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Most Americans who live east of theRocky Mountains, or those who livein large urban/suburban areas in the

West, are surprised to learn that the federalgovernment “owns” or controls over 30 per-cent of the land area in the United States.Most of that land is in the western stateswhere over 50 percent of each state is federal“public land.” Rural residents who maketheir living from federal lands are findingthat Washington is enacting regulations thatseem more intent on bankrupting them than

helping them. An uninformed and/or pro-pagandized population in the East is com-plicit by default.

The strategy employs a time-tested toolmade famous by Nazi propagandist JosephGoebbels: “If you tell a lie big enough andkeep repeating it, people will eventuallycome to believe it.” President Obama uses itall the time with Islamic extremism, immi-gration, gun control, and global warming, toname four examples.

With global warming, Obama keeps

repeating the lie that 95 percent of all climatescientists believe mankind is causing globalwarming, that coastlines are flooding, thatwe are experiencing more extreme weatherevents, and many more. Obama’s 2014“National Climate Assessment” regurgitatesone lie after another, which is faithfullyreported by the liberal press. (See “Hot Air,”RANGE, Fall 2014.) There is no empiricalevidence that man is causing global warm-ing; there is a mountain of evidence that it isthe result of natural cycles. Yet, most believ-ers today will ignore the hard evidence andwill emphatically regurgitate the lie.

In the same way, the only way citizenscan understand the magnitude of the abuseof western ranchers and rural citizens is byreviewing the legal trail that led to the abusewe see today. Like the lies about globalwarming, most of the actions taken by theEPA are justified by repeatedly claiming it isnecessary to “protect” the environment.Most people would be shocked to find outhow corrupt our federal agencies have beenfor the past 120 years and what they aredoing now. Today federal agencies are target-ing every private landowner, manufacturerand power company in America to gain con-trol over everything—exactly opposite from

Original IntentBlatant constitutional abuse of the West would shock the Founders who never

intended that there should be large federal ownership. By Michael S. Coffman, Ph.D.

RECENT YEARS HAVE SEEN INCREASING TENSION BETWEEN AN ARMY OF FEDERAL ZEALOTS

AND RANCHERS AND RURAL RESIDENTS IN THE WEST. THE MEDIA, EVEN CONSERVATIVE

MEDIA, REINFORCE THE PREMISE THAT THESE LANDOWNERS ARE BREAKING THE LAW.THAT IS RAW PROPAGANDA. WE ARE LIVING IN DANGEROUS TIMES. IF ALLOWED TO CON-TINUE, THE SAME STRATEGY THAT IS BEING USED TO DESTROY WESTERN LANDOWNERS

WILL BE USED TO DESTROY OTHER PRODUCING AMERICANS WITH EPA’S NEW, OVER-REACHING CLEANWATER, ENERGY AND POLLUTION PROGRAMS.

Most Americans have no ideathat more than 50 percent of thewestern United States is “owned”or controlled by the federal orstate governments. This creates afeudal relationship between anall-powerful government and thelocal landowners who must usethe adjacent federal land to makea living. As with the feudalgovernments in Europe duringthe Middle Ages, the land ismanaged for the benefit of thegovernment, not landowners,using a dangerous ideology calledsustainable development. SOURCE: Produced byEnvironmental Perspectives Inc.,Bangor, Maine

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the intentions of our Founding Fathers.By examining how the “elite” created fed-

eral lands in the West, the reader will begin tosee parallels in what is happening today thataffects every American’s fundamental rights.

In the 2012 Winter issue of RANGE,“Our Federal Landlord,” along with severalother articles, provided an overview of thishistory. Some material is replicated in thisarticle to maintain consistency. Nevertheless,to understand the corruption and out-and-out attack on not only rural citizens of theWest but on every property owner in theUnited States, an understanding of the per-version of constitutional law is needed. Thismay be boring for some, but unless the his-tory is understood, numerous false assump-tions and conclusions will be made. Evenconservative media and bloggers have beensucked into the big lie. They have alreadydone far more harm than good in theiranalyses.

As with almost everything else that hasbeen twisted from original intent, theFounders never intended that there shouldbe large federal land ownership. When theywrote the U.S. Constitution, feudalism andmanorialism still existed in France. Our

Founders were eyewitnesses to the brutaltreatment of the peasants under such a sys-tem. In 1783, Thomas Jefferson even went sofar as to insist that all federal land should besold quickly, and “shall never after, in anycase, revert to the United States.”

To ensure that the federal governmentnever amassed large landholdings, ourFounders allowed only three forms of federallandownership and jurisdiction in Article I,Section 8 of the U.S. Constitution: “To estab-lish Post Offices and post Roads”; “To exer-cise exclusive Legislation...over such District[of Columbia] (not to exceed ten Milessquare)”; “and to exercise like Authority over

all Places purchased by the Consent of the Leg-islature of the State...for the Erection of Forts,Magazines, Arsenals, Dock Yards, and otherneedful buildings.” (Italics added)

Add to this the 10th Amendment to theConstitution: “The powers not delegated tothe United States by the Constitution, norprohibited by it to the states, are reserved tothe states respectively, or to the people.”Nowhere in the Constitution is the federalgovernment delegated police powers at thelocal level. Therefore, according to the 10thAmendment, police powers belong to stateand local governments. Period.

With these constitutional constraints,how did the federal government wind upwith more than 50 percent of the land inevery state west of the Rocky Mountains?Why not in the East as well? Most impor-tantly, what does it have to do with westernranches, indeed all property owners in theUnited States?

Everything.

Original IntentEvery state that entered the Union from aU.S. territory was to be on an equal footingwith the original colonies. This Equal Foot-ing Doctrine was formalized for the entireUnited States with the passage of the North-west Ordinance in 1787: “Whenever any ofthe said States shall have sixty thousand freeinhabitants therein, such State shall beadmitted, by its delegates, into the Congressof the United States, on an equal footingwith the original States in all respects what-ever, and shall be at liberty to form a perma-nent constitution and State government.”

Map of the states and territories of the United States as it was from August 1780 to 1790. On Aug. 7,1789, the Northwest Territory was organized. On May 26, 1790, the Territory South of the Ohio Riverwas organized. SOURCE: Made by Golbez. Used under the GNU Free Documentation License

The Homestead Act of 1862 gave 160 acres tothose who successfully filed a Homestead claim. It led to the Homestead Land Rush and tens ofthousands of Americans staked claims to the land.The image at right is an original photo of 50,000potential homesteaders vying for 12,000homestead parcels on two million acres inOklahoma. SOURCE: Oklahoma Historical Society

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Before that happened, however, legisla-tion required the federal government to sellcitizens the land to pay down the Revolu-tionary War debt by stipulating that newstates “in no case, shall interfere with the pri-mary disposal of the soil by the United Statesin Congress assembled.”This also extended “the fundamental

principles of civil and religious liberty, whichform the basis whereon these republics, theirlaws and constitutions are erected; to fix andestablish those principles as the basis of alllaws, constitutions and governments, whichforever hereafter shall be formed in the saidterritory: to provide also for the establish-ment of States, and permanent governmenttherein, and for their admission to a share inthe federal councils on an equal footing withthe original States.”Notice that it was passed as a basic

human right, not to be altered by any futurelegislation. Along with the principles laiddown in the Magna Carta andEnglish Law (check “MagnaCarta,” RANGE, Summer 2015),the Northwest Ordinance pro-vided the basis for the Bill ofRights (the first 10 amend-ments). These fundamentalrights were woven into the U.S.Constitution that same year andinto the Bill of Rights in 1791.Yet, the Equal Footing provisionwas totally ignored in the cre-ation of states west of the RockyMountains. Today, the Bill ofRights is under fierce attack byprogressives on both sides of the aisle andthe Obama administration.There is absolutely no constitutional

basis for “federal landownership” on thescale of that found in the West. In fact,there is no record of any deed for this landin the General Land Office. The Bureau of

Land Management justifies its vast land-holdings by claiming: “By Article IV, Sec-tion 3, Clause 2 of the Constitution,Congress was empowered ‘to dispose ofand make all needful Rules and Regula-tions respecting the Territory or otherProperty belonging to the United States.’”But wait. Doesn’t the language of theNorthwest Ordinance trump this, stating,“to provide also for the establishment ofStates, and permanent government therein,and for their admission to a share in thefederal councils on an equal footing withthe original States”?Article IV, Section 3, Clause 2 of the Con-

stitution specifically is for territories only.Once these territories became states, thisarticle became moot. It no longer applied. Sohow are federal agencies able to use thisclause when it seemingly has no legal basis?The answer is long and torturous, but has adirect bearing on the hostilities in the West.

Early Evolution of Land LawAlthough it was fraught with controversyand power plays, all future states east of theRocky Mountains did enter the Union overthe next 100 years on more or less equalfooting. The federal government for themost part did not retain large blocks of land.The most notable things that happened dur-ing that period were the Preemption Acts of1830 and 1841, the Homestead Act of 1862,and the Civil Rights Act of 1866. The Preemption Act of 1830 allowed

squatters on federal land preemption rightsto buy the land very cheaply. The Preemp-tion Act of 1841 limited the purchase to 160acres and provided the basis for settling theKansas and Nebraska territories. The highlypopular Homestead Act of 1862 created aland rush by requiring the federal govern-ment to deed 160 acres of free land to home-steaders west of the Mississippi. The CivilRights Act of 1866 not only brought equality

to blacks and other minorities, italso gave preemptive rights towater and minerals to ranchersand miners actively grazing ormining on federal land. The mid-1800s created chaos

in western policy as first the ten-sion, and then the Civil Warresulted in turbulent allegiancesand politics. The Mexican Waralso occurred during the mid-1800s and was ended with theTreaty of Guadalupe Hidalgo in1848. Part of the settlement inthe treaty required Mexico to

cede all its territory to the United Statesfrom New Mexico to Colorado and west-ward to the Pacific. Most importantly, Arti-cle VIII of the treaty clearly stated:“Mexicans now established in territoriespreviously belonging to Mexico, and whichremain for the future within the limits of the

Map of Texas annexation and land ceded byMexico in the Treaty of Guadalupe Hidalgoin 1848. The treaty gave much of what isnow Arizona, New Mexico, Colorado, andall of Utah, Nevada and California to theUnited States, along with very specificlanguage protecting the private propertyrights of its existing landowners. Texas wonits independence from Mexico in 1836 andwas annexed by the United States in 1845. SOURCE: Wikipedia

Homestead families living in sod homes on thePlains endured hardships almost beyond belief intoday’s culture. Most of these homesteads failed,and the homesteaders sold their 160 acres forpennies on the dollar to speculators.While tragicfor the failed farmers, the consolidation of landcreated what would become the world’sbreadbasket. SOURCE: Nebraska Historical Society

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United States, as defined by the presenttreaty, shall be free to continue where theynow reside, or to remove at any time to theMexican Republic, retaining the propertywhich they possess in the said territories, ordisposing thereof, and removing the pro-ceeds wherever they please, without theirbeing subjected, on this account, to any con-tribution, tax, or charge whatever.”

The word “Mexicans” in Article VIII alsoincluded Americans. The conditions of thetreaty stipulated, without exception, that theUnited States honor any and all propertyrights granted to the residents of the newlycreated U.S. territory. This included all typesof property rights, espe-cially water and grazing.By this time, much of itwas already settled,including timber rightsin the forested area.

Growing a crop toharvest was very prob-lematic. If the rancher’s160 acres contained aperennial stream, theowner could perhapsirrigate, if he was able toafford the equipment.Few could. Because lifewas so hard, a majorityof homesteads fell to speculators whobought the land at steeply discounted prices.

The Enlarged Homestead Act of 1909increased the acreage of the homestead to320 acres. This gave most homesteads eastof the Rocky Mountains sufficient acreagefor marginal dry-land farming. If the 320-acre homestead had water, a small herd oflivestock could even be raised. The 1916Stock-Raising Homestead Act increased theacreage once again to 640 acres for ranch-ing purposes. With these three acts, most ofthe land east of the Rockies was quickly set-tled by homesteaders and very little landremained as public domain. However, thethree acts still did not provide sufficientacreage for arid homesteading west of theRockies, so most land remained in the pub-lic domain.

Ranchers owning homesteads west ofthe Rockies had another problem. Not onlydid they need water for their livestock, butthe parched land would not support muchforage for grazing. They required thousandsof acres to graze a herd large enough to sus-tain a family in even marginal comfort. Theanswer was the Preemptive Rights of

Appropriation, where the rancher used hisor her homestead as a base and grazed hiscattle on public land called open range(without fences). They could use, but notown, this public land. The open range led tobitter range wars when onehomesteader/owner’s livestock grazingencroached upon another, especially whenboth claimed the only water available.

Water was extremely precious, perhapsmore so than gold. Ranchers built ditches,dug water tanks, and enlarged seeps. Oftenthese were on public lands where the cattleand sheep were grazed. The more water thatcould be developed, the more livestock that

could be grazed—limited only by the forageproduced.

The use of water on public land evolvedinto a property right that was codified byCongress as a “preexisting right of posses-sion” by the Civil Rights Act of 1866. Thisstarted what is known as the “split estate,” inwhich one owner—the federal governmentin this case—claims the land, and anotherowner—the homesteader—owns the min-eral, grazing and/or water rights. The actgave mineral rights to those miners activelymining public lands and water rights toranchers actively grazing public lands. Allother mineral and water rights remainedwith the federal government. These waterand mineral rights were strengthened by theAct of 1870 and especially by the DesertLand Act of 1877.

This admittedly abbreviated and simpli-fied history glosses over the messiness andeven lawlessness of the process. In retrospect,the preemption and homestead laws didn’treally work as intended. Most of the home-steads failed and unscrupulous speculatorsgreatly profited by their demise. Yet, somehomesteaders did succeed.

Fortunately for the world, land east of theRocky Mountains has very little federal landtoday because of federal policy and constitu-tional restrictions based on the Equal Foot-ing Doctrine of the Northwest Ordinance.What happened to radically change well-established constitutional law? Two newunconstitutional laws in the late 1800s radi-cally changed public land west of the Rockiesby ignoring the requirements of the EqualFooting Doctrine and Treaty of GuadalupeHidalgo, thereby keeping it in the hands ofan abusive federal government.

Unknown to the general population, lawschools were introducing concepts in the

mid-1800s wherebycourt cases weredecided based on pre-vious court decisions,not on the Constitu-tion. This is called caselaw and it became therage of U.S. lawschools when Christo-pher Langdell, dean ofHarvard Law School,promoted it the lasthalf of the 1800s. Itwas accepted by mostlaw schools by 1890.

By using case law,all an unscrupulous lawyer had to do wasforce innocent-sounding language into acourt decision so that he could use it to forcefuture decisions that violated the U.S. Con-stitution in some way. That is what hap-pened in the Forest Reserve and GeneralRevision Acts of 1891. Suddenly, the require-ments of the Equal Footing Doctrine and theTreaty of Guadalupe Hidalgo were trumpedby earlier court decisions. That change wasdestined to become a disaster for people whohave to make a living from that land. ■

Dr. Coffman is president of EnvironmentalPerspectives Incorporated (epi-us.com) andCEO of Sovereignty International (sovereign-ty.net) in Bangor, Maine. He will be writingmore on this subject in future RANGE arti-cles. He has had more than 40 years of univer-sity teaching, research and consultingexperience in forestry and environmentalsciences, and has received numerous awardsfor his penetrating and factual writings.He can be reached at 207-945-9878 ormcoffman@epi-us.com.

Lack of water and forage required thousands of acres of land to support a family in the dry landwest of the Rocky Mountains. SOURCE: Photo by Tana on highdesertranchwife.com.

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