About That Public Land In Nevada

by Al Benson Jr.

The day after I posted my last article on the situation at the Bundy Ranch in Nevada, a man in North Carolina sent me a link to a legal case, U.S. v. Gardner, NO. CV-N-95-328-DWH. which was posted on http://www.leagle.com dealing with a case similar to that of the Bundy family.

It contained some interesting information and I’d like to quote a couple things: “On March 21, 1864, the United States Congress enacted the Nevada Statehood statute which authorized the residents of Nevada Territory to elect representatives to a convention for the purpose of having Nevada join the Union.” Among the provisions of the Statehood Act of March 21, 1864, this act granted “certain tracts of United States public lands to the State when it entered the Union…In addition, the Nevada Statehood statute  required the convention to adopt an ordinance decreeing and declaring that the inhabitants of the Territory of Nevada ‘forever disclaim all right and title to the unappropriated public lands lying within said territory…The Nevada Constitution provides  that this ordinance shall be irrevocable, without the consent   of the United States and the people of the State of Nevada’.” There’s more, but we could get bogged down in all the legal jargon and that’s sure not my long suit.  What it boils down to is that the folks in Nevada supposedly disclaimed any title to “unappropriated public lands lying within said territory…”In other words, the feds, way back in 1864, got to keep most of the land in Nevada and the people of that “state” promised not to contest that sticky little fact. Sounds like a bum deal, doesn’t it? It was (and still is).

We have to bear in mind why the big push for Nevada to become a state in 1864. The rule used to be that, for a territory to become a state, it had to have a population of 60,000. Nevada had something like 40,000, but Nevada was pushed ahead of other candidates for statehood. If you’re like me, with a suspicious  mind, you might be tempted to wonder why. The site http://www.onlinenevada.org in an article on the 29th of October, 2009, observed: “As the 1864 presidential election approached there were certain perceived advantages in having an additional Republican state. For one thing, a Republican congressional delegation could provide additional votes for the passage of the Thirteenth Amendment to abolish slavery, which earlier had narrowly failed to garner the necessary two thirds support of both houses of Congress.  More overriding, however, at least in the spring of 1864  was the real fear that there might be three major candidates running for President that year, and that no party could achieve a majority of electoral votes. Then, as required by the United States Constitution, the election would go into the House of Representatives, where each state would have only one vote and where a Republican Nevada would have voting rights equal to those of populous New York or Pennsylvania.” To put it bluntly, getting statehood for Nevada was a political move to help Lincoln win the election.

And seeing that it was the Lincoln administration in office, with its collectivist, centralizing mindset, you can see why provisions allowing the federal government to hold onto most of the land in Nevada, with no recourse by the people of that state, were part of the deal. So the feds let Nevada in as a state to boost Lincoln’s election chances, while retaining control of 88% of the land in the state. Such a deal! Even Wikipedia noted that: “Statehood was rushed to help ensure three electoral votes for Abraham Lincoln’s re-election and add to the Republican congressional majorities.”

Interestingly enough, http://www.nevadaweb.com states that “Nevada Territory was a federal territory, a part of the Union, and President Abraham Lincoln appointed Governor James Warren Nye, a former Police Commissioner in New York City, to ensure that it stayed that way. Governor Nye put down any demonstration in support of the Confederacy, and there were some.” So they weren’t all Yankee/Marxists in Nevada.

You can see by reading some of this, that the current land problems in Nevada go all the way back to the Lincoln administration. For those that follow history, at least accurate history, are you really surprised? I’ve said, over the years, that many of the problems we still deal with today are a result of the Lincoln administration and its War of Northern Aggression.  The current situation in Nevada is a prime example.

I recently read a very good article by Steve Miller on http://www.zianet.com entitled Nevada: The Permanent Colony which dealt with the Sagebrush Rebellion I mentioned in my last article. Mr. Miller made several observations worth noting. If you can find this article on the Internet I’d recommend reading it.  Mr. Miller noted that Nevada Territory had too few people to meet requirements for statehood. This made no difference whatever.  Union and pro-Lincoln activists set up constitutional conventions anyway to try to get Nevada into the Union in 1863.  That attempt failed, so they came back again in 1864–so typical of the socialist agenda–if you lose, keep coming back and back until you wear down the opposition. At this point, I’d ask–if they didn’t have enough population to qualify, are they really, technically a state? They weren’t admitted under the required conditions.

Mr. Miller stated: :”Also, Lincoln needed two more loyal Unionist votes in the U.S. Senate, where the Thirteenth Amendment waited to be passed.  Nevada’s admission would give him the three-fourths majority needed for a measure largely designed to help break the South…So Nevada had become a state, but it was only in a negligible sense.  For all practical purposes, Nevada remained essentially a territory ruled by those who dominated the federal government.”

And now comes the bombshell!

According to Steve Miller: “As part of the enabling legislation, Congress imposed conditions on the state that the Supreme Court, 19 years before, had already declared illegal, citing the U.S. Constitution’s guarantee that new states should have ‘equal footing’ with the original thirteen. Under Nevada’s 1864 enabling act conditions, the people of the territory had to ‘forever disclaim all right and title to the unappropriated public lands lying within said Territory,’ and turn them over to the federal government.” A great deal–but for who? Certainly not the people of Nevada.

Miller’s narrative continued: “But in 1845 the U.S. Supreme Court, in Pollard vs. Hagan, a case dealing with the admission of Alabama to the Union under almost identical language, had held that such conditions were in violation of the U.S. Constitution and therefore void.” The Court said: “We think the proper examination of this subject will show that the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama or any of the new states were formed; except for temporary purposes…As soon as new states were formed out of the territory, ‘the power of the United States over these lands and property was to cease’.”

I submit, this is something to think about in the case of Nevada and all the many public acres the federal government controls there whereby they are setting out to deny the inhabitants of Nevada the use of public land–which the feds shouldn’t even control.

Does what has gone on in Nevada and other Western states sound a little like a federal land grab? If all the states agreed to abide by this 1845 Supreme Court decision, you would hardly need something like the BLM there to harass citizens. This is an aspect of this situation that ought to be considered by someone with legal training.  Mr. Bundy may well have a point when he refuses to recognize federal control over much of his state.  And remember, this problem goes back to Lincoln and his Marxist hoard. Something to think about.

7 thoughts on “About That Public Land In Nevada

  1. NO one is remembering the REAL history (everyone always keeps going back to DC percieved ‘history’ and actions – actions that were Treason to begin with thus null and void) and the REAL reason for Fedreal land grabs – DC never paid the CSA for Nevada or any of their other territories ( NM, AZ, Colorado,Montana, Delaware, Southern Calif) and NEVADA IS STILL A CSA TERRITORY AND DOES NOT BELONG TO DC AT ALL – NOT ONE INCH OF IT ! If Vance was still with us he’d straighten the REAL history out fast ! No one knew our TRUE actual history in detail like he did ! The history you never read about in ANY history book !

  2. Over the course of it’s history, the Republican party has probably been worse for America than the dems.

    On a related note, it would be interesting to see a list of all the illegal actions, such is Nevada’s admission, that have been perpetrated since 1798.

  3. Pingback: Is Nevada Legally A State? | NC Links

  4. Pollard vs. Hagan sounds like valuable debate ammo. Thanks!

    The US post-war has no legitimacy. It’s an entirely new polity that feigns to be the old, so this doesn’t surprise me. So much of what’s done today would have been viewed as blatantly illegal pre-war.

    I don’t think Lincoln was a socialist though. If anything, the North was corrupt because it was a merchant society, capitalist. The South was agrarian: farming better encourages virtue. Today, with different technology, we have few farmers.

  5. Al, I know this is old, but you have incorrect information. Steve Miller got it wrong and so have you. Pollard vs. Hagen is specifically about title to lands below the high water mark of navigable waters. It has nothing to do with the authority of the Congress to put conditions like the one that appeared in the Nevada Statehood Act and the Nevada Constitution at statehood. This didn’t start with Nevada. It started with Ohio and the other new states created after independence. The reason that there is almost no federal public land in the eastern states is because it was such good land that it was all purchased or claimed from the federal government by private individuals.

    Given the tenor of your article, I’m not sure you’re interested in knowing what the mainstream Constitutional interpretation is or about the the laws and cases which determine the federal governments authority to own and manage land. In case I’m wrong, here are two links.

    CONAN – Constitution Annotated – This is a publication of the Library of Congress which includes the whole United State Constitution annotated with the major court decisions which have specified the interpretation of each clause in the Constitution. This is important because, since the federal legal system is based on English common law, precedents have to be respected unless they can be argued to be fallacious, which doesn’t happen very often. Since the Constitution was ratified, there have been about 225 years worth of cases which affect what the Constitution is held to mean. Here’s the link:


    Federal Land Ownership: Constitutional Authority and the History of Acquisition, Disposal and Retention, Congression Research Service, Dec 3, 2007 – Please see the reference to Pollard vs. Hagen (properly called Pollard’s Lessee v. Hagan) on page 6.

    Click to access RL34267.pdf

    The second document makes clear that the way Nevada was treated is identical to the way that all new states have been treated since The Northwest Ordinance of 1787, the only law passed under both the Articles of Confederation and the new United States Constitution.

    For a more detailed history of law related to public lands, the bible is Federal Public Land and Resources Law by Coggins and Wilkinson, but it’s very pricey, since most buyers are lawyers. It’s available on Amazon for $179 (used).

    I hope you find this information helpful.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s