Ed Presley is wrong, as is Bundy, and as was Gardner:
““II. The Equal Footing Doctrine
19 Gardners argue that, under the Equal Footing Doctrine, a new state must possess the same powers of sovereignty and jurisdiction as did the original thirteen states upon admission to the Union. Because the federal government owns over eighty percent of the land in the state of Nevada, Gardners argue, Nevada is not on an equal footing with the original thirteen states.3 Gardners claim that Nevada must have “paramount title and eminent domain of all lands within its boundaries” to satisfy the Equal Footing Doctrine.
20 The meaning of the Equal Footing Doctrine is discussed in Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845). In that case, the Supreme Court held that the shores of and land beneath navigable waters were reserved to the states, and were not granted by the Constitution to the federal government. Id. 44 U.S. (3 How.) at 229. New states, the Court reasoned, have the same “rights, sovereignty, and jurisdiction” over the shores of and land beneath navigable waters as do the original states. Id.4
21 However, the Supreme Court has declined to extend the Equal Footing Doctrine to lands other than those underneath navigable waters or waters affected by the ebb and flow of the tides. In Scott v. Lattig, 227 U.S. 229, 244, 33 S.Ct. 242, 244, 57 L.Ed. 490 (1913), the Supreme Court held that title to an island within a stream did not pass to the state of Idaho, but instead was retained by the United States. The Court stated that because the island “was not part of the bed of the stream or land under the water ... its ownership did not pass to the State or come within the disposing influence of its laws.” Id. The Court went on to note that the island was “fast dry land, and therefore remained the property of the United States and subject to disposal under its laws....” Id. Sixty years later, the Supreme Court characterized its decision in Scott as holding 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, 93 S.Ct. 1215, 1221, 35 L.Ed.2d 646 (1973). The Equal Footing Doctrine, then, does not operate to reserve title to fast dry lands to individual states.
22 Moreover, Supreme Court has long held that the Equal Footing Doctrine refers to “those attributes essential to [a state’s] equality in dignity and power with other States.” Coyle v. Smith, 221 U.S. 559, 568, 31 S.Ct. 688, 690, 55 L.Ed. 853 (1911). The Court has noted that a new state enters the Union “in full equality with all the others,” and that this equality may forbid a compact between a new state and the United States “limiting or qualifying political rights and obligations.” Stearns v. Minnesota, 179 U.S. 223, 245, 21 S.Ct. 73, 81, 45 L.Ed. 162 (1900). However, “a mere agreement in reference to property involves no question of equality of status.” Id. The Court has observed that “[s]ome States when they entered the Union had within their boundaries tracts of land belonging to the Federal Government; others were sovereigns of their soil.” United States v. Texas, 339 U.S. 707, 716, 70 S.Ct. 918, 922, 94 L.Ed. 1221 (1950). While these disparities may cause economic differences between the states, the purpose of the Equal Footing Doctrine is not to eradicate all diversity among states but rather to establish equality among the states with regards to political standing and sovereignty. Id.
23 The Equal Footing Doctrine, then, applies to political rights and sovereignty, not to economic or physical characteristics of the states. Moreover, the Equal Footing Doctrine applies primarily to the shores of and lands beneath navigable waters, not to fast dry lands. Therefore, the Equal Footing Doctrine would not operate, as Gardners argue, to give Nevada title to the public lands within its boundaries.
III. The Validity of Nevada’s “Disclaimer Clause”
25 When Congress invited Nevada to join the Union in 1864, it mandated that the Nevada constitutional convention pass an act promising that Nevada would “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States....” Nevada Statehood Act of March 21, 1864, 13 Stat. 30, 31 § 4. The state constitutional convention did so. Ordinance of the Nevada Constitution.5
26 Gardners claim that this clause is invalid and unconstitutional as an attempt to divest Nevada of its title to the unappropriated lands within its boundaries. Gardners cite to Van Brocklin v. Tennessee, 117 U.S. 151, 167, 6 S.Ct. 670, 679, 29 L.Ed. 845 (1886) for the premise that such disclaimer clauses “are but declaratory, and confer no new right or power upon the United States.” Therefore, Gardners argue, Nevada could not have given the United States title to the public lands within its boundaries through the disclaimer clause.
27 Gardners are correct in their argument that the disclaimer is declaratory. However, the United States did not need the disclaimer clause to gain title to the public lands in Nevada. The United States already had title to those lands through the Treaty of Guadalupe Hidalgo, and the disclaimer clause was merely a recognition of the preexisting United States title, as opposed to a grant of title from Nevada to the United States.
28 As aforementioned, Congress’ power under the Property Clause to administer its own property is virtually unlimited. See, e.g., Kleppe, 426 U.S. at 539, 96 S.Ct. at 2291-92. Indeed, the United States retains title to the public lands within states such as Nevada not due to “any agreement or compact with the proposed new State,” but rather “solely because the power of Congress extend[s] to the subject.” Coyle, 221 U.S. at 574, 31 S.Ct. at 693. The disclaimer clause, then, is declaratory of the right already held by the United States under the Constitution to administer its property, and as such is valid under the United States Constitution. Van Brocklin, 117 U.S. at 167, 6 S.Ct. at 679.”
US V. Gardner, 107 F.3d 1314 (1997)
Notice many of the court cases cited go back to the early 1900s and 1800s. This is not some new legal theory pushed by liberal judges in the 1990s. This has been established law for well over 100 years.
Scott v. Lattig, 227 U.S. 229 (1913) said:
“But the island, which we have seen was in existence when Idaho became a state, was not part of the bed of the stream or land under the water, and therefore its ownership did not pass to the state, or come within the disposing influence of its laws. On the contrary, although surrounded by the waters of the river and widely separated from the shore, it was fast dry land, and therefore remained the property of the United States and subject to disposal under its laws, as did the island which was in controversy in Mission Rock Co. v. United States, 109 F. 763, 769-770, and United States v. Mission Rock Co., 189 U. S. 391.”
US title to dry land remained in effect when Nevada became a state, just as it does with every other state.
Good summary. One thing that has changed is the policy of the federal government on the so called unallocated lands that they own. Until 1976, the policy was disposal through sale or grant of these public lands. In the arid West, these sales and grants did not proceed as they had done in the East. No one rushed in to scoop up the land, particularly in the acreage prescribed by law. 160 acres in the midwest could sustain a family, but not so in the American deserts.
U.S. policy changed in 1976 from disposal to retention and a new law, the Federal Land Policy and Management Act was put in place to implement that policy. That act, plus the Endangered Species Act and the Environmental Protection Act have been used to throw people off their land, to stop grazing on public lands, and to control every aspect of human behavior on public lands.