The Western Lands Issue
By Darr Moon
I was asked recently what ‘the western lands issue’ means. I use this term when speaking about the 11 western states that have substantial amounts of federally owned land within their borders. If we were making arguments in court as the plaintiff, I would call this ‘the issue at bar’ where the arguments presented would illustrate the moving parties rationale for seeking standing to sue.
The introduction to ‘the western lands issue’ being that there is a common belief system, perpetuated by specific interests, with the intent to obfuscate the details of the matter which then makes resolution not only difficult but impossible because after all, if one cannot identify a problem at its core one cannot fix it. What details am I referring to? Let’s identify the current belief of federally owned lands.
The current belief is that the states ‘gave back’ lands it was granted upon admission. The other belief is that the federal government cannot hold lands Constitutionally. They are both wrong. It is not my opinion that these are wrong, I intend to show these assumptions are wrong in PRACTICE and POLICY. This means the evidence will show that the federal government has engaged in practices from day 1 that refute both of the assumptions above.
The first document you need to become acquainted with is the Northwest Ordinance, this write up will focus on that piece of legislation with future write ups on the subsequent actions and legislation and case law, in this manner we will paint a complete picture of the situation. The Northwest ordinance began being drafted by Thomas Jefferson right after England ceded the Northwest Territories to the colonies in the treaty of Paris. The treaty stipulated the terms to which England and the Colonies agreed to in order to settle the issue of England’s vast land holdings on the continent east of the Ohio river. For the purposes of brevity, I will assume each reader has access to Google and can read all the necessary texts upon a word search I will include selective pieces from the texts.
The original NWO (northwest ordinance) was passed by the Confederate Congress in 1787 and was then taken up by the Constitutional government for re-enactment in 1789. The dates are important. So the NWO was a Confederate creation, why is this important? Because of the language in the NWO in article 4, “The said territory, and the States which may be formed therein, shall forever remain a part of this Confederacy of the United States of America, subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made; and to all the acts and ordinances of the United States in Congress assembled, conformable thereto.” You are going to want to save article 4 for later comparison because it’s going to resurface in the arguments at bar from the governments attorneys in the case law.
What else did the Northwest ordinance do? It created a Temporary government to see to the administration of the NWO as it pertained to the creation of Territorial governments and the requirements of those governments to apply for statehood under the NWO.
Sec. 3. Be it ordained by the authority aforesaid, That there shall be appointed from time to time by Congress, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress; he shall reside in the district, and have a freehold estate therein in 1,000 acres of land, while in the exercise of his office.
Sec. 4. There shall be appointed from time to time by Congress, a secretary, whose commission shall continue in force for four years unless sooner revoked; he shall reside in the district, and have a freehold estate therein in 500 acres of land, while in the exercise of his office. It shall be his duty to keep and preserve the acts and laws passed by the legislature, and the public records of the district, and the proceedings of the governor in his executive department, and transmit authentic copies of such acts and proceedings, every six months, to the Secretary of Congress: There shall also be appointed a court to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction, and reside in the district, and have each therein a freehold estate in 500 acres of land while in the exercise of their offices; and their commissions shall continue in force during good behavior.
Sec. 5. The governor and judges, or a majority of them, shall adopt and publish in the district such laws of the original States, criminal and civil, as may be necessary and best suited to the circumstances of the district, and report them to Congress from time to time: which laws shall be in force in the district until the organization of the General Assembly therein, unless disapproved of by Congress; but afterwards the Legislature shall have authority to alter them as they shall think fit.
Sec. 6. The governor, for the time being, shall be commander in chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress.
And so every conflict with the Indian nations was under the authority of the governor, using the military might (hardware) of the United States as a ‘police action’. We must re-iterate here, while it is easy to cry ‘unconstitutional’ it is another matter to realize the entire effort was extra-constitutional, what do I mean here? What authorized the governor to use the militia in this fashion? The NWO. Who passed the NWO? It was a confederate creation. How could it be Constitutional? Article 6: All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
Is further confirmation necessary? Very well but we have to go a little deeper now if we are to support the supposition that the NWO was a previous engagement entered into and protected by Article 6. Let’s go point by point;
- The NWO was a confederate creation. The stile of the confederacy was ‘The United States of America’
- The stile of the Constitutional government was ‘The United States’
- The preamble to the Constitution reads, We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
It is obvious from history that there was NO intent for the confederate government to continue operating after a certain date which at the time was uncertain as new lands were being added and the operation of the NWO continued until 1858 where it (the temporary government) was disbanded upon executive order by James Buchanan after all Territories had been settled and governments created. However, while the Territories had been settled the Indian wars were not quite finished and the militia found itself fighting Chief Joseph in north central Idaho (among other conflicts around the Territories) in 1877. The militia also found itself on stand-by waiting for Indian rebellion until 1901 and we will get into the events of 1901 in successive write-ups but remember that date.
What was Congresses role in all of this? To answer that we start at the Louisiana Purchase and who? Thomas Jefferson, a central figure in this whole mess. Thomas Jefferson had real doubts as to whether the US could make the purchase under the Constitution but the question is why? Thomas had been involved in the disposition of acquired lands from foreign powers from day 1, so how could he suddenly question the practice? Because he drafted the original NWO and knew that the lands were to be held by the confederate created articles of Confederation and not the US created Constitutional government and when he negotiated the deal with France he was negotiating as an officer/agent of the new government…do you see the conflict? The question is this, how did Congress resolve the conflict? The debates in Congress reveal that Congress decided to apply Article 4 section 3 clause 2 as meaning that the intent of the language was to allow the US government to hold land….problem solved right? Now to prove this was the outcome of the debate I would normally tell you to consult the Congressional record but that MAY be difficult these days so instead I will turn your attention to a report entitled, “A report of the law of civil government in lands under military occupation by the military forces of the United States”. In this report you will find the arguments in Congress over the Louisiana Purchase and much more.
I have asked this question repeatedly, “what was the purpose of putting the lands under the Articles of Confederation instead of the Constitutional government?”. I eventually thought of a compelling theory. You see the original lands in dispute prior to England’s cession of them were disputes between the colonies as to which colonies had original claim to said lands. The colonies refused to relinquish their claims to these lands creating quite a mess with the advent of the effort to ‘redraft’ the Articles of Confederation in order to create a more efficient government which we all know culminated in the creation of the Constitution. Eventually the colonies were persuaded to give up their claims to the Confederate government and one must wonder what the ‘carrot’ was that was used to entice the colonies to do so, certainly the new government holding the lands was not a big selling point but there is a substantial lack of information here and I theorize it was destroyed when the library of Congress was burned to the ground in the war of 1812.
This means we have to try and piece together events the best we can with what is left. There’s no conspiracy here unless it was the English intent to damage our ability for future generations to make sense of this mess and make appropriate decisions based upon real and actual data which I wouldn’t put past the English of that day. My theory (based out of the verbiage employed in the debates on the Louisiana purchase) was that the colonies had serious misgivings about a new government holding land but agreed to put the land into the old system as a sort of trust where the Articles of Confederation and the United States of America (stile of the confederacy…remember this statement it will come up again in the case law) held the land in trust on behalf of the United States (stile of the Constitutional government) but that the Constitutional government could make Constitutional changes to this system, “and to such alterations therein as shall be constitutionally made”.
We need to keep in mind that the Northwest Ordinance language here conveys an important clue as to this possible intent when it uses the term cited above. The Constitution came AFTER the Northwest Ordinance and this entire scheme shows an intent by the framers to have the Articles of Confederation be the holding entity for all the lands…I do not see how it can be viewed any differently and this realization assists us when we finally get to the assenting opinions in Downes v Bidwell because without this rationale the Downes case is simply too confusing and makes no sense. So we have several things going on, the original Articles of Confederation system being the land holding company and then the Louisiana Purchase being purchased by the Constitutional government, the question remains, who is the holder of the lands acquired during and after the Louisiana Purchase?
The proposition put forward by Congress in debate over the Louisiana Purchase was in the form of a question; ‘Does the Constitution follow the flag?’ The outcome of the debates was NO it does not. Is this a clue? If the lands purchased were to be held by the Constitutional government wouldn’t the Constitution now extend itself automatically? The arguments show that the concern was that the people in the newly acquired lands may not have warm feelings toward a Representative style of government and that many of the peoples may still owe allegiance to foreign powers. One tends to believe that the newly acquired lands were automatically held by the Territorial holding company as laid out in Article 4 of the NWO because the NWO was the driving legislation for the creation of Territories and their subsequent conversion into states.
My rational mind cannot fall upon any other explanation that satisfies, but we need to assume we still don’t have enough data to make our case quite yet and so in the next part of this series we will need to examine the states admission acts before we move on to the case law.