I helped provide documentary research for this claim. The land is not a federal enclave. It is part of the state and general state laws apply to persons on it. Only some Indian lands and certain lands in Alaska were actually reserved from state boundaries as federal enclaves in the West.
“Public lands” by definition used in Supreme Court cases, are lands surveyed and “open for disposal” into private hands under various homestead acts.
If you look at the Taylor Grazing Act (1934?) you will see language referring to the federal management of the land until final disposal (by homestead or similar act.) It was not until FLPMA in the 1970s when the federal government declared its intent to retain ownership of the “public lands.”
East of the Mississippi, the federal government received cessions of title from the original states of their “western wastelands.” These were to be surveyed and sold to pay the mutual revolutionary war debt as a condition of agreeing to the new federal Constitutional government. All of these lands were sold into private hands. National Forests in the east were created by donation or purchase.
West of the Mississippi, lands were acquired by prescription - acts of discovery, occupancy and continued beneficial use. This was a universal acquisition method under Roman/Mexican law also used for mining. It was formalized by the Homestead Acts.
The land patent is a tribunal judgment by the Bureau if Land Management and its predecessor that the claimant had shown in state processes that he had the better right (if contested) and that there were no treaty obligations - international or Indian, that had claim on the land. It is not title but evidence of title. What the feds did was to reserve land for forest reserves from the homestead and patent process for itself. In doing so, it violated the fiduciary trust it had in holding the lands for the people of the state pending final disposal. There has been one mining case I know of that forced the federal government into a patent process that it had been withholding.
The conditions found in enabling acts have been found to have no force on subsequent state legislatures. One required a state capital to be located in a certain place and the legislature was able to decide otherwise. The only part that would apply is that the Commerce Act reserves the ability to treat with tribes to the feds and international treaties also would have precedence supporting the continuing patenting authority.
The practice of holding vast federal properties in the western states is obscene and renders western states to a second class status. In effect, natural resource/land management decisions on a huge amount of western land is being decided by all 50 states. Living in Forest or BLM communities can be pure hell. It is fundamentally wrong that the these kinds of decisions that so intimately effect the economies of the west should be decided by people with no substantial stake in these decisions.
Do you have evidence of the federal government transferring, with the exception of Hawaii, all or even a major part of public lands to state ownership?
That’s what is being claimed as a right by this article. Your comments are a nice general summary, but they involve transfer of title to private ownership, not to the states.
It is possible to make a historical and constitutional argument that the federal government should open public lands back up for private purchase. That’s very different from claiming that state governments have some right to title to the land. AFAIK, that has never been the case.
Well said. I concur.