This land is whose land?

Don’t let them sell off our public land! Keep it open to the public! There is a lot of rhetoric, fears, misinformation and emotions being expressed over so called “public” lands. Today, people and groups are all fighting for control over something that each think is theirs.

So just whose land is it? A quick trip into history might help explain it. In the beginning, God created this fine little orb, so it is first and foremost His! Jumping through some millennia, the man that was here during the ice age exercised control over his hunting area, then Anasazi groups exercised controls over hunting and living areas. Later, various native tribes arrived on the scene and also fought each other for control of land areas for hunting and living. Long before the United States existed, Spain and then France had laid claim and control over what is Colorado today. So who “owned” the land?

Now back at the ranch, along came Jones – well, it was actually Congress who secured western territory from Mexico, Spain and France for the purpose of expanding and making more states to increase the size of the new United States for better security and economic growth, as per intent of the Constitution. Finally after several attempts during and after the Civil War, the State of Colorado was carved out of the secured foreign territories and established as a State in 1876. The Colorado Enabling Act authorized the Colorado pioneers to establish a new State and promised that the new State “shall be admitted into the Union upon an equal footing with the original states in all respects whatsoever, as hereinafter provided.” It then stated that “Said state of Colorado shall consist of all the territory included within the following boundaries,” and identified the boundaries as we enjoy today.

So now there was a land mass that was to be a state. Much of the lands in this new state had not yet been claimed by settlers or miners, so the “unappropriated” land needed to be disposed of on behalf of the state. Some of the land managed to be disposed of under federal land grants like railroad grants, grants to the state for schools, and under other disposal laws such as the Homestead Act. Other lands were still held by the government and we call these lands “public lands.”

But the government has no authority to hold on to lands it got from foreign countries such as Mexico and France. Thomas Jefferson said as much: “The Constitution has made no provision for holding foreign territory, still less for incorporating foreign nations into our Union.” The only powers the federal government has are those that the states gave to it. With regard to land, the power given to the government under the fourth article of the Constitution is the “power to dispose” of them. The Constitution is the people’s law and the supreme law of the land. Congress can’t do the opposite of what it is empowered to do because that would be rebelling against the people’s law.

So this debate over ownership of Colorado’s public lands really boils down to these questions. Are we going to expect Congress to obey the law? Our elected officials swore an oath to support and defend the Constitution. Are they going to honor that oath and demand that Congress do its Constitutional duty and dispose of the public lands in this state? Should the lands be disposed of to private parties by sale or grant, or should they be granted to the State of Colorado where they can be maintained as “state public lands”?

Now, 141 years after Colorado statehood, there is a myriad number of nontaxpaying groups and others claiming the “public ” lands of the state, now belong to them! We see “Don’t sell our wilderness,” “Don’t sell our hunting lands and rights,” “Don’t destroy our lands with drilling and fracking,” etc. Whoa! How did this happen? When did these people get title and right to the states’ public lands? How come the rest of us don’t have any title or right to these lands?

In 1894, the U.S. Supreme Court said that these public lands were held “in trust for the several states to be ultimately created out of the territory.” But in 1976, the feds decided to ignore the Supreme Law and keep the states’ public lands. Subsequently there have been numerous unconstitutional laws passed that affected those lands for themselves. Every diverse segment of the public sees the land as “theirs” and only they have a right to them, as long as they don’t have to pay tax and be responsible for them.

So who owns the “public” lands? Certainly not the Wilderness Society, or Sierra Club, or Center for Biodiversity. If you believe in the Constitution and Rule of Law, the federal government cannot own them in perpetuity. The Creator “owns” them, and the local established government of state and county are the constitutional and legally recognized stewards of the lands and resources that were intended by the framers of the Constitution to be in control at this time in history. Good stewards manage the lands and resources for their health, and the benefit of all the local residents. Land and resource management and use cannot fall prey to special interests by “taking a vote” on what they want. They all want something different and obtaining a simple majority of “wrong” votes, will not make it “right.” Ownership is a question answered by the Constitution but the real issue today is regarding the stewardship, management and local control for local benefits of the states’ public lands.

Dexter Gill is a retired forest manager who worked for private industry, three Western state forestry agencies, and the Navajo Nation forestry department. He writes from Lewis, Colo.

From Dexter Gill, March 2017.