RBC I At the heart of age-old disagreements about who should own and manage public lands in Western states—the federal government, states, or local communities—is one key document: the U.S. Constitution.
Supporters of transferring federal lands to state or local control, including the armed occupiers of the Malheur National Wildlife Refuge in Oregon, often cite the Constitution, along with original statehood documents, to justify their cause.
Here are three of their main arguments, and what mainstream legal scholars have to say about them.
Enclave Clause
In a Fox News interview two days after the Malheur occupation began in early January, a reporter asked ringleader Ammon Bundy, “How is what you’re doing not lawlessness?” He replied: “I think that we have to go to the supreme law of the land to answer that question. And that is that the federal government does not have authority to come down into the states and to control its land and resources. That is for the people to do, and that is clearly stated in Article 1, (Section) 8, (Clause) 17 of the Constitution.”
That article, also known as the Enclave Clause, grants the federal government the following power:
“To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings…”
Scholars I spoke with for this story said it was unclear how Bundy would interpret the Enclave Clause to mean the federal government shouldn’t control public land.
Perhaps he interprets the phrase regarding consent of state legislatures to imply that states can decline federal management.
But either way, constitutional scholars say Bundy’s interpretation is flat-out wrong.
The Supreme Court has consistently interpreted the Enclave Clause not as curtailing federal control of public land, but protecting it. There is a bargaining process between the feds and states to obtain exclusive jurisdiction over an area of public land.
