HISTORICAL BACKGROUND - PART ONE
The Equal Sovereignty Principle and the Equal Footing Doctrine, together with the legal and historical precedent discussed below, conclude that the federal government must treat all States as equal. Indeed, Utah’s enabling act promised that she would be admitted on “an equal footing with the original States.” It was against the historical background of equal treatment that Congress and Utah engaged in the admission process, and documented an understanding that the United States would continue the timely disposal of the public lands within Utah’s borders, just as the United States had always done in previously admitted States with public lands. In fact, however, Congress breached this understanding. As a result of that breach, Utah has been treated as decidedly less than an equal sovereign, a result, as the Supreme Court recently reaffirmed in Shelby, the Constitution does not allow.
It has been said that the law is philosophy applied to history. The law we have been asked to analyze is uniquely informed by early American history. Indeed, it is not possible to understand the law’s meaning and scope without a full understanding of applicable American history, even that history predating the adoption of our Constitution.
We shall show that the historical context indicates that the equal sovereignty of the States was a foundational principle of our Nation, and that dominion over land was a critical component of that equal sovereignty. When the original Union was being formed under the Articles of Confederation, Maryland insisted that all the landed States should cede their Western territories so they could be sold by the United States to pay the Revolutionary War debt “and be settled and formed into distinct republican States which shall become members of the Federal Union and have the same rights of sovereignty, freedom and independence as the other States.”
Each of the original thirteen States, and the next three that entered the Union — Vermont, Kentucky, and Tennessee — received all the vacant, unappropriated Crown lands upon their admission to the Union. States admitted thereafter with public lands obtained dominion over the land within their borders through federal public land policy that stimulated disposal and settlement of that land.
All States understood that the federal government would temporarily hold public lands for so long as it took to sell them to create a common fund to pay the public debt. As the Supreme Court explained in Pollard v. Hagan:
This right originated in voluntary surrenders, made by several of the old states, of their waste and unappropriated lands, to the United States, under a resolution of the old Congress, of the 6th of September, 1780, recommending such surrender and cession, to aid in paying the public debt, incurred by the war of the Revolution. The object of all the parties to these contracts of cession, was to convert the land into money for the payment of the debt, and to erect new states over the territory thus ceded; and as soon as these purposes could be accomplished, the power of the United States over these lands, as property, was to cease (emphasis added).
In short, the historical record shows that when Utah joined the Union — when the United States admitted Utah into the Union and Utah agreed to become a State within the United States – the United States and Utah understood that the United States would, within a reasonable time, dispose of the public lands that it then owned, and admit Utah to the Union with “the same rights of sovereignty, freedom and independence as the other States.” The text of the documents admitting Utah as a State cannot properly be interpreted divorced from that historical context.
As we shall see, Congress promised the regular and prompt disposal of public lands under its control many times over the course of the history of the United States. Congress delivered on this promise for nearly two hundred years, actively promoting the settlement, transfer, and development of public lands in State after State. Then, in 1976 Congress reversed its longstanding promise of orderly disposition with the passage of FLPMA. Because Congress breached this understanding, the United States owns very little land east of Colorado and New Mexico but the majority of the land from those points west. If the eastern States had explicitly determined to enjoy disproportionate political and commercial power compared to the western States as was unsuccessfully proposed by Elbridge Gerry at the Constitutional Convention, they would have done exactly what has been done. That result was rejected as unfair and unacceptable by the Framers, and the history and jurisprudence discussed below suggest that the Court would reject it as unfair and unacceptable today.
Now, let us turn to the historical and legal background that led to this situation.
1. The Nature of Sovereignty
Sovereignty, in the conduct of collective human activity, is the right of a people or a government to conduct its internal affairs in accordance with its discrete rulemaking mechanisms. The “sovereign,” whether a monarch, sultan, dictator, or nation-state, has the power to: make laws for the governance of a people; impose taxes; enforce laws; enter into agreements and treaties with other sovereign peoples and states; conduct national trade; raise armies and navies; act on behalf of the state in relation to other sovereigns; conduct national and internal defense for the protection of the state and its people; and acquire, own and dispose of land in the name of the sovereign by right of purchase, conquest or discovery.
A national government must act on behalf of the population it governs in its relations with foreign powers and as an internal organizing force for the management of a society. It is invested with independence and the power to act for a people. The incidents of sovereignty, therefore, are all powers necessary for the advancement of a nation. Government’s overarching jurisdiction invests it with coercive power sufficient for the protection of its citizens, though our government is founded on the principle that its legitimate purpose is the protection of individual liberty.
2. Sovereign Acquisition of Territory
a) Acquisition by Conquest
Until the rise of empire, collective human affairs were tribal, ethnic, and relatively small. Early annals of tribal conflict indicate that tribes or city-states engaged in wars that resulted in conquest and the concomitant acquisition of the land of those they conquered. With the rise of empire began the collection and organization of large multi-ethnic populations and the acquisition of huge territories. No one questioned the legitimacy of territorial acquisition by right of conquest, and no legal mechanism existed for contesting the seizure of land through force. Imperial expansion, then, was largely carried out by conquest among competing empires.
b) Acquisition by Discovery
Later, during the Age of Discovery, a theory arose that was largely accepted by the leading imperial powers: acquisition by right of discovery. The Treaty of Westphalia in 1648 began the international codification of what had previously been an assumption: that nations can engage in territorial expansion by right of discovery.
In Johnson and Graham’s Lessee v. M’Intosh,16 Chief Justice John Marshall wrote:
But as [the European Powers] were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession.17
c) Title to Unoccupied Colonial Lands Vested in the Crown by Discovery
Thus did the British Empire lay claim to much of North America and exercised its sovereign privilege by asserting title to all “unoccupied” land.
According to the theory of the British Constitution, all vacant lands are vested in the Crown, as representing the nation, and the exclusive power to grant them is admitted to reside in the Crown as a branch of the royal prerogative [sovereignty].
The British Empire successively claimed all lands described in the royal charters that established its colonies in Virginia, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Georgia, New Hampshire, New York, Connecticut, Rhode Island, New Jersey and Massachusetts by right of Crown sovereignty.
It is a settled doctrine with us that all valid individual title to land within the United States is derived from grants from or under the authority of the governments of England, Sweden, Holland, France, Spain, Russia, Mexico, the chartered and crown colonies or the Government of the United States and the several States of the Union.
The English possessions in America were claimed by right of discovery. Having been discovered by the subjects of the King of England and taken possession of same in his name, by his authority or with his assent, they were held by the King as the representative of and in trust for the nation; all vacant lands, and the exclusive power to grant them, were vested in him. (The Public Domain, It’s History; Thomas Donaldson: Report to House of Representatives of the United States of America; Public Lands Commission, 1884, page 158. Hereafter “Donaldson”)
3. Nature of Land Ownership in Colonial North America
a) Socage and the Sovereignty of the Crown Over Land
Under the charter of King James I, the lands of the first and second colonies of Virginia were to be held by the mildest form of feudal tenure, “free and common socage.” Under this regime, title to land continued to rest in the sovereign and those granted tenure received it subject to the rendering of duties to the landholding lord (the Crown of England, in most cases). Blackstone described it as follows:
Socage, in its most general and extensive signification, seems to denote a tenure by any certain or determinate service. And in this sense it is by our ancient writers constantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain.
Landholding in the colonies under “socage” was a lesser form of right than that known today. It was not quite fee simple ownership, in that it confirmed the sovereign rights of the Crown, and the Crown’s sovereign ownership of the land. “The usual tenure of the colonial grants, after Raleigh’s first one, was free and common socage.” This confirmed the primacy of the Crown and its ownership of land, occupied and otherwise, as an incident of its sovereignty.
b) Abolishment of Feudal Ownership
This Northwest Ordinance of 1787, adopted by the Confederation Congress, was the first general legislation in the United States on the subject of real property and it changed the nature of land ownership throughout the now free States. After the American Revolution, most of the States abolished all forms of feudal ownership, including free and common socage, and the Northwest Ordinance abolished the practice as a matter of national policy.
In 1774, the Royal Colonies met in convention, referred to as the “Continental Congress,” to discuss their joint grievances with the Crown. The convention drafted documents of protest at the colonies’ treatment at the hands of the Crown. When the colonists’ remonstrances were unsuccessful, a second convention was called and representatives of all the colonies attended.
The Second Continental Congress served as a convention of colonies – soon to be independent States – to seek ways to act jointly with respect to issues of common concern. It was a conclave of separate and independent colonies intended to move those colonies to act in concert with one another with respect to colonial relations with the Crown. It convened in the summer of 1775, some months after armed hostilities signaled that the American war for independence had begun. Its delegates, again chosen by their respective colonies, represented the separate interests of their respective colonies.
On May 6, 1776, Virginia declared its independence from the Crown, and the other colonies followed on July 4, 1776. By these acts, the colonies effectively became free and independent nations inheriting all sovereign rights and powers of the Crown within their borders.
In June 1776, the Convention of Virginia formally declared, that Virginia was a free, sovereign, and independent state; and on the 4th of July, 1776, following, the United States, in Congress assembled, declared the Thirteen United Colonies free and independent states; and that as such, they had full power to levy war, conclude peace, etc. I consider this as a declaration, not that the United Colonies jointly, in a collective capacity, were independent states, etc. but that each of them had a right to govern itself by its own authority, and its own laws, without any control from any other power upon earth.
5. The Original States Succeeded to Ownership of all Crown Land
The term “state” -- meaning “a political body, or body politic; the whole body of people united under one government”31 -- was purposefully chosen by the Founders to signify that each colony was a sovereign body enjoying all powers of sovereignty inhering in nation-states. The term “nation-state” was a topic of considerable discussion in the 18th Century and enjoyed broad intellectual and political currency. It was intended to describe a discrete, independent government exercising exclusive jurisdiction over a defined geographical area. The new “states” adopted the title to describe what they intended as the nature of the newly sovereign States. Each State operated (and still operates) independently of every other State. Each established and maintained separate court systems, legislatures, executives, regulatory schemes, systems of taxation and governance, criminal and civil laws, voting qualifications, and so forth.
The separate and complete sovereignty of the original States was sufficiently important to the founding generation that they enshrined it in their first formal treaty, the Articles of Confederation, Article II. The States’ succession to the sovereignty of the Crown has repeatedly been reaffirmed by the Court. As independent sovereigns, the States established separate governments; adopted State constitutions; enacted criminal and civil statutes; imposed taxes and imposts; established and maintained courts; and succeeded to all other incidents and prerogatives of the sovereignty previously enjoyed by the Crown in North America, including ownership of all vacant and unappropriated land within their borders.
Each of the original thirteen States – and the three that followed, Vermont, Kentucky and Tennessee – succeeded to ownership of all vacant, unappropriated Crown lands and disposed of same over time for their own part thereafter.
6. Conflicting Western Land Claims
Both before and after independence, the States competed with one another in commerce and trade, foreign policy, and territory. The States had their own monetary systems and placed tariffs on the trade of goods between one another. Each raised its own militia and maintained its own defenses.
No area of controversy was more heated than the landed States’ claims to the “Western Lands,” consisting mainly of what were referred to as “vast waste lands” east of the Mississippi River and south of Canada. Of the thirteen colonies, six had carefully defined western borders and no claims to any western lands, while seven asserted colorable claims to the western lands. Three – Virginia, North Carolina and Georgia -- laid claim to land extending to the Pacific Ocean. Virginia, the first colony, had vast land claims -- as far north as present-day Canada and as far west as present day California -- and jealously guarded those claims. The map below illustrates various conflicting claims east of the Mississippi and cessions to the Federal government circa 1782 to 1802.
In 1774, when the First Continental Congress was assembled, the continent was rife with competing claims to western lands and sometimes pointed debate among the colonies with respect to the defensibility of those claims. The conflict was driven, at least in part, by an appreciation of the tremendous wealth the lands represented. The conflicts also encouraged separatist movements that threatened the unity and strength of the not yet fully united colonies. In addition to the problems created by the conflicting claims among the “landed” States to western lands, the very fact that these claims were made created problems between the “landed States,” on the one hand, and the “landlocked States” on the other. Maryland was the first to express its great concern that the landlocked States would be politically and economically consumed by their larger neighbors. The conflicting interests related to the western lands seemed insurmountable. Just when the colonies most needed unity, they became paralyzed over an impasse with respect to the western lands issue. We describe the Western Lands Impasse and its resolution in detail because it is critical to the proper understanding of the Equal Sovereignty Principle, the Equal Footing Doctrine, and the Property Clause.
(End of the Historical Background Part 1 excerpt of the Legal Analysis)
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