Who Owns Western Public Lands?

Conflicts in the southeastern corner of Nevada in 20214 centered around the question of who owns public lands.

First and foremost, we should keep in mind that public lands and government-owned lands are two different things. Public means of, by, and for the people. Public land belongs to the people—not to a monarch, and not to a far-off governments or governmental bodies.

Who should decide how public lands are used? Certainly those people who have lived locally and who have been established for generations have a far more legitimate interest in how public lands should be used and how public resources should be allocated than a handful of distant bureaucrats.

Unfortunately, the meaning of the word public has shifted over the years. Nowadays we have public schools—meaning schools that are owned and controlled by the government. In England, public schools, however, are schools that are privately owned. So, originally public meant belonging to the people—as opposed to being owned by a monarch or by a government.

As societies become corrupted, meanings of words shift. This is by design. Orwell wrote about how corrupt governments purposely corrupt language in order to usurp power and extend their control. See especially chapters 4 and 5 of his famous book, 1984, where he describes the abominable principles of Newspeak.

We Americans have been conditioned to believe that all public lands in the United States are owned and should be controlled by federal agencies centrally located in Washington, D.C. This idea is a very wrongheaded idea and one that is dangerous to our most basic freedoms.

A righteous, free, and benevolent society will always have great respect for local customs as well as for the private ownership of property. In times past, our federal government has often failed to respect established, local customs. But the federal government used to at least pay lip service to the idea of local customs and individual property rights.

At the conclusion of the Mexican-American War, the federal government of the United States formally signified that ownership of property in lands ceded by Mexico to the US would not change. A commenter to a recent article regarding the Cliven Bundy affair in Bunkerville, Nevada posted the following explanation.

“The relevant treaty is the Treaty of Guadalupe Hidalgo (1848), which concluded the Mexican-American war. What does it say about title to (i.e. property in) land? To the extent it talks about title (i.e. property in land) at all, rather than transferring any 'property' rights to the United States, it confirms the property of existing owners! See Article VIII: 'In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States.'

"Search as you may, you will not find one sentence in that treaty transferring title or ownership of one square inch of land to the United States. The Treaty of Guadalupe Hidalgo was peace treaty, and as such it merely adjusted the jurisdictional boundaries between the two belligerents. It was transfer of jurisdiction; no transfer of property was involved. According to the international law of 1848, neither cession nor conquest conferred title (i.e. a property interest) in the conquered land on the conquering sovereign. What the conquering power acquired is jurisdiction (hint: the U.S. federal government doesn’t own us or our land, it merely exercise jurisdiction over both). The U.S. government’s claim to title is built instead on its massive, systematic, and intentional seizures of land in, violation, of its treaty obligations, international law, and incidentally the constitution. The last time in human history when mere conquest conferred on a conqueror both jurisdiction (imperium) and property (dominium) was in antiquity. The Roman republic, e.g. obtained title over both the moveable and immoveable property as well as the persons of the conquered, meaning it could enslave them. This doctrine, however, has NOT formed part of international law for at least a millennium.”

The poster, who posted under the moniker Menschenrechte, makes an important point when he alludes to the fact that American law is not based on brutal, dictatorial, anti-freedom Roman law but rather on divine laws originally handed down to prophets among our ancient forebears by God himself, then shaped over thousands of years by Anglo-Saxons into English common law, and more recently codified into the law of the land as the Constitution of the United States.

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Note: The post by Menschenrecte appeared at www.washingtonsblog.com on 14 April 2014.  

Orem, Utah—January 19, 2021—©2021 Daniel Kemper Lubben