One person’s joke—

The Jon Ralston column Brendan references can be read here:

Well known Nevada journalist Jon Ralston attacked Nevada Senate candidate Victoria Seaman, a Clark County Republican, for being a supporter of the “unconstitutional” Cliven Bundy. Seaman, seeking the seat in Senate District 6, was recognized as one of the top defenders of economic freedom who opposed the Sandoval commerce tax at the last Nevada Legislature. She also supported Assembly Bill 408, which would have declared the sheriffs of unincorporated counties the primary law enforcement officers, and would have required U.S. Bureau of Land Management and Forest Service officers to check in with them before acting.

Ralston is correct that the Legislative Counsel Bureau issued an opinion that AB 408 would not pass court review, but the LCB staffers are not judges. The public lands movement felt it had the right to pass this legislation and defend it in the courts. The moderates in the legislature got weak knees because of the LCB ruling and gutted the bill by amendment, forcing Seaman and the other sponsors to withdraw it.

Ralston also cites the “enabling clause” statutes as proof that the public lands movement, which is much bigger than Cliven Bundy, make Nevada a “joke.” Ralston believes these statutes, which nearly every territory that is in the process of becoming a state passes, giving the federal government “dominion” over its lands, is the last word that gives the federal government absolute permanent control of the public lands in the states. The federal government sold off nearly 100 percent of the land in the territories admitted as states east of the Mississippi, but chose to keep the bulk of the land in states west of the Mississippi to itself. For Ralston, this inequity has no enforceable remedy for Nevada and the other Sagebrush Rebellion states.

The American Lands Council (ALC) and the State of Utah have an alternative to Ralston’s narrow view of the rights of states to control their land. The U.S. Supreme Court has interpreted the Constitution to mean every state is admitted on an “equal footing” to the other states. The federal government has a constitutional duty to guarantee each state a Republican form of government. The Court has ruled in a half dozen cases that there is a “fundamental principle of equal sovereignty” among the states. The Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.”

The enabling acts that Ralston cites are simply quit claim deeds that allow the federal government to take control of the territorial lands in order to sell them off and cede control to the states. The historical record shows that some of the states East of the Mississippi had to pressure the Federal government to dispose of the lands because the Feds were dragging the process out for decades. But force them to comply and cede the lands back they did. It is only the Western states that have failed for so long to get their lands back. All the Eastern states passed enabling statutes, but they still got control of their land as they became states. By the way, California and Oregon never passed enabling statutes.

The ALC and the State of Utah by its 2012 Transfer of Public Lands Act legislation have a solid constitutional argument that the enabling acts were a compact between the states and the federal government to assure an orderly transition from territory to statehood resulting in full control of the lands within the states by the state legislatures.

Nevada’s public lands movement has seen significant victories in the federal courts, most notably the Hague families suit in the U.S. Court of Claims. It is presumptive of Ralston to call the movement an unconstitutional joke.