged with the interests of the confederacy.”
WHEREAS, the Public Lands Committee Report of the 20th U.S. Congress, dated February 5, 1828
found “If these lands are to be withheld, which is the effect of the present system, in vain may the
People of these States expect the advantages of well settled neighborhoods, so essential to the
education of youth . . . Those States will, for many generations, without some change, be retarded
in endeavors to increase their comfort and wealth, by means of works of internal improvements,
because they have not the power, incident to all sovereign States, of taxing the soil, to pay for the
benefits conferred upon its owner by roads and canals. When these States stipulated not to tax the
lands of the United States until they were sold, they rested upon the implied engagement of
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3. Congress to cause them to be sold, within a reasonable time. No just equivalent has been given
those States for a surrender of an attribute of sovereignty so important to their welfare, and to an
equal standing with the original States.”
WHEREAS, after the national debt was once retired in the early 1830s, Congress, in 1833, passed
legislation to use proceeds from disposing of public lands for other “general purposes” and
President Andrew Jackson, in vetoing this legislation, issued a broad and contemporaneous history
of the federal duty to timely dispose of the western lands, clarifying the primary disposal duty under
the “solemn compacts” (in part) as follows: “… it is the real interest of each and all the States in the
Union, and particularly of the new States, that the price of these lands shall be reduced and
graduated, and that after they have been offered for a certain number of years the refuse remaining
unsold shall be abandoned to the States and the machinery of our land system entirely withdrawn. It
can not be supposed the compacts intended that the United States should retain forever a title to
lands within the States which are of no value, and no doubt is entertained that the general interest
would be best promoted by surrendering such lands to the States.”
WHEREAS, the U.S. Supreme Court confirmed the federal government’s solemn trust obligation to
“extinguish title” to the public lands stating “the United States never held any municipal
sovereignty, jurisdiction or right of soil in and for the territory, of which Alabama or any of the new
States were formed, except for temporary purposes, and to execute the trusts created by the acts of
the Virginia and Georgia Legislatures, and the deeds of cession executed by them to the United
States, and the trust created by the treaty with the French Republic of the 30th of April, 1803,
ceding Louisiana." (Pollard v. Hagan, 1845);
WHEREAS, recently, the U.S. Supreme Court unanimously declared that Congress cannot
unilaterally change the “uniquely sovereign character of a State's admission” into the Union,
particularly “where virtually all of a State's public lands are at stake” (Hawaii v. OHA, 2009);
WHEREAS, even more recently in the Affordable Care Act decision, the U.S. Supreme Court
admonished “The Framers thus ensured that powers which ‘in the ordinary course of affairs,
concern the lives, liberties, and properties of the people’ were held by governments more local and
more accountable than a distant federal bureaucracy” and that “The independent power of the States
also serves as a check on the power of the Federal Government: ‘By denying any one government
complete jurisdiction over all the concerns of public life, federalism protects the liberty of the
individual from arbitrary power.’” (NATIONAL FEDERATION OF INDEPENDENT BUSINESS
ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT, No. 11–393. Argued March 26, 27, 28, 2012—Decided June 28, 2012);
WHEREAS, in this same decision, the U.S. Supreme Court clarified that the independent power of
the States to check arbitrary federal power is found only in acting like “separate and independent
sovereigns” as follows: “In the typical case we look to the States to defend their prerogatives by
adopting ‘the simple expedient of not yielding’ to federal blandishments when they do not want to
embrace the federal policies as their own. The States are separate and independent sovereigns.
Sometimes they have to act like it.”
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4. WHEREAS, in the 2012 legislative session, the Utah legislature passed overwhelmingly with
bipartisan support, and the Governor of Utah signed, HB148 Transfer of Public Lands Act to
establish the framework for the federal government to transfer to the State of Utah its public lands - excluding all national parks, national monuments (save one), and all congressionally designated
wilderness areas -- on or before December 31, 2014;
WHEREAS, the State of Utah is actively engaged in the process of creating a Utah Public Lands
Commission to analyze, prepare for, and negotiate with the federal government the orderly and
timely transfer of its public lands to the State;
WHEREAS, other Western States have introduced, or are preparing to introduce, legislation similar
to the Utah Transfer of Public Lands Act;
NOW, THEREFORE, BE IT RESOLVED that, in the best interests of the nation, and of the
affected Western States, and in honor of the solemn compacts exacted by the original 13 States,
which the federal government has already honored to all States east of Colorado (and Hawaii), the
State of [___________] urges Congress, the President and the federal agencies and administration,
in the most strenuous manner, to immediately engage in good faith communication, cooperation,
coordination, and consultation with Utah, and each other willing Western State, regarding the
timely conveyance of federal public lands directly to these States.
BE IT FURTHER RESOLVED that the State of [__________] urges our U.S. Representatives and
U.S. Senators, and all executive officers of this State, to exert their full powers to cooperate and
assist Utah and the other Western States, their congressional delegations, executive officers and
legislatures, in compelling the Congress to timely dispose of the such public lands to Utah and each
willing Western State, as their legislatures may designate.
BE IT FURTHER RESOLVED that the State of [______________] pledges its support to Utah and
other Western States for the timely transfer of such public lands as they may designate and
expresses is utmost encouragement to the governors, attorneys general, other executive officers,
legislatures, and citizens of these afflicted Western States in their valiant and nationally imperative
efforts to responsibly unleash the trillions of dollars of abundant resources locked up on federally
controlled lands, and with them American independence and ingenuity, as the only solution big
enough to realistically and sustainably resolve national unemployment, deficits, debts, unfunded
obligations and environmental degradation.
FOR MORE INFORMATION CONTACT:
Rep. Ken Ivory (UT)
801.694.8380
kivory@le.utah.gov
voteivory@gmail.com
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