Do you always obey all the laws of the land? When you do obey a law you voluntarily do so, usually on fear of prosecution of being caught, right? Did you know that the Supreme Law of the Land, the Constitution, has no penalty clause for enforcement and prosecution of those violating it? John Adams stated “Our Constitution was made for a moral and religious people. It is wholly inadequate to the government of any other”. Uh-oh, Houston we have a problem. With those new Congressmen taking an oath to uphold and protect the new Constitution, it was understood that they were moral and religious (believed in God) so could be trusted to voluntarily comply with the new Supreme Law. Later, with new faces in Congress, there was at least one area of the Law that has been voluntarily violated repeatedly with no consequences to the perpetrators. That was in the formation of new states into the new union and the lands and resources therein.
The story begins in 1776 with the Declaration of Independence by the 13 Colonies, where they stated “These United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES…”. Each new state was declaring it to be an independent, sovereign state/country. Prior to this time, the British monarch had claimed lands called “Crown Lands” west of the Appalachian mountains to the Mississippi River, and from the Canadian border in the north to the northern border of Spanish Florida in the South. At the onset of the Revolution, seven of the then-declared sovereign states asserted claims to portions of the unappropriated Crown lands, with some of the claims overlapping with other states, thus creating contentious issues. The Continental Congress developed the Articles of Confederation to unite the 13 sovereign States together. The articles were approved by the Congress and by 1779, signed by all except Maryland, which was small and did not have access to lay claim to any of the Crown lands. They feared the now-larger states would have access to greater wealth and population and would eventually dominate the affairs in the new Confederation. Smart thinking! How to save the new Confederation of states?
To resolve the issues and save the Confederation, in 1780 the Congress passed several resolutions, which were not enforceable, but would rely upon trust and voluntary compliance. The key to settling the issues was to have the states with now Crown land claims to cede portions of those lands to the Congress to dispose of the territory by establishing new states from them. The new states were to become part of the new federal union; be settled as republican states; have the same rights, sovereignty, freedom and independence as other states (i.e. equal footing); lands were to be granted and disposed of for common benefit of all members and granted and settled under regulations to be agreed upon by the Congress. There was NO provision for indefinite retention of these territorial or public lands under any federal title or governance by the federal/municipal entity. The lands were to be disposed of by issuing titles. With these promises, Maryland signed and the Articles of Confederation were fully ratified in 1781. By 1783 the Revolution was over and building of the new Confederation of States began.
The creation of new states from the old Crown lands had begun with the states with Crown land claims agreeing to cede portions turning those lands into new “territories” to be disposed of. In 1785, the Congress passed “An Ordinance for ascertaining the mode of disposing of Lands in the Western Territory”, which resulted in the beginning of our land survey system. There were four territorial areas that were identified and by 1787 Virginia offered to cede a very large portion of its claim north and west of the Ohio River. The resolution accepting this offer was the Northwest Ordinance of 1787, which also established the rules for disposal of all the territorial lands by establishing new states with the same and complete sovereignty, freedom, self- governance and security of personal property rights as all the original 13 states. The federal involvement was to be only temporary. Those rules became the foundation for how the new federal Congress would deal with and dispose of ALL currently new and future territorial lands. When developing the Constitution, new states that would be developed from any new territories obtained, would be entitled to the same measure of complete sovereignty as the original states under the Equal Footing Doctrine.
The new confederation of states was developed by all entities [[voluntarily complying with the rules of the compact developed under the Northwest Ordinance of 1787, principles of which were also later included in the Constitution as Article IV, Section 3, Paragraph 2. As new territories were secured further west, issues leading to the Civil War were arising, resulting in delaying the forming of any new states due to political concerns for power and control of lands and wealth.
After the war, as new western states were finally being formed, the eastern powers ignored the Supreme Law of the Land, the Constitution with its specific and clear rules relating to territories, states and the purpose of the federal body. Since the Constitution had no penalty clause for violating it, those in power ignored and evaded the Supreme Law, resulting in the “Equal Footing Doctrine” being violated in the western states by not fully disposing of the lands of the new states, to the states. Contentious issues of control, economies and land and resource management have resulted. The western “states” are not states at all, but are simply federal subdivisions controlled/ governed by the growing federal “state” as it lays claim to more lands and wealth, dominating the affairs of the 12 western states, the very issue that Maryland feared 238 years ago. We must dust off the Northwest Ordinance of 1787 and Constitution and voluntarily re-implement them to correct past violations for a brighter future.
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.