The Cliven Bundy Saga: How Congress Snatched The Power To Claim Lands

James Madison’s right hand man at that convention, George Nicholas, got into a heated debate with Patrick Henry over the question of Congress abusing the Article IV power to regulate territories by grabbing “western lands” for a yet unspecified use. Nicholas said this was not possible because

“as to the territory of the United States, the power of Congress only extended to make needful rules and regulations concerning it… that the grant of those lands to the United States was for the general benefit of all the states.”5

This is a clear and direct reference in the first tense to the Northwest Territory. But, if there remains any doubt, on Wednesday, 18 June, 1788 Colonel William Grayson pushed Nicholas on the President and Senate’s power to make treaties. That the power might be adjoined to the Article IV power over treaties and thus a majority of 3/4 of the Senate could conspire to grab land for their own benefit that might benefit a state adjoined to the territory in question. Grayson bought Nicholas’s explanation and stated to the convention his understanding that the Territory clause “…related solely to the back lands claimed by the United States and different states. This clause was inserted for the purpose of enabling Congress to dispose of, and make all needful rules and regulations respecting, the territory, or other property, belonging to the United States.”6 Before Grayson closed his remarks he reiterated what the Federalists were assuring the Convention about the Article IV Territory clause.

“Its sole intention was to obviate all the doubts and disputes which existed, under the Confederation, concerning the western territory and other places in controversy in the United States.”

In other words, the Northwest Territory would have to be included in the new union’s charter because the member states of the new compact, The Constitution, had already agreed to an equitable distribution of that land. This should answer the question of why Congress was granted a territory power in the Constitution, it clearly was, and, like the other enumerations, the power was limited and specifically was meant to apply to the Northwest territory. I must now offer a disclaimer to the reader that your humble correspondent has reached the same conclusion on the intention of the territory power reached by Justice Taney in the infamous Dred Scott v Sanford case. Taney’s decision, properly read, was not entirely based upon race, but was based upon the observations made above over the extent of the power granted to Congress by Article IV’s “territory clause.” Taney wrote, in part.

“The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;” but, in the judgement of the court, that provision had no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign Government. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more.” 7

I could wrap up the discovery of the intent of the territory power there but let’s cite another Constitution caveat that reinforces the plain language and meaning of the Territory clause, the Thirteenth Amendment. That amendment was ratified on the 6th of December, 1865, after a years long struggle to gain it’s passage in Congress.

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

This is a key point to recognize. Taney had ruled Congress had no power to forbid slavery over the territories of the United States because they had no legislative power over those lands. The 38th Congress is recognizing this and granting that power through the 13th Amendment viz Taney’s definition of the Territory clause is correct. Another way to put this point is that if Congress did have an original, implied (as shown the power is not enumerated) power over all its Territories, there would be no need to include in the 13th Amendment the second instance where slavery was to be abolished i.e. “place[s] subject to their jurisdiction” and so that should be that. But, like an Apple press event hosted by the late Steve Jobs, “there’s one more thing.” The Constitution prohibited the States of the Union from acquiring land in Article I, Section 10 by a. treaty or compact with a foreign power or b. engag[ing] in war. This would seem to imply that the Federalists seeking ratification of The Constitution were being less than sincere in conceding such a narrow purpose for Article IV’s territory powers. Looking back on the names and reputations of Federalist leaders like Hamilton, Adams, Wilson and King, does that surprise anyone?

Given what we’ve just learned, how then could future Congresses claim the power to not only permanently own lands INSIDE any of the several states (excepting the enumerated powers cited previously) but regulate the agriculture and livestock activities that are at the heart of the Bundy dispute? Indeed, this is the question conspicuously missing from nearly all the Bundy saga’s media coverage and one that there is no quick and easy answer for, but there is an answer. The abridged story starts with the Homestead Act of 1862 that establishes some of the precedents Bundy is citing, namely the Pre-emptive Right to use the “public lands” to graze livestock. This use, like mining or farming is covered under what were called the “split-estate” property right which does not confer ownership but does confer usage. In 1890 the Supreme Court affirmed this policy in Buford vs Houtz 8.

GET BUNDY: Mike’s message to DeceptiCONS who threw Mr Bundy under the bus over his alleged “racism”

“We are of the opinion that there is an implied license, growing out of the custom of nearly a hundred years that the public land of the United States, especially those in which the native grasses are adapted to the growing and fattening of domestic animals, shall be free to people who seek to use them where they are left open and uninclosed and no act of government forbids this use…The government of the United States, in all its branches has known of this use, has never forbidden it, nor taken any steps to arrest it…. Congress by a system of laws called the Preemption Laws, recognized this right so far as to confer a priority of the right to purchase on the persons who settled upon and cultivated any part of this Public Domain”

The Court in Buford also left us this nugget which applies directly to the claim of cattle ranchers, like Cliven Bundy, who claim a historical use of the land AT NO COST.

“For many years past a very large proportion of the beef which has been used by the people of the United States is the meat of cattle thus raised upon the public lands without charge, without let or hindrance or obstruction. The government of the United States in all its branches has known of this use, has never forbidden it, nor taken any steps to arrest it. No doubt it may be safely stated that this has been done with the consent of all branches of the government, and, as we shall attempt to show, with its direct encouragement.”9

The ranchers who had dreamed of someday owning the “public lands” they were using were finally given some assurance that would happen and Western states could look toward a day when there would be no “public lands” owned by the Feds left in their states. The very next year, all this was permanently undone by what soon become a bad, constitutional habit, Congress would pick-up: transferring power to the Executive Branch that Constitutionally belonged in the House. The Forest Reserve Act of 1891’s infamous “Section 24” spelled out the terms of this de facto Article V Convention granting new powers to the President.

“That the president of the United States may, from time to time, set apart and reserve, in any state or territory having public land bearing forest, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations; and the president shall, by public proclamation, declare the establishment of such reservation and limits thereof.”10

So there you have it, an implied power, not enumerated by the Constitution, that was never intended to be used to anoint the Federal Government as the Monopoly Man of Western Lands, has done just that. Since this Act, Congress and the White House have kept themselves ingratiated to those who have designs for those lands, often times at the expense of the farmers and ranchers who have historically used them and there has been no effort to liquidate the lands per Buford ever since. In fact , in 1911 the SCOTUS in U.S. v Grimaud reversed their previous ruling in Buford. “Thus the implied license under which the United States had suffered its public domain to be used as a pasture for sheep and cattle, mentioned in Buford v. Houtz…was curtailed and qualified by Congress, to the extent that such privilege should not be exercised in contravention of the [1897] rules and regulations.” 11 I have had to leave many relevant details out in this essay because this story is so complicated and rife with the shady deals consummated and lives/ careers ruined as a result. I suggest for further reading, purchase a copy of William C. Heyward’s “How the West Was Lost” book available for online viewing here.