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Op-ed: Lands transfer to states? It would take another Dred Scott decision

Published January 30, 2016 3:00 pm
This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The state of Utah seems to be heading to the courtroom to test its argument that the U.S. government's ownership of large tracts of land violates the U.S. Constitution. As the Tribune has reported, it has had a hard time finding a legal expert to agree with it.

Last year, it paid several hundred thousand dollars to a New Orleans law firm to study the subject. The firm's somewhat coy conclusion to its 146-page analysis was that there was "credible support" for theories that "have value as the basis for claims in litigation."

Curiously, the report utterly neglected the one Supreme Court decision that really does support the state's position — its infamous ruling in the Dred Scott case in 1857.

Utah's argument turns on the interpretation to be given to the so-called property clause, which gives the U.S. Congress the power to "dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." The U.S. Supreme Court has applied the property clause in many decisions over the last two centuries. With one major exception, the court has routinely spoken of that clause as giving Congress power over public lands "without limitations."

The exception, Dred Scott, was decided in 1857, when the national debate over slavery had intensified. Slavery's defenders feared that the property clause gave Congress a path to legislate limits on and eventually achieve a peaceful end to slavery, by prohibiting its expansion into new states as they were admitted into the Union.

The court majority in that case capitulated to the slavers and construed the property clause in a way the court had never done in its previous property clause decisions. It held that it applied only to lands held by the United States in 1787, which were all east of the Mississippi River. Its ruling deprived Congress of the ability to legislate a political solution to the slavery dilemma, and made the bloody Civil War inevitable.

Dred Scott's narrow interpretation of the property clause has never been overruled. But it has been ignored. Yet, Utah now seems poised to resurrect the principle it stands for — that Congress's power over the public lands is very limited. The ultimate result would be to stifle healthy political debates over public land policy and allow unelected judges to determine the extent to which the national government can own and manage public lands.

Like many Americans, I have a number of complaints about how the nation's public lands are currently managed. But I also have deep respect for the wisdom of having public land policy set by our elected officials, guided by robust political discussions — just as the framers of the property clause intended.

I will concede that the Clause gives the Congress authority to transfer ownership of places like the Malheur National Wildlife Refuge — or even Yosemite or Yellowstone, for that matter — to states or ranchers or oil companies. I would oppose such measures, for I think it would make us poorer as a nation. Still, if a majority of the people supports and persuades our Congress and President to get rid of the public lands, well, that's how our Constitution is supposed to work.

But unless the Supreme Court repeats its Dred Scott mistake, that is not a matter to be decided by unelected judges. Nor is it a matter to be decided by Utah or any other state. And it is certainly not a matter for a small band of armed individuals to decide.

John D. Leshy is a Distinguished Professor Emeritus at the University of California Hastings College of the Law. From 1993 to 2001, he was the Solicitor of the U.S. Department of the Interior. He is currently writing a political history of America's public lands.






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