Report of the Public Lands Subcommittee
Western Attorneys General Litigation Action Committee
Conference of Western Attorneys General

The Honorable Peter Michael
Attorney General
State of Wyoming
Chair
Public Lands Subcommittee
Western Attorneys General Litigation Action Committee

The Honorable Ellen F. Rosenblum
Attorney General
State of Oregon
Chair
Conference of Western Attorneys General

Christopher D. Coppin
Legal Director
Conference of Western Attorneys General
1300 I Street
Sacramento, California 95814
Ccoppin@cwagweb.org
916-322-6431

 INTRODUCTION
In August 2014, a Public Lands Subcommittee of the Western Attorneys
General Litigation Action Committee of the Conference of Western Attorneys
General (CWAG) was formed by CWAG Chair, Idaho Attorney General
Lawrence Wasden, to examine the legal issues regarding federal land
ownership in the western states. The Subcommittee was chaired by Wyoming
Attorney General Peter Michael and included attorneys from the Attorney
General Offices of Alaska, Arizona, Colorado, Idaho, Montana, Nevada, New
Mexico, Oregon, Utah and Washington. CWAG Legal Director, Chris Coppin,
served as the CWAG staff person assigned to assist the Subcommittee in its
work.
The Subcommittee held ten conference calls to discuss the work of the
Subcommittee and individual Subcommittee members held several conference
calls with other Subcommittee members while working on sections of this
Paper.
The Subcommittee did not address whether a particular state’s enabling
act would legally require the federal government to transfer public lands to a
state, as each state’s enabling act and the circumstances surrounding the
admission of individual states into the Union are unique. The Subcommittee
left that task of analysis to each member state.
On July 19, 2016, the membership of CWAG approved the adoption of
this Paper by resolution at its annual business meeting in Sun Valley, Idaho,
by vote of 11 – 1.

i

 TABLE OF CONTENTS
EXECUTIVE SUMMARY

1

DISCUSSION

4

Question 1: Does the Property Clause in the United States
Constitution, Article IV, Section 3, Clause 2, empower Congress
to retain public lands in federal ownership indefinitely?

4

I. Supreme Court Construction of Property Clause
II. Conclusions

5
16

QUESTION 2: Is the ownership of the public lands by the
federal government limited to those purposes set forth in the
Enclave Clause, United States Constitution Article I, Section 8?
Or, to ask the question another way, is there a reasonable legal
basis for a claim that the Enclave Clause precludes federal
purchase, ownership, and control for other purposes?

17

I. Development of the Meaning and Effect of the Enclave Clause
by the Courts
II. Conclusions

18
21

Question 3: Is there a reasonable legal basis for a claim that the
equal footing doctrine precludes federal purchase, ownership, and
control of public lands?

22

I.
II.
III.
IV.
V.
VI.
VII.

23
25
27
31
42
45
47

Historical Background
Early Case Law
Pollard’s Lessee v. Hagan
Equal Sovereignty
Economic Equality
Political Equality
Conclusions

Question 4: Do the respective state Enabling Acts (or Acts of
Admission) require the United States to divest itself of ownership
of the federal lands?

ii

48

 EXECUTIVE SUMMARY
In August 2014, a Subcommittee of the Conference of Western Attorneys
General was formed to examine the issues regarding federal land ownership
in, and transfer to, the western states. Under the chairmanship of Wyoming
Attorney General Peter Michael, the Subcommittee on Public Lands included
attorneys from Attorney General Offices of Idaho, Montana, Nevada, Utah,
New Mexico, Washington, Colorado, Oregon, Arizona and Alaska.
The express mission of the Subcommittee on Public Lands was to
produce, through directed and concerted objective legal research and analysis,
a document containing detailed, organized, and comprehensive commentary on
legal theories for and against the continuation of substantial proprietary
ownership by the United States Government of land in the western United
States of America. Each member of the subcommittee reserved the right to
review and comment on any and all issues identified and also to write any
minority or supplemental report which such member might wish to produce.
The broad question addressed by the Subcommittee was whether the
federal government was legally obligated to sell or transfer the public lands
within a given state to that state. The Subcommittee jointly examined and
analyzed a number of legal arguments derived from: (1) the Property Clause Article IV, Section 3, Clause 2 of the United States Constitution; (2) the
Enclave Clause - Article I, Section 8, Clause 17 of the United States
Constitution and (3) the equal footing doctrine announced by the Court in
Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845). In particular, the
Subcommittee examined the following legal arguments, identified below with
separate bullets, that litigants or other advocates have advanced to support
the theory that the United States lacks authority to retain ownership of certain
public lands:
Proposed Theories for Transfer Based on the Property Clause
• Lands that the United States received by treaty or other acquisition may
only be held in trust for the creation of future states and cannot be retained for
federal purposes. Contra United States v. Gardner, 107 F.3d 1314, 1317 (9th
Cir. 1997) (theory presented by litigant in Gardner based on language in
Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845)).
• The Property Clause is a temporary ownership provision only, and Congress
has power to regulate only those lands that were within the United States at
1

 the time the Constitution was ratified. Contra United States v. Vogler, 859 F.2d
638, 640-41 (9th Cir. 1988) (theory argued in Vogler based on language from
Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 436-38 (1856)).
As a result of its research, the Subcommittee observes that to date, the
United States Supreme Court consistently has held that: (1) public lands fall
within the purview of the Property Clause; (2) the authority of the United
States under the Property Clause has no limitations; (3) the Property Clause
vests the United States with exclusive authority to decide whether “to dispose
of” or sell public lands; and (4) under the Property Clause, the United States
may withhold public lands from sale. No Supreme Court case has directly
addressed the question of whether the Property Clause empowers the federal
government to retain ownership of public lands indefinitely. In Stearns v.
Minnesota, 179 U.S. 223 (1900) and Light v. United States, 220 U.S. 523 (1911),
the Supreme Court explicitly stated that the United States may withhold
public lands from sale indefinitely, but in both cases the statement about
indefinite retention arguably was dicta. The readers of this Paper must draw
their own conclusions as to whether the Supreme Court likely would follow
Stearns and Light if squarely presented with the indefinite ownership
question.
Proposed Theory for Transfer Based on the Enclave Clause
• The United States may hold and regulate land only to further one of the
enumerated powers granted to Congress in Article I, Section 8 of the United
States Constitution. Contra United States v. Vogler, 859 F.2d 638, 641 (9th Cir.
1988).
As a result of its research, the Subcommittee observes that the weight of
relevant decisions by the United States Supreme Court is that ownership of
the public lands by the federal government is not limited to those purposes set
forth in the Enclave Clause.
Proposed Theories for Transfer Based on the Equal Footing Doctrine
• The high percentage of federal land ownership in the western states violates
the equal footing doctrine because the percentage of federal land ownership in
the western states far exceeds the percentage of land ownership in the original
thirteen states. Contra United States v. Gardner, 107 F.3d 1314, 1318 (9th Cir.
1997).
2

 • Under the equal footing doctrine, title to the public lands passed to each of
the western states when they were admitted to the Union. Contra United
States v. Gardner, 903 F. Supp. 1394, 1400 (D. Nev. 1994).
• Title to all unappropriated lands was automatically transferred from the
federal government to state governments when the western states were
admitted to the Union because the original thirteen states obtained ownership
of unappropriated dry land as an attribute of sovereignty at the time of the
Revolution. Contra United States v. Nye Cnty., Nev., 920 F. Supp. 1108, 1114
(D. Nev. 1996).
• Under the equal sovereignty principle, the United States cannot indefinitely
retain ownership of the public lands. John Howard et. al, Legal Analysis of the
Legal Consulting Services Team for the Utah Commission for the Stewardship
of Public Lands, 54-72 (2015) (White Paper).1
As a result of its research, the Subcommittee observes that, contrary to
arguments that were made against the United States in the Nye County and
Gardner cases, the United States Supreme Court did not suggest in its 1845
Pollard’s Lessee decision establishing the equal footing doctrine that retention
of public lands after statehood would violate a state’s entitlement to admission
upon equal footing with the original states. Also, the federal courts that have
addressed the equal footing argument against continued federal ownership
have specifically held that the equal footing doctrine established in Pollard’s
Lessee and applied in some other cases does not apply to public domain lands.
The Supreme Court has had ample opportunity to apply equal sovereignty
principles in addressing public lands ownership issues, but has repeatedly
distinguished property issues as independent from the “limiting or qualifying
of political rights and obligations” that may trigger additional scrutiny under
such principles.
With the presentation of this Paper, the Subcommittee submits that it
has, to the best of its ability, discharged its assignment to produce, through
directed and concerted objective legal research and analysis, a document
containing detailed, organized, and comprehensive commentary on legal
theories for and against the continuation of substantial proprietary ownership
by the United States Government of land in the western United States of
America.
1

Available online at: http://le.utah.gov/interim/2015/pdf/00005590.pdf (last visited June 30, 2016).
3

 DISCUSSION
Question 1: Does the Property Clause in the United States
Constitution, Article IV, Section 3, Clause 2, empower Congress to
retain public lands in federal ownership indefinitely?
The United States Constitution created a federal government of
enumerated powers. Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 33-36 (1824).
Stated differently, if the Constitution does not grant a power to the federal
government, either expressly or by necessary implication, then it lacks that
power. House v. Mayes, 219 U.S. 270, 282 (1911). Powers not granted to the
federal government are reserved to the states. United States v. Cruikshank, 92
U.S. (2 Otto) 542, 551 (1875). Some who have advocated for mandatory federal
divestiture of public lands to western states have argued that, in particular
instances, Congress and a prospective state have agreed in enabling legislation
that the United States would at some point cede to the state ownership of
federal lands. See, e.g., Donald J. Kochan, Public Lands and the Federal
Government’s Compact-Based “Duty to Dispose”: A Case Study of Utah’s H.B.
148―The Transfer of Public Lands, 2013 BYU L. Rev. 1133 (2013). Such
commentators have also contended that no provision in the United States
Constitution enumerates a power under which the federal government can
continue to own and manage large tracts of land in the American West. See,
e.g., Robert G. Natelson, Federal Land Retention and the Constitution’s
Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005).
The Property Clause of the United States Constitution is relevant to both
arguments because some claim that it creates the enumerated power within
the Constitution that supports the continued ownership of such land by the
United States. The Property Clause also is suggested to be the supreme federal
law that implies that Congress and specific states intended the United States
to continue to indefinitely own federal lands within state boundaries, despite
what may be stated in statehood enabling legislation. Thus, for purposes of the
discussion below, the Property Clause should be seen as a potential defense
that the United States would raise in litigation brought by a state to force
divestiture of federal lands.

4

 I.

Supreme Court Construction of Property Clause

The Property Clause provides in part that "[t]he Congress shall have the
Power to dispose of and make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States …." U.S. Const., art.
IV, § 3, cl. 2. This language in the Property Clause vests Congress with two
related but distinct powers ― the power to manage property owned by the
federal government and the power to dispose of such property.
Because this Paper focuses on whether the United States may retain
certain public lands in federal ownership, questions regarding the authority of
the federal government to manage or regulate public lands are not within the
direct scope of this Paper. That said, there appears to be no dispute that
Congress has unlimited authority to manage and regulate, in the interim,
federal public lands. The United States Supreme Court addressed the breadth
of the federal government’s regulatory authority under the Property Clause in
Kleppe v. New Mexico, 426 U.S. 529 (1976). In Kleppe, the Supreme Court
addressed the constitutionality of the federal Wild Free-Roaming Horses and
Burros Act. Id. at 531. That Act protects wild horses and burros on public lands
owned by the United States from "capture, branding, harassment, or death."
16 U.S.C. § 1331. The State of New Mexico, through its livestock board and
director and under state law, had rounded-up and auctioned wild horses found
on federal land. Kleppe, 426 U.S. at 533-34. The State filed an anticipatory suit
seeking a declaratory determination that the federal act was unconstitutional
as an encroachment upon state sovereignty. Id. at 534.
The Supreme Court rejected the State's argument and, based on the
Property Clause, affirmed the power of Congress over public lands, including
animal life on those lands. Id. at 546. In so doing, the Supreme Court stated:
[A]ppellees have presented no support for their position that the
Clause grants Congress only the power to dispose of, to make
incidental rules regarding the use of, and to protect federal
property. This failure is hardly surprising, for the Clause, in broad
terms, gives Congress the power to determine what are “needful”
rules “respecting” the public lands. And while the furthest
reaches of the power granted by the Property Clause have
not yet been definitively resolved, we have repeatedly
observed that “[t]he power over the public land thus
entrusted to Congress is without limitations.”

5

 The decided cases have supported this expansive reading. It is the
Property Clause for instance, that provides the basis for governing
the Territories of the United States. And even over public land
within the States, “[t]he general Government doubtless has a
power over its own property analogous to the police power of the
several States, and the extent to which it may go in the exercise of
such power is measured by the exigencies of the particular case.
We have noted, for example, that the Property Clause gives
Congress the power over the public lands “to control their
occupancy and use, to protect them from trespass and injury, and
to prescribe the conditions upon which others may obtain
rights in them....” And we have approved legislation respecting
the public lands “[i]f it be found to be necessary, for the protection
of the public or of intending settlers [on the public lands].” In
short, Congress exercises the powers both of a proprietor
and of a legislature over the public domain. Although, the
Property Clause does not authorize “an exercise of a general
control over public policy in a State,” it does permit “an exercise
of the complete power which Congress has over particular
public property entrusted to it.” In our view, the “complete
power” that Congress has over public lands necessarily includes
the power to regulate and protect the wildlife living there.
Id. at 539-41 (citations omitted) (emphasis added).
While Kleppe appears to resolve any question regarding the scope of
Congress’s management authority over public lands, no Supreme Court case
definitively addresses whether the federal government may retain public lands
in federal ownership indefinitely. However, in other contexts relevant to this
discussion, the Supreme Court has addressed the scope of Congress’s authority
to dispose of lands under the Property Clause.
Historically, the Supreme Court has construed the Property Clause
broadly with respect to the authority of the United States to dispose of public
lands. See Robert B. Keiter & John C. Ruple, A Legal Analysis of the Transfer
of Public Lands Movement 1-2 (Wallace Stegner Center for Land Resources
and the Environment at the University of Utah S.J. Quinney College of Law,
October 27, 2014) [Stegner Center White Paper No. 2014-2]. Three Supreme
Court decisions from the late nineteenth century illustrate this point.

6

 In 1871, the Supreme Court explained that, under the Property Clause,
the power of the United States to dispose of public lands has no limitations.
Gibson v. Chouteau, 80 U.S. (13 Wall.) 92 (1871). Gibson involved the question
of whether a state statute of limitations could defeat the title of a grantee of
the United States. Regarding the scope of Congress’s authority under the
Property Clause, the Court explained:
With respect to the public domain, the Constitution vests in
Congress the power of disposition and of making all needful rules
and regulations. That power is subject to no limitations.
Congress has the absolute right to prescribe the times, the
conditions, and the mode of transferring this property, or
any part of it, and to designate the persons to whom the
transfer shall be made. No State legislation can interfere with
this right or embarrass its exercise; and to prevent the possibility
of any attempted interference with it, a provision has been usually
inserted in the compacts by which new States have been admitted
into the Union, that such interference with the primary disposal of
the soil of the United States shall never be made.
Gibson, 80 U.S. (13 Wall.) at 99.
Fifteen years later, the Supreme Court recognized that the federal
government’s power to dispose of public lands under the Property Clause is
exclusive. Van Brocklin v. Anderson, 117 U.S. 151 (1886). In Van Brocklin, the
Court addressed whether lands acquired by the United States by means of a
tax sale and later sold by the United States were subject to taxation by the
State of Tennessee while they were owned by the federal government.
Regarding the State’s taxing authority under such circumstances, the Court
explained:
Upon the admission of a state into the Union, the state doubtless
acquires general jurisdiction, civil and criminal, for the
preservation of public order, and the protection of persons and
property, throughout its limits, except where it has ceded exclusive
jurisdiction to the United States. The rights of local sovereignty,
including the title in lands held in trust for municipal uses, and in
the shores of navigable waters below high-water mark, vest in the
state, and not in the United States. But public and unoccupied
lands, to which the United States have acquired title, either
by deeds of cession from other states, or by treaty with a
7

 foreign country, congress, under the power conferred upon
it by the constitution, “to dispose of and make all needful
rules and regulations respecting the territory or other
property of the United States,” has the exclusive right to
control and dispose of, as it has with regard to other
property of the United States; and no state can interfere
with this right, or embarrass its exercise.
Van Brocklin, 117 U.S. at 167-68 (emphasis added) (citations omitted).
Eleven years after Van Brocklin was decided, the Supreme Court
confirmed that the power to dispose of public lands gives the United States
discretion to withhold public lands from sale. Camfield v. United States, 167
U.S. 518 (1897). The issue in Camfield involved the constitutionality of a
federal statute that prohibited a person with no right or title to the public lands
of the United States from erecting a fence around such lands. Although the
Court did not explicitly cite the Property Clause, it explained the authority of
the United States regarding the public lands as follows:
While the lands in question are all within the state of Colorado,
the government has, with respect to its own lands, the
rights of an ordinary proprietor, to maintain its possession
and to prosecute trespassers. It may deal with such lands
precisely as a private individual may deal with his farming
property. It may sell or withhold them from sale. It may
grant them in aid of railways or other public enterprises. It may
open them to pre-emption or homestead settlement, but it would
be recreant to its duties as trustee for the people of the United
States to permit any individual or private corporation to
monopolize them for private gain, and thereby practically drive
intending settlers from the market.
Camfield, 167 U.S. at 524 (emphasis added).
Viewed together, Gibson, Van Brocklin, and Camfield establish four
principles: (1) public lands fall within the purview of the Property Clause; (2)
the authority of the United States under the Property Clause has no
limitations; (3) the Property Clause vests the United States with exclusive
authority to decide whether “to dispose of” or sell public lands; and (4) under
the Property Clause, the United States may withhold public lands from sale.
Since 1900, the Court has reiterated these principles when explaining the
8

 nature and extent of the authority granted to the United States under the
Property Clause. See, e.g., Kleppe, 426 U.S. at 539; Alabama v. Texas, 347 U.S.
272, 273 (1954) (per curiam); United States v. City & Cnty. of San Francisco,
310 U.S. 16, 29 (1940); United States v. Midwest Oil Co., 236 U.S. 459, 474-75
(1915).
In Gibson, Van Brocklin, and Camfield, the Supreme Court did not
explicitly address whether the Property Clause empowers the United States to
indefinitely withhold public lands from disposal or sale. But in Gibson, the
Court explained that the authority of the United States under the Property
Clause has “no limitations,” and that the United States has “the absolute right
to prescribe the times, the conditions, and the mode of transferring this
property, or any part of it, and to designate the persons to whom the transfer
shall be made.” Gibson, 80 U.S. (13 Wall.) at 99. Presumably, the phrase “no
limitations” includes limitations on how long the United States may retain
public lands, and the right to prescribe the time of transfer includes the
authority to retain public lands indefinitely. It thus appears as though the
Court has implicitly recognized that the Property Clause authorizes the United
States to retain public lands indefinitely.
In two cases decided in the early twentieth century, the Supreme Court
explicitly recognized that the United States may withhold public lands from
sale indefinitely. See Stearns v. Minnesota, 179 U.S. 223 (1900); Light v. United
States, 220 U.S. 523 (1911). In both cases, however, the Court’s statement
about retaining ownership of public lands indefinitely appears in dicta.
In Stearns, a number of railroad companies and at least one Minnesota
county official appealed from a decision by the Supreme Court of Minnesota.
The issue before the United States Supreme Court was whether, under state
law, a certain classification of real estate belonging to railroad companies
should be taxed according to the value provided by the state constitution or
subject to payment in lieu of taxes as provided by state statute. Stearns, 179
U.S. at 223. The lands at issue had been transferred from the United States to
the State of Minnesota as trustee, and then from the State to railroad
companies to construct railroad lines. Stearns, 179 U.S. at 224-29.
In addressing a concern expressed by the lower court about taxation of
lands that have been transferred from public to private ownership, the Court
explained:

9

 It is true that Congress might act so as in effect to keep withdrawn
a large area of the state from taxation. Under the reservation
in the act of admission and the acceptance thereof by the
state of Minnesota the right of Congress to determine the
disposition of public lands within that state was reserved,
and, according to the decision in Van Brocklin v. Tennessee, 117 U.
S. 151 … lands belonging to the United States are exempt from
taxation by the state. So that if Congress should determine
that the great body of public lands within the state of
Minnesota should be reserved from sale for an indefinite
period it might do so, …. It had the power to withdraw all the
public lands in Minnesota from private entry or public grant, and,
exercising that power, it might prevent the state of Minnesota from
taxing a large area of its lands, but no such possibility of wrong
conduct on the part of Congress can enter into the consideration of
this question.
Stearns, 179 U.S. at 242-43 (emphasis added) (part of citation omitted).
In Stearns, the Supreme Court noted that, during the process of
admitting Minnesota to the Union, the United States reserved the right to
dispose of public lands located in Minnesota, and the people of Minnesota had
agreed to that reservation of right. Id. To reach this conclusion, the Court
relied on the enabling act for the Territory of Minnesota and article II, section
3 of the Minnesota Constitution. Id., at 243-44. In the enabling act, Congress
required the people of Minnesota to agree that the State “shall never interfere
with the primary disposal of the soil within [the State of Minnesota] by the
United States, or with any regulations Congress may find necessary for
securing the title in said soil to bona fide purchasers thereof ….” Id. (citation
omitted). The people of Minnesota undertook this agreement in article II,
section 3 of the Minnesota Constitution.2 That section adopted verbatim the
preceding language from the enabling act. Stearns, 179 U.S. at 244 (citation
omitted).
The Supreme Court characterized the enabling act and the Minnesota
constitutional provision as “simply an agreement as to property between a
The original Minnesota Constitution was adopted on October 13, 1857. It was
generally revised effective November 5, 1974. The revised Minnesota Constitution
does not include the “never interfere” language set forth in the article II, section 3 of
the original Constitution.
2

10

 state and the nation.” Stearns, 179 U.S. at 245. The Court then explained the
consequences of that agreement for the State of Minnesota with respect to the
public lands within the state:
[T]he state expressly agreed that no tax should be imposed on
lands belonging to the United States, that it should never
interfere with the primary disposal of the soil within the
state by the United States, or with any regulations Congress
might find necessary for securing the soil to bona fide purchasers
thereof. These provisions are not to be construed narrowly
or technically, but as expressing a consent on the part of
the state to the terms proposed by Congress; and among
these terms were that the full control of the disposition of
the lands of the United States should be free from state
action. Whether Congress should sell or donate; what terms it
should impose upon the sale or donation; what arrangements it
should make for securing title to the beneficiaries-were all matters
withdrawn from state interference by the terms of the enabling act
and the Constitution.
Stearns, 179 U.S. at 250 (emphasis added). Finally, the Court reiterated that
“the provisions of the enabling act and the state Constitution … secure to the
United States full control of the disposition of the public lands within the limits
of the state.” Stearns, 179 U.S. at 250.
For some western states, Stearns may render moot any argument that
the Property Clause does not empower the United States to retain public lands
indefinitely. The opinion in Stearns provides that: (1) during the process of
being admitted to the Union, a state may consent to the United States having
full control over the disposition of public lands with the state; and (2) if a state
agreed that the United States would have full control over the disposition of
public lands within the state, the United States may withhold those lands from
sale indefinitely. The question of whether a particular state consented to such
an arrangement with the United States will depend upon the specific facts and
circumstances surrounding that state’s admission into the Union.
That said, in addressing whether the United States may retain public
lands within a state indefinitely, Stearns may lack precedential value for two
reasons.

11

 First, the statement about the United States having the authority to
withhold public lands from sale indefinitely appears in a hypothetical in a part
of the analysis that appears to be dicta. Generally speaking, the Supreme
Court is not bound by dicta on an issue that was not fully debated in the prior
case. Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006). It is not clear
whether the parties fully debated the indefinite land retention issue in Stearns.
Second, Stearns arguably is a plurality opinion.3 Generally speaking, a
plurality opinion has “questionable precedential value” when a majority of the
Justices disagreed with the rationale of the plurality. Seminole Tribe of Florida
v. Florida, 517 U.S. 44, 66 (1996).
Eleven years after Stearns was decided, the Court cited Stearns for the
proposition that the United States may withhold public lands from sale
indefinitely. Light, 220 U.S. at 536 (citing Stearns, 179 U.S. 243). The Court
affirmed Stearns’s analysis in the context of explaining the extent of the federal
government’s authority under the Property Clause. Id.
In Light, a rancher from Colorado challenged a federal court injunction
enjoining him from running cattle on public lands. Addressing the authority
Congress to “withdraw large bodies of land from settlement without the
consent of the state where it is located,” the Court explained:
[T]he nation is an owner, and has made Congress the principal
agent to dispose of its property …. Congress is the body to which
is given the power to determine the conditions upon which the
public lands shall be disposed of. The government has, with respect
to its own lands, the rights of an ordinary proprietor to maintain
its possession and to prosecute trespassers. It may deal with such
lands precisely as a private individual may deal with his farming
property. It may sell or withhold them from sale. And if it may
withhold from sale and settlement, it may also, as an owner, object
to its property being used for grazing purposes, for the government
is charged with the duty and clothed with the power to protect the
public domain from trespass and unlawful appropriation.
In Stearns, one justice concurred in the judgment on a different basis from the
opinion, and four justices joined in a separate opinion “assenting to the judgment of
reversal.” Stearns, 179 U.S. at 253-54. The Subcommittee has found no reported
opinion in which the Supreme Court or any other federal court treated Stearns as a
plurality opinion.
3

12

 The United States can prohibit absolutely or fix the terms on which
its property may be used. As it can withhold or reserve the
land, it can do so indefinitely. Stearns v. Minnesota, 179 U. S.
243, 45 L. ed. 173, 21 Sup. Ct. Rep. 73. It is true that the United
States do not and cannot hold property as a monarch may, for
private or personal purposes. But that does not lead to the
conclusion that it is without the rights incident to ownership, for
the Constitution declares, § 3, art. 4 that ‘Congress shall have
power to dispose of and make all needful rules and regulations
respecting the territory or the property belonging to the United
States.’ The full scope of this paragraph has never been definitely
settled. Primarily, at least, it is a grant of power to the United
States of control over its property.
Id. at 536-537 (citations and quotation marks omitted) (emphasis added).
Although the above-quoted language appears to definitively answer the
question at hand, the specific issue before the Supreme Court in Light was
whether the court of appeals properly granted an injunction to prohibit a cattle
owner from grazing his cattle on a forest reservation. Light, 220 U.S. at 524.
The Court held that the injunction was properly granted and, in so holding,
stated that it was “unnecessary to consider … the other constitutional
questions involved.” Light, 220 U.S. at 538. Thus, the Court’s explanation of
the contours of the Property Clause in Light appears to be dicta.
A recently-issued white paper prepared for a Utah state commission that
analyzed legal theories for the State to attempt to gain ownership or control of
public lands discussed the Supreme Court’s Property Clause jurisprudence.
White Paper, at 79-85.
Citing Kleppe, Gibson, Van Brocklin, and United States v. Gratiot, 39
U.S. 526 (1840), the White Paper acknowledged that, “[t]here is no question
that, within the constraints of the Constitution, Congress has plenary power
to manage and regulate the property it owns, and to decide to sell it or withhold
it from sale. Id. at 124, n.265. The White Paper noted that these cases did not
address the specific question whether the Property Clause grants Congress the
authority to “forever retain the majority of the land within a State.” Id. at 125.
The White Paper analyzed Light v. United States as the “closest Supreme
Court case on record” regarding “whether Congress can forever retain the
13

 majority of the land within a State.” Id. at 125-28. After analyzing Light, the
White Paper concluded that the question of “[w]hether the Property Clause
grants the United States the power to permanently own over sixty-six percent
of the State of Utah is an open one under existing jurisprudence. There is an
indication, however, that this Court might be open to the structural
Constitutional arguments noted above [in the White Paper].” Id. at 128.
At least two lower federal courts have addressed the specific issue of
whether the Property Clause empowers Congress to indefinitely retain
ownership of public lands within a state. See Nevada ex rel. State Bd. of Agric.
v. United States, 512 F. Supp. 166 (D. Nev. 1981); United States v. Gardner,
107 F.3d 1314 (9th Cir. 1997). In Nevada ex rel. State Board of Agriculture, the
State of Nevada alleged that the Federal Land Policy and Management Act of
1976 unconstitutionally infringed upon its Tenth Amendment and equal
footing rights and sought declaratory judgment to determine whether the
United States could constitutionally place a moratorium on the disposal of
public lands. Nevada ex rel. State Bd. of Agric., 512 F. Supp. at 168.
The district court held that “the plaintiff can prove no set of facts which
would entitle it to judicial relief” and dismissed the case. Id. at 172. In its
analysis of the claims, the court addressed the scope of the federal
government’s authority under the Property Clause:
The public domain passes to the United States upon the admission
of a state to the Union; this is implicit in the acts of admission.
Regulations dealing with the care and disposition of public lands
within the boundaries of a new state may properly be embraced in
its act of admission, as within the sphere of the plain power of
Congress. No state legislation may interfere with Congress' power
over the public domain; to prevent any attempt at interference, the
act of admission usually contains an agreement by the state not to
interfere. Nevada was admitted to the Union subject to such an
agreement.
Art. 4, s 3, Cl. 2 of the Constitution (“The Congress shall have
Power to dispose of and make all needful Rules and Regulations
respecting the Territory and other property belonging to the
United States....”) entrusts Congress with power over the public
land without limitations; it is not for the courts to say how that
trust shall be administered, but for Congress to determine.
Necessarily, then, the U.S. Government may sell public land
14

 or withhold it from sale. Thus, the consent of the state is
not required for Congress to withdraw large bodies of land
from settlement. That a power may be injuriously exercised is no
reason for a misconstruction of the scope and extent of that power.
Id. at 171-72 (citations omitted) (emphasis added).4
In United States v. Gardner, the Ninth Circuit addressed a number of
arguments related to the core question of whether the United States has legal
title to the public lands in Nevada. United States v. Gardner, 107 F.3d 1314
(9th Cir. 1997). Relying on language from Pollard’s Lessee v. Hagan, 44 U.S. (3
How.) 212 (1845), the appellants argued that the United States has legal
authority to hold land in trust for the creation of future states but is not
authorized to retain land for its own purposes. Gardner, 107 F.3d at 1317.
The court in Gardner rejected this argument. Id. at 1317-18. It first
distinguished Pollard’s Lessee, explaining that (1) the United States held the
land at issue in Pollard’s Lessee in trust for the establishment of future states
because the States of Georgia and Virginia ceded that land to the federal
government and the terms of the cessions dictated that the authority of the
United States over the land would cease after the land was used to create new
states, but (2) as a result of the Treaty of Guadalupe Hidalgo in 1848, the
United States was the initial owner of the lands that were used to create the
State of Nevada. Id. (citation omitted). Based on the difference in the nature of
the federal government’s property interests in each case, the panel determined
that the reasoning from Pollard’s Lessee did not apply to the situation in
Gardner. Id.
The court then addressed the extent of the federal government’s
authority over the public lands in Nevada, explaining that the public lands had
been the property of the federal government since Mexico ceded the land to the
United States in 1848 and, as such, were subject to the Property Clause. Id. at
1318. The court observed that the United States Supreme Court has recognized
that Congress’s power over the public lands is without limitations and includes

On appeal, the Ninth Circuit upheld the dismissal, not on the merits, but on the
ground that the case had become moot with the lifting of the moratorium. Nevada ex
rel. State Bd. of Agric. v. United States, 699 F.2d 486, 487 (9th Cir. 1983).
4

15

 the power to sell public lands or withhold them from sale. Id. (citations
omitted).5
In Nevada ex rel. State Board of Agriculture and Gardner, the courts
concluded that (1) the federal government’s power over the public lands is
without limitations, and (2) this power includes the discretion to withhold
public lands from sale. In reaching these conclusions, the courts did not find
there were any temporal limitations on the power to withhold public lands from
sale. Therefore, Nevada ex rel. State Board of Agriculture and Gardner
reasonably can be interpreted as supporting an argument that the Property
Clause vests the United States with the power to retain public lands
indefinitely.
II.

Conclusions

In the final analysis, the Subcommittee has found no nationally binding
precedent that directly answers the question of whether the Property Clause
empowers the federal government to retain ownership of public lands
indefinitely. No United States Supreme Court case is directly on point.
Although the decisions in Nevada ex rel. State Board of Agriculture and
Gardner arguably answer the question directly and in the affirmative, Nevada
ex rel. State Board of Agriculture is not binding precedent on any court and
Gardner is not binding precedent outside of the Ninth Circuit.
Although no Supreme Court case has directly answered the question, in
Stearns and in Light the Court stated that Congress may retain ownership of
public lands indefinitely under the Property Clause. If these statements are
viewed as dicta, they are not controlling, but may be followed by the Court. See
Humphrey’s Ex’r v. United States, 295 U.S. 602, 627 (1935). For almost two
centuries the Supreme Court has followed the rule that “‘general expressions,
in every opinion, are to be taken in connection with the case in which those
expressions are used. If they go beyond the case, they may be respected, but
ought not to control the judgment in a subsequent suit when the very point is
presented for decision.’” Ark. Game & Fish Comm’n v. United States, ― U.S. ―,
The Supreme Court denied a petition for writ of certiorari and a request for
rehearing on the petition filed in the Gardner case. Gardner v. United States, 522
U.S. 907 (1997); 522 U.S. 1008 (1997). Generally, denial of a petition “carries with it
no support of the decision in that case, nor of any of the views in the opinion
supporting it.” Agoston v. Pennsylvania, 340 U.S. 844, 845 (1950).
5

16

 133 S. Ct. 511, 520 (2012) (quoting Cohens v. Virginia, 6 Wheat. 264, 399
(1821)). It thus appears that the Court would have discretion to follow the
statements in Stearns and in Light, but would not be bound by those
statements, in addressing whether the United States may retain ownership of
public lands indefinitely. The readers of this Paper must draw their own
conclusions as to whether the Supreme Court likely would follow the dicta from
Stearns and Light if squarely presented with the indefinite ownership
question.
QUESTION 2: Is the ownership of the public lands by the federal
government limited to those purposes set forth in the Enclave Clause,
United States Constitution Article I, Section 8? Or, to ask the question
another way, is there a reasonable legal basis for a claim that the
Enclave Clause precludes federal purchase, ownership, and control
for other purposes?
Article I, Section 8, Clause 17 of the United States Constitution provides:
The Congress shall have power 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 the 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, dockyards, and
other needful buildings ….
During the time following the end of the Revolutionary War and before
ratification of the Constitution, the newly-minted federal government had two
problems with ownership of lands not owned by the various states. The first
was that it needed a legal means to own and control lands required for
important governmental functions such as forts, prisons, and seats of
government. The second was that, as the result of negotiations among the
various states leading up to ratification of the Constitution, tracts of land,
generally to the west of the original thirteen states, were ceded to the federal
government by several of the states, and the federal government needed a legal
basis to own and deal with those lands.
The first need was addressed in the Constitution by the Article I Enclave
Clause. The second was addressed by the Article IV Property Clause.
17

 I.

Development of the Meaning and Effect of the Enclave Clause by
the Courts

As to properties which actually come within the conditions of the Enclave
Clause (properties purchased by consent of the state legislature and utilized
for one of the necessary governmental purposes), the federal government has
exclusive legislation, and the state has no governmental jurisdiction. See, e.g.,
Osburn v. Morrison Knudsen Corp., 962 F. Supp. 1206, 1208-09 (E.D. Mo.
1997).
However, much of the land owned by the United States did not come into
its possession through the express conditions of the Enclave Clause; the land
was not purchased by the federal government with consent of the legislature
of any state. The United States became the owner of large tracts of land before
the states encompassing those tracts were created, with those lands coming by
treaty with Great Britain, by cession from foreign powers, and by cession from
various of the original thirteen states. Fort Leavenworth R.R. Co. v. Lowe, 114
U.S. 525, 532 (1885). In cases where the United States did purchase lands,
states sometimes attached conditions to cessions of jurisdiction which
precluded exclusive jurisdiction. Id. at 533-39; James v. Dravo Contracting Co.,
302 U.S. 134, 149 (1937) (determining that the Enclave Clause “contains no
express stipulation that the consent of the state must be without
reservations”); Collins v. Yosemite Park Co., 304 U.S. 518, 528 (1937)
(“Jurisdiction obtained by consent or cession may be qualified by agreement or
through offer and acceptance or ratification. It is a matter of arrangement.
These arrangements the courts will recognize and respect.”).
The result was recognition by the courts that the United States
Constitution accommodates ownership and management by the United States
of lands outside the prescriptions of the Enclave Clause. As summarized by
George C. Coggins and Robert L. Glicksman in their treatise Public Natural
Resources Law:
Courts consequently rewrote the Enclave Clause to allow
ratification of virtually any division of jurisdiction and authority
over the tract agreed to by the respective governments.
1 George C. Coggins and Robert L. Glicksman, Public Natural Resources Law
§ 3.7 (2nd ed. 2015).
18

 As to Congress’s authority to deal with lands not within the strict
confines of the Enclave Clause, the United States Supreme Court has
consistently dealt with the problem by reference to the Property Clause, Article
IV, Section 3, of the United States Constitution.
In United States v. Gratiot, the Court said of the Property Clause:
The term territory, as here used, is merely descriptive of one kind
of property, and is equivalent to the word lands. And congress has
the same power over it as over any other property belonging to the
United States, and this power is vested in congress without
limitation[.]
United States v. Gratiot, 39 U.S. 526, 537-39 (1840).
Later, in Camfield v. United States, the Court said,
[W]e do not think the admission of a Territory as a State deprives
it [the United States] of the power of legislating for the protection
of the public lands, though it may thereby involve the exercise of
what is ordinarily known as the police power …. [A] different rule
would place the public domain of the United States completely at
the mercy of state legislation.
Camfield v. United States, 167 U.S. 518, 525-26 (1896).
Additionally, in Butte City Water Co. v. Baker, the Court said:
The authority of Congress over the public lands is granted by
section 3, article IV, of the Constitution, which provides that “the
Congress shall have power to dispose of and make all needful rules
and regulations respecting the Territory or other property
belonging to the United States.” In other words, Congress is the
body to which is given the power to determine the conditions upon
which the public lands shall be disposed of. The Nation is an
owner, and has made Congress the principal agent to dispose of its
property.
Butte City Water Co. v. Baker, 196 U.S. 19, 125-26 (1904).

19

 In 1910, in Light v. United States, the Court said, “[T]he full scope of this
paragraph (referring to the Property clause) has never been definitely settled.”
Light v. United States, 220 U.S. 523 at 536-37(citing Kansas v. Colorado, 206
U.S. 46, 89 (1907)).
And most recently, in Kleppe v. New Mexico, the Court said:
And while the furthest reaches of the power granted by the
Property Clause have not yet been definitely resolved, we have
repeatedly observed that “[t]he power over the public land thus
entrusted to Congress is without limitations.” [United States v.
Cnty. of San Francisco, 310 U.S. 16, 29 (1940)].
Kleppe v. New Mexico, 426 U.S. 529, 539 (1976).
Some commentators have disagreed with the Supreme Court’s reliance
on, and application of, the Property Clause contending that, properly
construed, the Enclave Clause should have the effect of limiting the United
States’s ownership and control of federal lands contained within states.
In his 1976 article, David Engdahl explains his “classical public property
power doctrine.” David E. Engdahl, State and Federal Power Over Federal
Property, 18 Ariz. L. Rev. 283 (1976). Under his theory, as to federal property
not meeting the conditions of the Enclave Clause, the states had general
governmental jurisdiction and the United States had only limited power akin
to that of a proprietor. Engdahl, at 296. He argues that, under cases such as
Fort Leavenworth R.R. Co. v. Lowe, where the United States held property
within a state without the consent of the legislature, the state maintained
general governmental jurisdiction over that property except that, to the extent
the United States was using the property for one of the enumerated
governmental powers, it would be free from any such interference and
jurisdiction of the state as would destroy or impair the lands’ effective use for
the purposes designed. Engdahl, at 296 (citing to Fort Leavenworth R.R. Co. v.
Lowe, 114 U.S. 525, 531, 539 (1885)).
Engdahl contends that this exemption from state control, or, looked at
from the United States’s perspective, this constitutional grant of authority to
the United States, did not flow from the Article IV Property Clause, but
instead, from the doctrine of intergovernmental immunities and the doctrine
of the Necessary and Proper Clause [U.S. Const. Article I, Section 8, Clause
18]. Engdahl, at 299. The Necessary and Proper Clause “supports measures
20

 affirmatively enacted by Congress, combining with the supremacy clause to
enable such measures to override conflicting state laws, while the
intergovernmental immunities doctrine can limit state power with respect to
federal instrumentalities regardless of congressional action on the matter.” Id.
Engdahl notes one additional limit or qualification to states’ general
governmental jurisdiction over federal non-enclave property. Even after
federal lands within a territory were brought within a state, acquisition of title
and other private rights remained under federal, not state law. Engdahl says
this was “clearly understood as an exception to the general principle that
governmental jurisdiction over article IV property was vested in the state
within which the lands lay.” Engdahl, at 297.
The classic property power doctrine has not been favorably received by
the courts. In Ventura County v. Gulf Oil Corp., the court dismissed a litigant’s
attempts to limit the scope of the Property Clause, saying, “[I]n light of Kleppe,
the renewed attempt to restrict the scope of congressional power under the
Property Clause in the present case is legally frivolous.” Ventura County v.
Gulf Oil Corp., 601 F. 2d 1080, 1083 (9th Cir. 1979), aff’d without opinion, 445
U.S. 947 (1980)).6
II.

Conclusions

There is room in the history and the express wording of the Enclave and
Property Clauses to support a different view of the authority of the United
States to own and manage public lands than that recognized in Kleppe v. New
Mexico, but the clear weight of relevant decisions by the United States
Supreme Court is to the effect that ownership of the public lands by the federal
government is not limited to those purposes set forth in the Enclave Clause.

Engdahl had his own strongly-felt views. Acknowledging that, as the law has
developed, the classic theory has gotten lost, he attributes this to “A Generation of
Confusion and Neglect” (Engdahl, at 310); inadequate advocacy (Id. at 360); and, at
least insofar as federalism issues are concerned, a sore need for “much more
sophisticated scholarship” by the Supreme Court (Id. at 357-58).
6

21

 Question 3: Is there a reasonable legal basis for a claim that the equal
footing doctrine precludes federal purchase, ownership, and control
of public lands?
The original thirteen states, and each after-admitted state, are
sovereigns. “[I]n every sovereign political community there inheres necessarily
the right and the duty of guarding its own existence, and of protecting and
promoting the interests and welfare of the community at large.” W. River
Bridge Co. v. Dix, 47 U.S. (6 How.) 507, 531 (1848). In forming a union, the
original thirteen states necessarily delegated certain powers to the central
government, but “it would imply an incredible fatuity in the States, to ascribe
to them the intention to relinquish the power of self-government and selfpreservation.” Id. This principle is embodied in the Tenth Amendment, which
provides that “[t]he powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the states
respectively, or to the people.” In joining the union, after-admitted states
necessarily succeed to the same “rights of dominion and sovereignty which
belonged to the original states.” Escanaba & Lake Mich. Transp. Co. v.
Chicago, 107 U.S. 678, 689 (1883).
One “essential attribute of sovereignty” shared by the original thirteen
states and all after-admitted states is title and control of submerged lands.
Utah Div. of State Lands v. United States, 482 U.S. 193, 195-98 (1987). In order
to place after-admitted states on an “equal footing” with the original states,
title to submerged lands vests in each state upon its admission. Id. at 196. It
has been suggested that similar reasoning should apply to vacant uplands
because the original thirteen states succeeded to ownership of all vacant crown
lands upon gaining independence—thus, such lands were an attribute of the
sovereignty possessed by the original states. White Paper, at 79-85.
Alternatively, it has been suggested that even if ownership of vacant public
lands is not an inherent attribute of sovereignty, permanent federal ownership
and sovereign control over massive land holdings in the western states is such
an intrusion upon state sovereignty that such lands must be either disposed of
or turned over to the states in order to ensure all states in the union enjoy
equal sovereignty. The following analysis examines both the “equal footing”
and “equal sovereignty” theories for state assertions of title to federal public
lands in the western states.

22

 I.

Historical Background

In England and the American colonies, the Crown owned all vacant
lands, whether dry or submerged. Vacant uplands were an economic asset and
were sold or granted to private owners. Edward T. Price, Dividing the Land:
Early American Beginnings of our Private Property Mosaic, 7-18 (1995).
Submerged lands, on the other hand, had a unique status because, by nature,
they were "incapable of ordinary and private occupation, cultivation and
improvement; and their natural and primary uses are public in their nature,
for highways of navigation and commerce, domestic and foreign, and for the
purpose of fishing by all the King's subjects.” Shively v. Bowlby, 152 U.S. 1, 11
(1894). English law recognized two aspects of submerged land ownership: the
jus privatum, or legal title, and the jus publicum, described as “the dominion
thereof … vested [in the king] as the representative of the nation and for the
public benefit.” Id. The jus publicum was so closely tied to sovereignty that it
could not be conveyed to non-sovereigns: there “can be no irrepealable
…conveyance … in disregard of a public trust, under which [the sovereign] was
bound to hold and manage it.” Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 460
(1892).
When the 13 colonies gained independence from Britain, they succeeded
to all Crown lands, both upland and submerged. Town of Pawlet v. Clark, 13
U.S. (9 Cranch) 292 (1815); Martin v. Waddell's Lessee, 41 U.S. (16 Pet.) 367,
416 (1842). In the newly sovereign states, title to submerged lands continued
to be “different in character from that which the state holds in lands intended
for sale.” Ill. Cent. R.R. Co., 146 U.S. at 452. Title to submerged lands was
“held in trust for the people of the state, that they may enjoy the navigation of
the waters, carry on commerce over them, and have liberty of fishing therein,
freed from the obstruction or interference of private parties.” Id. Uplands, on
the other hand, were not held in trust for public use. State-owned uplands
were treated primarily as assets, and held only until such time as they could
be sold into private ownership. Price, supra, at 185.
After independence, disputes arose among the thirteen states regarding
claims to vacant western lands. In some cases more than one state claimed the
same territory, but the primary dispute arose from the fact that only seven of
the thirteen states had western land claims, leaving the "landless" states to
fear that any future union would be dominated, politically and economically,
by the states that controlled large portions of the western frontier. J. Jackson
Owensby, The United States Constitution (Revisited), 46 (2011).
23

 To resolve the crisis, the Continental Congress adopted a resolution in
1780 calling for the states to cede their western lands to the United States. 17
Journals of Continental Congress 808 (resolution of Sept. 6, 1780). The ceded
lands were “considered a common fund for the use and benefit of such of the
United States as have become or shall become members of the confederation
according to their usual proportions or quotas of general charge and
expenditure, and shall be applied and disposed of for that purpose and no other
whatsoever ….” Id.
The Land Ordinance of 1784 called for the division of the ceded lands
into districts that would be eventually admitted as states “on an equal footing
with the said original states." 26 Journals of Continental Congress 274, 27778 (April 23, 1784). The drafters understood “equal footing” to mean that upon
admission a state is “entitled to and possessed of all the rights of dominion and
sovereignty which belonged to the original states … Equality of constitutional
right and power is the condition of all the states of the Union, old and new.”
Escanaba & Lake Mich. Transp. Co., 107 U.S. at 688-89. The requirement that
new states be admitted on an equal footing with old states was carried forward
into the Northwest Ordinance of 1787, which also provided as follows:
The legislatures of those districts or new States, shall never
interfere with the primary disposal of the soil by the United
States in Congress assembled, nor with any regulations Congress
may find necessary for securing the title in such soil to the bona
fide purchasers. No tax shall be imposed on lands the property of
the United States …. The navigable waters leading into the
Mississippi and St. Lawrence, and the carrying places between the
same, shall be common highways and forever free, as well to the
inhabitants of the said territory as to the citizens of the United
States, and those of any other States that may be admitted into
the confederacy, without any tax, impost, or duty therefor.
Northwest Ordinance, art. 5, 32 Journals of the Continental Congress 334, 341
(July 13, 1787)(emphasis added).
Together, the Continental Congress’s actions established that after a
state’s admission on equal footing, “soil” would continue to be held by the
United States for disposal and income generation. On the other hand,
Congress, while providing that navigable waters would be forever held for
public use, did not explicitly address whether dominion over such waters would
continue to be held by the United States after statehood or would pass to the
24

 newly-admitted states. It was left to the courts to determine whether the public
interest, or jus publicum, in navigable waters passed to the newly-admitted
states as an incident of the sovereignty guaranteed to the new states by the
equal footing clause in the Northwest Ordinance. The question examined
herein is whether the Court’s holdings regarding the states’ equal footing
entitlement to submerged lands may be applied to uplands retained by the
United States for purposes other than disposal.
II.

Early Case Law

In a series of early decisions, the Supreme Court established that
submerged lands are an essential attribute of sovereignty that, to assure equal
footing, must vest in the state upon its admission, while concurrently
recognizing, in a separate series of cases, that the Property Clause authorized
federal retention of uplands after statehood. The first case to discuss the equal
footing doctrine as it applies to lands was Mayor of New Orleans v. United
States, 35 U.S. (10 Pet.) 662 (1836). The Court began by discussing the unique
nature of lands adjacent to the Mississippi River that had been dedicated to
public use while under French jurisdiction. Quoting Domat, a French jurist,
the Court recognized:
Domat, liv. 1, title 8, sec. 1, art. 1, says, there are two kinds of
things destined to the common use of men, and of which every one
has the enjoyment. The first are those which are so by nature; as
rivers, the sea and its shores. The second, which derive their
character from the destination given them by man; such as streets,
highways, churches, markethouses, courthouses, and other public
places ….
Id. at 720. Once land was “dedicated to public use [it] was withdrawn from
commerce; and so long as it continued to be thus used, could not become the
property of any individual.” Id. at 731 (citing laws of Spain). When the United
States obtained the Louisiana Territory, it held it subject to such public
dedications. Id. at 732. After the admission of Louisiana as a state on an equal
footing with the original states, lands dedicated to public use passed to
Louisiana:
The state of Louisiana was admitted into the union, on the same
footing as the original states. Her rights of sovereignty are the
same, and by consequence no jurisdiction of the federal
government, either for purposes of police or otherwise, can be
25

 exercised over this public ground, which is not common to the
United States. It belongs to the local authority to enforce the trust,
and prevent what they shall deem a violation of it by the city
authorities.
Id. at 737. Because “neither the fee of the land in controversy, nor the right to
regulate the use, [was] vested in the federal government,” the disposition of
the land was a question subject to the general sovereignty of the state, since
“[a]ll powers which properly appertain to sovereignty, which have not been
delegated to the federal government, belong to the states and the people.” Id.
In short, the Mayor of New Orleans decision established the principle that
submerged lands by their nature are dedicated to public use and are held by
the sovereign in trust for the populace. Upon admission, title to submerged
lands passes to the state.
A few years later, the Court again examined the nature of submerged
lands and their ties to state sovereignty in Martin v. Waddell’s Lessee, 41 U.S.
(16 Pet.) 367 (1842). The Court was asked to determine title to 100 acres of
tideland in New Jersey. The plaintiff claimed title under a purported
conveyance from King Charles while New Jersey was still a colony. Id. at 407.
The Court held that any conveyance of tidelands by the king had to be strictly
construed because under English law tidelands were “held by the king in his
public and regal character, as the representative of the nation, and in trust for
them.” Id. at 409. Any conveyance of tideland was not a simple alienation but
required the king “to sever the bottoms of the navigable waters from the
prerogative powers of government … and to convert them into mere franchises
in the hands of a subject, to be held and used as his private property.” Id. at
410. To accomplish this, the deed would have to include language “for the
purpose of separating [the submerged lands] from the jura regalia [rights
which belong to the crown] and converting them into private property.” Id. at
413.
The Court then emphasized that:
[W]hen the revolution took place, the people or each state became
themselves sovereign; and in that character hold the absolute right
to all their navigable waters, and the soils under them, for their
own common use, subject only to the rights since surrendered to
the general government.
Id. at 410. Martin demonstrates that by 1842, it was well-established that
submerged lands were an incident of state sovereignty. Unlike public lands
26

 held for sale, submerged lands were “dedicated to public use … and … could
not become the property of any individual” unless steps were first taken to
sever the lands from sovereignty. Mayor of New Orleans, 35 U.S. (10. Pet.) at
731. Newly admitted states, having the same rights as original states, assumed
sovereign ownership of submerged lands upon admission. In general, federal
title to submerged lands ceased upon state admission because retention of title
was not a matter confided to the federal government under the Constitution.
The United States retained only its delegated powers over navigable waters,
such as the authority to regulate commerce. Shively v. Bowlby, 152 U.S. 1, 22,
57-58 (1894).
III.

Pollard’s Lessee v. Hagan

The primary case cited for the principle that equal footing requires the
United States to either dispose of public lands or cede them to the state is
Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845). There, the plaintiff,
who possessed a post-statehood federal patent to certain lands below the high
water mark of the Mobile River, sought to affirm his title to such lands. As
such, the decision hinged on the validity of the federal patent.
The issue was framed by the defendant as resting on the question of
whether the United States had “any title to lands covered by navigable water,
[a] question. . . important to the new states, as involving an attribute of
sovereignty, the want of which makes an invidious distinction between the old
and new states.” Id. at 215. The defendant, citing Martin v. Waddells’ Lessee,
asserted that the “right to the shore between high and low water mark is a
sovereign right, not a proprietary one . . . they are not land, which may be sold,
and the right to them passes with a transfer of sovereignty.” Id. at 215-16. The
defendant went on to state: “when [sovereignty] passes, the right over rivers
passes too. Not so with public lands.” Id. at 216.
The Court explained at the beginning of its opinion that it was only
addressing the question of title to lands under navigable waters: “this is the
first time we have been called upon to draw the line that separates the
sovereignty and jurisdiction of the government of the union, and the state
governments, over the subject in controversy.” Id. at 220 (emphasis
added).
The Court rejected the plaintiff’s argument that the state’s disclaimer to
“unappropriated lands” includes “waste … lands” (a term then commonly used
to refer to submerged lands), so that “the land under the navigable waters, and
27

 the public domain above high water, were alike reserved to the United States.”
Id. at 221. The Court stated:
Taking the legislative acts of the United States, and the states of
Virginia and Georgia, and their deeds of cession to the United
States, and giving to each, separately, and to all jointly, a fair
interpretation, we must come to the conclusion that it was the
intention of the parties to invest the United States with the
eminent domain of the country ceded, both national and municipal,
for the purposes of temporary government, and to hold it in trust
for the performance of the stipulations and conditions expressed in
the deeds of cession and the legislative acts connected with them.
To a correct understanding of the rights, powers, and duties of the
parties to these contracts, it is necessary to enter into a more
minute examination of the rights of eminent domain, and the right
to the public lands. When the United States accepted the cession
of the territory, they took upon themselves the trust to hold the
municipal eminent domain for the new states, and to invest them
with it, to the same extent, in all respects, that it was held by the
states ceding the territories.
Id. at 222-23. From the above statement, the Court was obviously
distinguishing the “municipal eminent domain” (which includes ownership of
submerged lands) from the “public lands.”
The Court then identified the “eminent domain” as the “right which
belongs to the society, or to the sovereign, of disposing, in case of necessity, and
for the public safety, of all the wealth contained in the state.” Id. at 223. “[T]he
eminent domain, although a sovereign power, does not include all sovereign
power, and this explains the sense in which it is used in this opinion.” Id. The
Court then stated:
When Alabama was admitted into the union, on an equal footing
with the original states, she succeeded to all the rights of
sovereignty, jurisdiction, and eminent domain which Georgia
possessed at the date of the cession, except so far as this right was
diminished by the public lands remaining in the possession and
under the control of the United States, for the temporary purposes
provided for in the deed of cession and the legislative acts
connected with it. Nothing remained to the United States,
according to the terms of the agreement, but the public lands.
28

 Id. In the Court’s view, while the Constitution requires that rights of
sovereignty and eminent domain pass to the state upon admission, it also
provides that “public lands” may remain “under the control of the United
States.” Id. Thus, the “right of Alabama and every other new state to exercise
all the powers of government, which belong to and may be exercised by the
original states of the union, must be admitted, and remain unquestioned,
except so far as they are, temporarily, deprived of control over the public
lands.” Id. at 224. The Court then described the nature of the federal
government’s right to public lands as follows:
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.
Whenever the United States shall have fully executed these trusts,
the municipal sovereignty of the new states will be complete,
throughout their respective borders, and they, and the original
states, will be upon an equal footing, in all respects whatever. We,
therefore, think the United States hold the public lands within the
new states by force of the deeds of cession, and the statutes
connected with them, and not by any municipal sovereignty which
it may be supposed they possess, or have reserved by compact with
the new states, for that particular purpose.
Id. at 224. To be sure, the above-quoted dicta¸ which was not necessary to the
fundamental question of title to submerged lands, establishes that temporary
federal retention of public lands for the purposes of selling them was not an
exercise of “municipal sovereignty” and, thus, not a violation of the sovereignty
guaranteed to the state by the equal footing doctrine. But the Court did not
take the next step of holding that federal retention of public lands for purposes
other than sale would be an act of “municipal sovereignty” that would violate
the equal footing of the subject state. Thus, the decision in Pollard's Lessee left
room for the Court to later determine, as will be seen herein, that federal
29

 retention of public lands does not pose an impermissible intrusion upon state
sovereignty.
A further reason to doubt that Pollard's Lessee provides support for state
claims to public lands under the equal footing doctrine is found in the Court’s
acknowledgment that the United States’s post-statehood retention of public
domain lands for sale was empowered by the Property Clause and was not a
function of any agreement in a state’s admission compact. Pollard's Lessee, 44
U.S. (3 How.) at 224. The Court noted that the required disclaimer of state title
to the “waste and unappropriated” lands “cannot operate as a contract between
the parties, but is binding as a law,” because the Property Clause “authorized
the passage of all laws necessary to secure the rights of the United States to
the public lands, and to provide for their sale, and to protect them from
taxation.” Id. Thus, the Court squarely rejected the proposition that federal
retention of public lands “required the express consent of the people of the new
state.” Id. at 225. As the Court explained:
The propositions submitted to the people of the Alabama territory,
for their acceptance or rejection, by the act of Congress authorizing
them to form a constitution and state government for themselves,
so far as they related to the public lands within that territory,
amounted to nothing more nor less than rules and regulations
respecting the sales and disposition of the public lands. The
supposed compact relied on by the counsel for the plaintiffs,
conferred no authority, therefore, on Congress to pass the act
granting to the plaintiffs the land in controversy.
Id. at 225. If in fact there was an equal footing entitlement to ownership of
public domain lands, then a disclaimer from the state would be required to
ensure that federal patents provided clear title to such lands. The Court’s
conclusion that the disclaimer was declaratory, rather than contractual, is
difficult to square with the notion that states are entitled to public domain
lands as a matter of sovereignty. The Court’s recognition that the Property
Clause alone is sufficient to “secure the rights of the United States to the public
lands” suggests that the modern Court would not interpret Pollard’s Lessee as
recognizing state sovereignty-based entitlement to public lands.7

Since Pollard's Lessee, the Court has repeatedly affirmed that state disclaimers to
public lands “being within the sphere of congressional power, can derive no force from
the consent of the state.” Coyle v. Smith, 221 U.S. 559, 570 (1911); Van Brocklin v.
7

30

 IV.

Equal Sovereignty

Closely related to the equal footing doctrine is the equal sovereignty
principle. While the equal footing doctrine restricts the limitations that may
be placed upon a state as a condition of admission, the equal sovereignty
principle restricts the ability of Congress to enact legislation that
discriminates among the States after their admission. One of the earlier
expressions of the equal sovereignty principle is found in Permoli v.
Municipality No. 1 of City of New Orleans.
[T]here is, and must be, from a constitutional necessity, a perfect
and unchangeable equality among the states, not indeed in
reference to the powers which they may separately exercise, (for
that depends upon their own municipal constitutions,) but in
reference to those which they separately retain. What
Massachusetts may do, Louisiana may do. What Congress may
not forbid Massachusetts to do, it may not forbid Louisiana to do.
Permoli v. Municipality No. 1 of City of New Orleans, 44 U.S. (3 How.) 589, 606
(1845):
The equal sovereignty principle finds some textual support in
constitutional provisions mandating that certain congressional powers be
exercised uniformly throughout the United States. Article I, § 8 provides that
“all duties, imposts and excises shall be uniform through the United States.”
The provision was enacted to prevent “discrimination as between the states,
by the levying of duties, imposts, or excises upon a particular subject in one
state and a different duty, impost, or excise on the same subject in another.”
Knowlton v. Moore, 178 U.S. 41, 89 (1900). Related provisions in Article I, § 8
require Congress to “establish a uniform rule of naturalization, and uniform
laws on the subject of bankruptcies throughout the United States.” Article I,
§ 9 (the Port Preference Clause) provides that “[n]o preference shall be given
by any regulation of commerce or revenue to the ports of one State over those
of another.”

Anderson, 117 U.S. 151, 167 (1886) (disclaimers to public lands “are but declaratory,
and confer no new right or power upon the United States”).
31

 On the other hand, the Constitution, by mandating equal treatment
among the states in some areas but not others, could also be interpreted to
imply the absence of a general principle of state equality. Zachary S. Price,
NAMUDNO’s Non-Existent Principle of State Equality, 88 N.Y.U. L. Rev.
Online 24, 27 (2013).8 The Court has held that because an explicit requirement
of uniformity appears in only some constitutional provisions, other provisions,
like the Commerce Clause, do not “impose requirements of geographic
uniformity.” Sec'y of Agric. v. Cent. Roig Ref. Co., 338 U.S. 604, 616 (1950).
And, even for those constitutional provisions explicitly prohibiting
discrimination between the states, such as the Port Preference Clause, there
are many circumstances in which Congress can lawfully take actions that treat
different States differently, so long as such effects are incidental to an action
otherwise within Congress’ power and not the result of intentional
discrimination among the States.
In Pennsylvania v. Wheeling & Belmont Bridge Co., Pennsylvania
challenged the constitutionality of a federal statute declaring a bridge over the
Ohio River to be a legal structure, despite the fact that it obstructed largerclass steamboats from reaching ports in Pennsylvania, thus effectively
diverting river traffic to ports in Virginia. Pennsylvania v. Wheeling & Belmont
Bridge Co., 59 U.S. (18 How.) 421 (1855). The Court rejected the proposition
that the Port Preference Clause prohibited congressional actions directed to
specific projects that gave advantage to one state at the expense of another,
because “the principal object of the framers … in conferring the [commerce]
power would be sacrificed to the subordinate consequences resulting from its
exercise.” Id. at 433-34. The Court held that “what is forbidden is, not
discrimination between individual ports within the same or different States,
but discrimination between States.” Id. at 435. Thus, when Congress engages
in local projects such as river or harbor improvements or erection of lighthouses it does not discriminate between States, even if one state is advantaged
and one state is disadvantaged by the action.
The Court has reached similar results in applying constitutional
provisions requiring uniformity in bankruptcy laws and taxation. In
Blanchette v. Conn. Gen. Ins. Corps., creditors of bankrupt railroads challenged
a statute that was passed to reorganize eight major railroads in the northeast
and midwest regions of the country. Blanchette v. Conn. Gen. Ins. Corps., 419
U.S. 102 (1974). The creditors argued that the statute violated the uniformity
provision of the Bankruptcy Clause because it operated only in a single
8

Available online at: http://perma.cc/JU72-Y6TA.
32

 statutorily defined region. The Court found that “[t]he uniformity provision
does not deny Congress power to take into account differences that exist
between different parts of the country, and to fashion legislation to resolve
geographically isolated problems.” Id. at 159. Likewise, the Court has held that
the Tax Uniformity Clause gives Congress “wide latitude in deciding what to
tax and does not prohibit it from considering geographically isolated problems.”
United States v. Ptasynski, 462 U.S. 74, 84 (1983). Thus, Congress could
exempt from windfall profit taxation all oil production north of the Arctic Circle
even if the exemption only applied to oil wells in Alaska. Id. at 85.
The principles applied in the port preference, bankruptcy, and tax
uniformity cases are instructive because they have also been applied in cases
addressing disparate impacts on the equal sovereignty of the states. In such
cases, the Court has not been concerned with congressional actions that
preempt state sovereignty where necessary to address geographically isolated
problems within a state, even if such impacts on sovereignty are not shared by
other states. Instead, the equal sovereignty principle comes into play only
when Congress attempts to preclude one or more states from exercising certain
sovereign rights statewide while allowing other states to do so. Thomas Colby,
In Defense of the Equal Sovereignty Principle, 65 Duke L. J. 1087 (2016). In
other words, congressional actions that use state boundaries as the dividing
line to determine where an action applies and where it does not are at risk of
being struck down under the equal sovereignty principle. Congressional
actions that curtail state sovereignty within defined geographic locations
within a state are likely to survive equal sovereignty review.
One early case often cited as invoking the equal sovereignty principle is
Withers v. Buckley, which addressed state legislation authorizing the
construction of a canal that would divert the course of a river used by the
plaintiff for transportation of his crops. Withers v. Buckley, 61 U.S. (20 How.)
84 (1857). The plaintiff asserted that the state legislation violated a provision
in the Mississippi enabling act providing “that the Mississippi river, and the
navigable rivers and waters leading into the same, shall be common highways,
and forever free as well to the inhabitants of the State of Mississippi as to other
citizens of the United States.” Id. at 92. The Court held the enabling act
provision
could have no effect to restrict the new State in any of its necessary
attributes as an independent sovereign Government, nor to inhibit
or diminish its perfect equality with the other members of the
Confederacy with which it was to be associated. These conclusions
33

 follow from the very nature and objects of the Confederacy, from
the language of the Constitution adopted by the States, and from
the rule of interpretation pronounced by this court in the case of
Pollard's Lessee v. Hogan, 3 How., p. 223
....
Clearly, Congress could exact of the new State the surrender of no
attribute inherent in her character as a sovereign independent
State, or indispensable to her equality with her sister States,
necessarily implied and guarantied [sic] by the very nature of the
Federal compact.
Id. at 92-93.
Later cases, while applying Withers, provided an important qualification
to the doctrine of state equality. In Escanaba & Lake Michigan Transport Co.
v. Chicago, the City of Chicago prohibited the opening of draw-bridges over the
Chicago River for one hour in the morning and one hour in the evening to
facilitate the flow of traffic to and from workplaces. Escanaba & Lake Mich.,
107 U.S. (17 Otto.) at 679. A steam-ship company challenged the city
ordinance, asserting that the Northwest Ordinance of 1787, as adopted in the
act admitting Illinois into the union, had declared that all rivers leading into
the Mississippi and St. Lawrence Rivers “shall be common highways and
forever free.” Id. at 688. The Court held that the federal provision “ceased to
have any operative force, except as voluntarily adopted by [Illinois] after she
became a state of the Union” because the original states had plenary power to
erect bridges over navigable waters, and “[e]quality of constitutional right and
power is the condition of all states of the Union, old and new.” Id. at 688-89.
Thus, Illinois was entitled “to exercise the same power over rivers within her
limits” that Delaware and Pennsylvania exercise over their rivers. Id.
Concurrently, however, the Court acknowledged the power of Congress
to preempt a State’s sovereign authority over navigable waterways by taking
action directed to a specific river or obstruction:
When [the State’s] power is exercised so as to unnecessarily
obstruct the navigation of the river or its branches, congress may
interfere and remove the obstruction. If the power of the state and
that of the federal government come in conflict, the latter must
control and the former yield. This necessarily follows from the
position given by the constitution to legislation in pursuance of it,
as the supreme law of the land. But until congress acts on the
34

 subject, the power of the state over bridges across its navigable
streams is plenary.
Id. at 683. Thus, while Congress could not take action to obstruct Illinois’s
plenary authority over all rivers in the state, it could obstruct the state’s
authority over specific rivers or geographic areas within the state without
violating the principle of state equality. See also Sands v. Manistee River Imp.
Co., 123 U.S. 288, 296 (1887) (recognizing that while admission term
guaranteeing free navigation of rivers became inoperative upon state’s
admission, Michigan’s “rights of sovereignty and dominion” over rivers were
“restrained by the constitution of the United States and laws of congress
passed in pursuance thereof”); Cardwell v. Am. River Bridge Co., 113 U.S. 205,
211-12 (1885) (while California could not be shorn “as to the navigable waters
within her limits of any of the powers which the original states possessed over
such waters within their limits,” the “right of congress is recognized to interfere
and control the matter whenever deemed necessary”).
One of the most direct applications of the equal sovereignty principle is
Coyle v. Smith, which addressed a provision in the 1906 Oklahoma Enabling
Act which purported to prevent Oklahoma from relocating its capital until
1913. Coyle v. Smith, 221 U.S. 559, 563 (1911). The issue was whether
Congress could limit “the power of the state after its admission” to determine
the location of its capital. Id. at 565. Relying on equal footing principles, the
Court concluded that Congress could not exact, as the price of admission, any
portion of the “residuum of sovereignty not delegated to the United States by
the Constitution itself.” Id. at 567. In short, Congress could not “restrict the
new state in any of its necessary attributes as an independent sovereign
government, nor to inhibit or diminish its perfect equality with the other
members of the Confederacy with which it was to be associated.” Id. at 575.
The Court was careful to note, however, that such restriction on the power of
Congress did not apply to “matters that were within the sphere of
congressional power” under the terms of the Constitution, including its powers
under the Property Clause. Id. at 570. Thus, Congress could lawfully require
the state to disclaim title to public lands and could retain sole authority to
dispose of such lands “solely because the power of Congress extended to the
subject, and therefore would not operate to restrict the state’s legislative power
in respect to any matter which was not plainly within the regulating power of
Congress.” Id. at 574.
While the above-discussed decisions all addressed provisions in state
admission acts, thus implicating the equal footing doctrine, the holdings also
35

 appear to be grounded on the more fundamental principle of “perfect equality”
among the States. Yet, at the same time, the Court clearly concluded that such
equality was only implicated by actions that purported to entirely deny a
state’s power over certain subject matters. A consistent theme in the decisions
is that a state’s equality is not threatened when Congress acts under an
enumerated constitutional power to preempt state authority over a specific
geographical location. In short, the principle of equal sovereignty is violated
when Congress prohibits state A from regulating a particular subject matter
while not enacting similar prohibitions on state B. Equal sovereignty is not
implicated if Congress preempts state A’s authority over specific properties
within the State but does not preempt state B’s authority over comparable
properties. The latter point is particularly true as applied to public lands, since
congressional actions addressing such lands do “not operate to restrict the
state’s legislative power.” Coyle, 221 U.S. at 574.
Modern decisions have provided conflicting guidance regarding the
circumstances under which the Court may invoke the equal sovereignty
principle. The decisions most directly applying the equal sovereignty principle
address section 5 of the Voting Rights Act, which requires those states which
used tests and devices for voter registration, and had a voting rate in the 1964
presidential election at least 12 points below the national average, to obtain
approval from either a three-judge panel in the Federal District Court in
Washington, D.C., or the Attorney General, before implementing changes in
state voting procedures.
In 1966, South Carolina asserted that the doctrine of state equality
barred Congress from confining such remedies to a small number of states.
The Court rejected the assertion, holding that the doctrine of equality “applies
only to the terms upon which States are admitted to the Union, and not to the
remedies for local evils which have subsequently appeared.” South Carolina v.
Katzenbach, 383 U.S. 301, 328-29 (1966). Thus, “[i]n acceptable legislative
fashion, Congress chose to limit its attention to the geographic areas where
immediate action seemed necessary.” Id. at 328.
The subsequent decision of Northwest Austin Municipal Utilility District
Number One v. Holder, cited, with approval, Katzenbach’s conclusion that the
equal sovereignty tradition “does not bar remedies for local evils which have
subsequently appeared” after statehood. Nw. Austin Mun. Util. Dist. No. One
v. Holder, 557 U.S. 193, 203 (2009). At the same time, the Court acknowledged
the “historic tradition that all the States enjoy ‘equal sovereignty.’” Id. at 203.
It tempered such acknowledgment by noting that “a departure from the
36

 fundamental principle of equal sovereignty” may be justified by a “showing
that a statute's disparate geographic coverage is sufficiently related to the
problem that it targets.” Id. The Court ultimately held it need not decide such
constitutional issues and based its decision on an interpretation of the Voting
Rights Act. Id. at 205-06.
Then, in Shelby County v. Holder, the Court, while acknowledging that
“Katzenbach rejected the notion that the [equal sovereignty] principle operated
as a bar on differential treatment outside [the] context” of the admission of new
states, concluded that the decision in Northwest Austin had recognized that
“the fundamental principle of equal sovereignty remains highly pertinent in
assessing subsequent disparate treatment of States.” Shelby Cnty. v. Holder, -- U.S. ---, 133 S. Ct. 2612, 2623-24 (2013). Citing the fact that the states kept
“for themselves, as provided in the Tenth Amendment, the power to regulate
elections,” the Court expressed concern that the basic principle of equal
sovereignty was at issue when some, but not all, “States must beseech the
Federal Government for permission to implement laws that they would
otherwise have the right to enact and execute on their own.” Id. at 2623-24.
While the Court’s decision was clearly informed by the principle of equal
sovereignty, its holding ultimately rested on Congress’s reliance on outdated
information to determine which states and counties were subject to
preclearance requirements: the “tests and devices for voter registration” which
were the original criteria for identifying states subject to section 5, had not
been used in 40 years. In short, “Congress—if it is to divide the States—must
identify those jurisdictions to be singled out on a basis that makes sense in
light of current conditions. It cannot rely simply on the past.” Id. at 2629.
The decision in Shelby County has come under criticism because the
effect of the decision was to reject Katzenbach’s conclusion that the doctrine of
equal sovereignty applied only to the terms of state admission acts “with nary
an explanation of why it finds Katzenbach wrong” other than a citation to the
dicta in Northwest Austin. Id. at 2649 (Ginsburg, J., dissenting). But Shelby
County’s revival of the equal sovereignty doctrine cannot be dismissed as a
mere aberration, because, as discussed above, its roots run far deeper than the
decisions in Katzenbach and Northwest Austin. Indeed, the Court has long held
forth that “the whole Federal system is based upon the fundamental principle
of the equality of the states under the Constitution.” Bolln v. Nebraska, 176
U.S. 83, 89 (1900).
Importantly, however, the Shelby County Court’s concern about unequal
treatment of states was triggered, as were earlier concerns in cases such as
37

 Escanaba & Lake Michigan Transport Co., by congressional legislation that
imposed state-wide restrictions on state sovereignty, as opposed to
preemptions of state authority applicable to certain geographic locations that
result in disparate impacts on the sovereignty of one or more states.
The Court has repeatedly confirmed Congress’s authority to curtail
aspects of state sovereignty in defined geographic areas when necessary to
carry out the federal government’s enumerated powers. Thus, Congress may
immunize not only Indian lands from state taxation but also income earned by
Indians living on such lands. McClanahan v. State Tax Comm'n of Ariz., 411
U.S. 164, 181 (1973). Congress can abrogate state sovereignty over specific
navigable waterways by selling or reserving the beds and banks of such
waterways prior to statehood. E.g., Idaho v. United States, 533 U.S. 262, 28081 (2001). Congress can direct the listing of an animal species as endangered,
even if the impacts of such listing are limited to a single state. Nat'l Ass'n of
Home Builders v. Babbitt, 130 F.3d 1041, 1045 (D.C. Cir. 1997).
All of the above actions directly impede state taxation, state regulation,
or state sovereign autonomy when compared to states that are not subject to
such localized restrictions, but the Court has never held that such
impediments violate the equal sovereignty principle. Rather, the equal
sovereignty principle has been applied only in instances where a state is
entirely “shorn of a legislative power vested in all the other states of the Union,
a power resulting from the fact of statehood and incident to its plenary
existence.” Ward v. Race Horse, 163 U.S. 504, 514 (1896).
Tellingly, despite numerous opportunities, the Court, has never
expressed concern that permanent retention of public lands may violate the
principle of equal sovereignty. One case that addresses this issue squarely is
Stearns v. Minnesota, 179 U.S. 223, 243 (1900). In Stearns, the Court
distinguished admission compacts addressing “political rights and obligations”
from “those solely in reference to property belonging to one or the other”:
It has often been said that a state admitted into the Union enters
therein in full equality with all the others, and such equality may
forbid any agreement or compact limiting or qualifying political
rights and obligations; whereas, on the other hand, a mere
agreement in reference to property involves no question of equality
of status, but only of the power of a state to deal with the nation or
with any other state in reference to such property.

38

 Id. at 244-45. In short, the Court viewed disposition of public lands as an issue
that did not impair the state’s equal footing, so that such matters could be
lawfully “withdrawn from state interference by the terms of the enabling act
and the Constitution.” Id. at 250. The Court went so far as to state that “if
Congress should determine that the great body of public lands within the state
of Minnesota should be reserved from sale for an indefinite period it might do
so,” and went on to acknowledge Congress’s “power to withdraw all the public
lands in Minnesota from private entry or public grant.” Id. at 243. The Court
did not view the principle of state equality as a barrier to congressional
retention of federal lands because “[t]hat a power may be injuriously exercised
is no reason for a misconstruction of the scope and event of that power.” Id.
In Stearns, the Court simply reiterated what were, by then, longstanding precedents recognizing the federal government’s authority, under the
Property Clause, to retain public domain lands after a state’s admission, both
for disposal and for other purposes. In United States v. Fitzgerald, the Court
recognized Congress’s authority under the Property Clause to reserve public
domain lands from sale and appropriate them to public purposes, such as the
erection of a lighthouse. United States v. Fitzgerald, 40 U.S. (15 Pet.) 407, 421
(1841). In Wilcox v. Jackson, the Court likewise recognized Congress’s
authority to appropriate public domain lands under its Property Clause power
for forts and other purposes, holding that “whensoever a tract of land shall
have once been legally appropriated to any purpose, from that moment the land
thus appropriated becomes severed from the mass of public lands.” Wilcox v.
Jackson, 38 U.S. (13 Pet.) 498, 499 (1839). Federal title to reserved or
appropriated lands remained valid after statehood because retention of federal
title was “a subject confided by the Constitution to Congress only.” Id. at 517.
In United States v. Gratiot, the Court affirmed that federal retention of
public domain lands after state admission for purposes other than sale was not
a violation of state sovereignty. United States v. Gratiot, 39 U.S. (14 Pet.) 526,
538 (1840). Gratiot addressed the authority of Congress to reserve lead mines
on public land in the State of Illinois. The United States leased the mines for
a payment of six percent of all lead mined. Id. at 530. The defendants asserted
that federal retention of the lead mines violated the Property Clause because
“no authority in the cession of the public lands to the United States is given,
but to dispose of them, and to make rules and regulations respecting the
preparation of them for sale …. The lands ‘are to be disposed of’ by Congress;
not ‘held by the United States’” Id. at 533.

39

 The Court rejected the defendant’s argument, and upheld the authority
of Congress to reserve public domain lands after statehood for purposes other
than sale:
[T]he Constitution … empowers Congress to make all needful rules
and regulations respecting the territory or other property of the
United States. If such are the powers of Congress over the lands
belonging to the United States, the words ‘dispose of,’ cannot
receive the construction contended for at the bar; that they vest in
Congress the power only to sell, and not to lease such lands. The
disposal must be left to the discretion of Congress. And there can
be no apprehensions of any encroachments upon state rights, by
the creation of a numerous tenantry within their borders; as has
been so strenuously urged in the argument. The law of 1807,
authorizing the leasing of the lead mines, was passed before
Illinois was organized as a state; and she cannot now complain of
any disposition or regulation of the lead mines previously made by
Congress. She surely cannot claim a right to the public lands
within her limits.
Id. at 537-38.
The decisions in the above-discussed cases confirm that the nineteenthcentury Court, while repeatedly applying the principles of equal footing and
equal sovereignty to cases involving submerged lands, did not perceive
reservations of public land to impact the subject state’s status as a sovereign
equal to its peers. This trend continued in the twentieth century. In Light v.
United States, a rancher, accused of letting his cattle trespass on a forest
reservation, argued that the public lands were held in trust for the people of
the state, so that “Congress cannot constitutionally withdraw large bodies of
land from settlement without the consent of the state where it is located.”
Light v. United States, 220 U.S. 523, 535-36 (1911). The Court held:
But “the nation is an owner, and has made Congress the principal
agent to dispose of its property …. Congress is the body to which
is given the power to determine the conditions upon which the
public lands shall be disposed of.” Butte City Water Co. v. Baker,
196 U. S. 126. “The government has, with respect to its own lands,
the rights of an ordinary proprietor to maintain its possession and
to prosecute trespassers. It may deal with such lands precisely as
a private individual may deal with his farming property. It may
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 sell or withhold them from sale.” Canfield v. United States, 167 U.
S. 524. And if it may withhold from sale and settlement, it may
also, as an owner, object to its property being used for grazing
purposes, for “the government is charged with the duty and clothed
with the power to protect the public domain from trespass and
unlawful appropriation.” United States v. Beebe, 127 U. S. 342.
The United States can prohibit absolutely or fix the terms on which
its property may be used. As it can withhold or reserve the land,
it can do so indefinitely. Stearns v. Minnesota, 179 U. S. 243.
Id. at 536-37. The Court then emphasized the limited role of the courts in
matters involving withdrawal of public lands:
“All the public lands of the nation are held in trust for the people
of the whole country.” United States v. Trinidad Coal & Coking Co.
137 U. S. 160. And it is not for the courts to say how that trust
shall be administered. That is for Congress to determine. The
courts cannot compel it to set aside the lands for settlement, or to
suffer them to be used for agricultural or grazing purposes, nor
interfere when, in the exercise of its discretion, Congress
establishes a forest reserve for what it decides to be national and
public purposes. In the same way and in the exercise of the same
trust it may disestablish a reserve, and devote the property to some
other national and public purpose. These are rights incident to
proprietorship, to say nothing of the power of the United States as
a sovereign over the property belonging to it.
Id. at 537. Since Light, the Court has stressed that “[t]he power over the public
land thus entrusted to Congress is without limitations.” United States v. City
& Cnty. of San Francisco, 310 U.S. 16, 29 (1940).
When given the opportunity to extend the equal footing doctrine beyond
submerged lands, the Court has declined to do so. In Scott v. Lattig, the Court
was asked to determine title to an island within a navigable river in the State
of Idaho. Scott v. Lattig, 227 U.S. 229 (1913). The Court concluded that while
"lands underlying navigable waters within the several states belong to the
respective states in virtue of their sovereignty," the island was "fast dry land,
and therefore remained the property of the United States and subject to
disposal under its laws." Id. at 242-44.

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 Sixty years later, the Supreme Court, citing Scott, again held that the
rule in Pollard's Lessee “does not reach islands or fast lands located within
such waters. Title to islands remains in the United States, unless expressly
granted along with the stream bed or otherwise.” Texas v. Louisiana, 410 U.S.
702, 713 (1973). It is to be expected that the Court will continue limiting the
equal footing doctrine to submerged lands that have specific and traditional
ties to sovereignty, as explained in United States v. Oregon: “Dominion over
navigable waters and property in the soil under them are so identified with the
sovereign power of government that a presumption against their separation
from sovereignty must be indulged, in construing either grants by the
sovereign of the lands to be held in private ownership or transfer of sovereignty
itself.” United States v. Oregon, 295 U.S. 1, 14 (1935).
Lower courts have likewise rejected application of the equal footing
doctrine to uplands. The Ninth Circuit holds that differences in public land
holdings among the states do not implicate equal footing because there is no
corresponding inequality of "political rights and sovereignty." United States v.
Gardner, 107 F.3d 1314, 1319 (9th Cit. 1997); see also United States. v. Luppi,
No. 98-1475, 1999 WL 535295, at *5 n.5 (10th Cir. July 26, 1999) ("[t]he equal
footing doctrine does not apply even to lands underlying non-navigable waters,
let alone to dry lands within a national forest") (citation omitted).
V.

Economic Equality

Beyond question, the United States’s retention of extensive land
holdings in the western states results in economic inequality in comparison to
eastern states. In the eastern states, the majority of lands are in private
ownership. Private ownership typically results in greater resource use and
economic development and provides a broad base for state and local property
taxation. Western states, on the other hand, have a much smaller tax base and
economic development and resource use of federal lands is limited. Local
governments typically provide law enforcement and other services on federal
lands with no ability to recover such costs aside from voluntary federal
contributions, such as federal Payments in Lieu of Taxes and the Secure Rural
Schools Program.
The economic impact of retained federal ownership, however, is not
likely to prove a viable cause of action for claims of state ownership of public
lands under equal footing and equal sovereignty principles. Almost any action
by Congress, whether to establish military bases, improve transportation
infrastructure, subsidize certain farm products, reserve federal lands, or
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 regulate commerce, may spur taxable economic activity in some states and
restrict it in other states. If courts were to require congressional actions to have
identical impacts on state taxation across the states, Congress would quickly
be rendered unable to exercise its delegated powers and “the principal object
of the framers of the instrument in conferring the power would be sacrificed to
the subordinate consequences resulting from its exercise. Wheeling & Belmont
Bridge Co., 59 U.S. at 434.
While the Court in Wheeling was addressing congressional actions under
the Commerce Clause, courts have applied similar reasoning to actions taken
under the Property Clause. In Nuclear Energy Institute, Inc. v. E.P.A., the court
of appeals, in reviewing Nevada’s challenge to establishment of a nuclear
waste depository, rejected Nevada’s argument that Congress’s decision “to use
federal property in a manner that imposes a unique burden on a particular
State” violated Nevada’s right to “equal treatment”:
Under Nevada's proposed requirement, each time Congress
decides to use federal property in a manner that incidentally
burdens a State – for example by designating such property for use
as a military installation, a prison, a dam, a storage or disposal
site, or a conservation area – it must formulate neutral selection
criteria and apply those criteria to every piece of federal property
in the Nation before selecting a site. Courts presumably would be
required to scrutinize the substantive basis of the legislation in
question to ensure that the criteria were genuinely neutral and
generally applied. This is far more intrusive than any requirement
that there be a rational basis for Congress's judgment that a
particular regulation respecting a particular property is “needful.”
The substantive constraint on legislation and the judicial role
implicit in Nevada's “equal treatment” requirement are, in our
view, totally at odds with the broad interpretation given to
Congress's Property Clause powers.
Nuclear Energy Inst., Inc. v. E.P.A, 373 F.3d 1251, 1308 (D.C. Cir. 2004).
The United States Supreme Court has also rejected state arguments that
federal retention of lands violates equal sovereignty principles if they work to
the state’s economic disadvantage. United States v. Texas involved a federal
challenge to state statutes claiming ownership of the lands under the Gulf of
Mexico for a distance of 24 miles past the three mile limit. United States v.
Texas, 339 U.S. 707, 720 (1950). The case turned on what the Court called the
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 “converse” application of the equal footing doctrine: the Court concluded that
the doctrine “prevents extension of the sovereignty of a State into a domain of
political and sovereign power of the United States from which the other States
have been excluded, just as it prevents a contraction of sovereignty (Pollard's
Lessee v. Hagan, supra) which would produce inequality among the States.” Id.
at 719-20. In extending its boundaries seaward, Texas’s primary objective was
to obtain title to the oil-rich seabed of the Gulf Coast. Thus, in reaching its
conclusion, the Court focused on the nature of the equal footing doctrine and
the relation of state sovereignty to lands and economic resources.
The Court first emphasized that principles of state equality have “long
been held to refer to political rights and to sovereignty” and do not, “of course,
include economic stature or standing. There has never been equality among
the States in that sense.” Id. at 716. The Court acknowledged that the differing
amounts of federal lands within the various states, along with factors such as
“[a]rea, location, geology, and latitude have created great diversity in the
economic aspects of the several States. The requirement of equal footing was
designed not to wipe out those diversities but to create parity as respects
political standing and sovereignty.” Id.
As in Stearns, Light, and other cases, the Court distinguished federal
retention of public lands from federal actions that affect a state’s political
standing or sovereignty. With reference to land, the Court again found that the
only lands that directly impact state sovereignty are the “shores of navigable
waters and the soils under them” because “[d]ominion over navigable waters
and property in the soil under them are so identified with the sovereign power
of government that a presumption against their separation from sovereignty
must be indulged, in construing either grants by the sovereign of the lands to
be held in private ownership or transfer of sovereignty itself.” Id. (quoting
United States v. Oregon, 295 U.S. 1, 14 1935). Because the marginal seabed
was not associated with state sovereignty but rather was associated with the
United States’s regulation of foreign commerce, the waging of war, the making
of treaties, and defense of the shores, the lands, which had been owned by the
Republic of Texas, passed to federal ownership upon Texas’s admission, even
if such ownership worked an economic hardship upon the state. Id. at 718.
Subsequent cases expanded upon the notion that equal footing does not
guarantee states economic equality. In United States v. Gardner, the court
concluded that the differing amounts of federal lands “may cause economic
differences between the states [but] the purpose of the [e]qual [f]ooting
[d]octrine is not to eradicate all diversity among states but rather to establish
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 equality among the states with regards to political standing and sovereignty.”
United States v. Gardner, 107 F.3d 1314, 1319 (9th Cir. 1997). The court thus
concluded the equal footing doctrine does not apply “to economic or physical
characteristics of the states [and] applies primarily to the shores of and lands
beneath navigable waters, not to fast dry lands.” Id.; see also United States v.
Medenbach, No. 96–30168, 1997 WL 306437, at *3 (9th Cir. June 6, 1997) (“the
equal footing doctrine is not implicated by the fact that the State of Washington
may have within its boundaries more land subject to federal control than do
the original thirteen states”); United States v. Risner, No. 00-10081, 2000 WL
1545491, at * 1 (9th Cir. Oct. 17, 2000) (“Neither the Supreme Court nor this
court has ever held that the equal footing doctrine insures equality between
the States with respect to property beyond those lands under navigable
waters.”); Nevada ex rel. Nev. State Bd. of Agric. v. United States, 512 F. Supp.
166, 171 (D. Nev. 1981) (stating that while passage of Federal Land Policy and
Management Act had disproportionate impact on Nevada due to its large
federal land holdings, “[f]ederal regulation which is otherwise valid is not a
violation of the ‘equal footing’ doctrine merely because its impact may differ
between various states because of geographic or economic reasons”).
VI.

Political Equality

The equal footing and equal sovereignty doctrines embrace the precept
that each state is “equal in power, dignity, and authority” and that a state's
sovereign power may not be constitutionally diminished by any conditions in
the acts under which the state was admitted to the union. Conditions imposed
by Congress at a state’s admission cannot “operate to restrict the State's
legislative power in respect of any matter which was not plainly within the
regulating power of Congress.” Coyle, 221 U.S. at 574.
Principles of state equality forbid Congress from placing a state “upon a
plane of inequality with its sister states.” Id. at 566. States must be admitted
“with all of the powers of sovereignty and jurisdiction which pertain to the
original states, and … such powers may not be constitutionally diminished,
impaired, or shorn away by any conditions, compacts, or stipulations embraced
in the act under which the new state came into the Union, which would not be
valid and effectual if the subject of congressional legislation after admission.”
Id. at 573.
States with significant federal land holdings are not shorn of any powers
possessed by states with fewer federal holdings because the balance of state
and federal authorities over federal lands is ensconced in the Constitution
45

 itself and is not dependent upon the terms of admission and enabling acts.
Because the Property Clause empowers Congress to retain and manage federal
lands, the exercise of such authorities does not affect the “dignity or power” of
the state. With regard to federal lands, each state’s “dignity and power” are
equally fixed by the Constitution, and each state is guaranteed equal authority
over such lands. In short, while there is great diversity in the amount of federal
land holdings in the individual states, with significant disparities in practical
and economic impacts, there is no diversity with regard to state authorities
and powers over federal lands.
Nor do federal land holdings in the western states violate the principle
of equal apportionment. A person’s right “to participate on an equal footing in
the election process” is violated only when that “person's vote is given less
weight through unequal apportionment.” Hadley v. Junior Coll. Dist. of Metro.
Kansas City, Mo., 397 U.S. 50, 54-55 (1970). Western states are each
represented by two senators, the same as eastern states with few federal land
holdings. Likewise, the representation of the western states in the House of
Representatives is based on population, so that the weight given to the vote of
a person living in a western state congressional district is roughly proportional
to the weight given the vote of the resident of an eastern state congressional
district. See U.S. Dep’t of Commerce v. Montana, 503 U.S. 442, 459-60 (1992)
(constitutional standard is "equal representation for equal numbers of people")
(quoting Wesberry v. Sanders, 371 U.S. 1, 18 (1964).
Some writers have suggested that extensive federal land ownership
impedes equal sovereignty because the western States are denied the right to
populate the public lands, thus placing them at a disadvantage in “the
Constitutional competition for national political power.” White Paper, at 64.
But demonstrating this to the satisfaction of a federal court may prove difficult.
Despite extensive federal land holdings, many western states have greater
amounts of private land within their borders than many eastern states. For
example, while 61% of Idaho is federal land, Idaho still has three times more
private land than Massachusetts. Yet, Massachusetts’s population is more
than four times greater than Idaho’s: as a result, it has nine congressional
representatives compared to Idaho’s two. While 48% of Wyoming is federal
lands, the remaining privately-owned acreage is over nine times greater than
in Connecticut. Nonetheless, Wyoming's population is one-sixth the size of
Connecticut's, and it has one congressional representative compared to
Connecticut's five. Despite federal land ownership of 29%, Montana has over
thirteen times the amount of private acreage than in New Jersey, but only one-

46

 eighth its population.9 In short, the differences in population between western
and eastern states, and their resulting differences in congressional
representation, are not the result of retained federal land holdings but are the
result of geographic and climatic factors that affect population density. Given
such facts, it is unlikely that a claim for state ownership of public lands could
be successfully based on allegations of political inequality.
VII. Conclusions
Equality of sovereignty is an important constitutional principle that can
help prevent federal intrusions upon the sovereignty and independence of the
states. Court precedents, however, provide little support for the proposition
that the principles of equal footing or equal sovereignty may compel transfer
of public lands to the western states. The Court has been given ample
opportunity to apply such principles to public lands but, when given the
opportunity to do so, it has repeatedly distinguished property issues as
independent from the “limiting or qualifying of political rights and obligations”
that may trigger additional scrutiny under equal sovereignty principles.
Stearns, 179 U.S. at 244-45. Equal sovereignty principles are intended to
“create parity as respects political standing and sovereignty” and are not
implicated by the fact that “[s]ome States when they entered the Union had
within their boundaries tracts of land belonging to the Federal Government”
while others did not. United States. v. Texas, 339 U.S. at 716.
Even if a court could be convinced to apply the equal sovereignty
principle to the great diversity among the states in federal lands holdings, the
principle is not an absolute bar to such diversity. Rather, the decisions in
Northwest Austin and Shelby County hold that discrimination among the
states can be justified if “a statute’s disparate geographic coverage is
sufficiently related to the problem that it targets.” Northwest Austin, 557 U.S.
at 203.

Statistical information compiled from Congressional Research Service, Federal
Land
Ownership:
Overview
and
Data
(2012);
World
Atlas,
http://www.worldatlas.com/aatlas/populations/usapoptable.htm (last visited June 17, 2015);
and http://statetrustlands.org/ (last visited June 17, 2015).
9

47

 Question #4: Do the respective state Enabling Acts (or Acts of
Admission) require the United States to divest itself of ownership of
the federal lands?
Potential arguments arising from state Enabling Acts or Acts of
Admission were not jointly analyzed by the Subcommittee but were instead
left to the province of each individual state in its discretion. An analysis of
potential arguments arising from an individual state’s Enabling Act or Act of
Admission necessarily hinges upon facts specific to that state’s admission into
the Union.

48