Federal Reservations

There are several questions concerning the power of the federal government to "reserve" lands. The Court appears to make a differentiation between the federal "reservation of lands from disposal" as regards lands still in Territorial status, (prior to statehood,) and reservation of lands from disposal subsequent to Statehood. (Alaska is a State where the federal government has formally appropriated land from a Territory to itself and reserved it from the Statehood process specifically as federal property. In Langford v. Monteith, 102 U.S. 145 (1880), the court decided that when an act of congress admitting a State into the Union provided in accordance with a treaty, that the lands of an Indian tribe shall not be a part of such State or Territory, the new State government has no jurisdiction over them. The enabling acts governing the admission of several of the States provided that exclusive jurisdiction over certain specific areas was to be reserved to the United States.)

Regarding the question as to whether the federal government may "reserve" "Territory" from the process of Statehood, the following discussion from Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure, 2D, supra, Section 3.6, footnote 4, p. 322 is submitted:

"[U]nder the equal footing doctrine the judiciary treats the property in a territory that is destined for statehood as being owned by the federal government in trust for the future state. Congress could sell parts of the territory, which it owns under its Article IV property power, to private persons prior to admitting that territory to statehood. The court has not determined whether Congress could defeat a future state's title to land simply by reserving title to a portion of the territory for the federal government prior to admitting the state to the union.

"The Supreme Court has adopted a strong presumption against finding that Congress intended to defeat a state's title to land that had once been part of a federal territory, prior to the state's admission to the union. In Utah Division of State Lands v. United States, 482 U.S. 193, 107 S.Ct. 2318, 96 L.Ed.2d 162 (1987), on remand 846 F.2d 618 (10th Cir. 1988) the Court assumed, arguendo, that the federal government could reserve title to territory so as to overcome the presumption of state title to land, but it found that Congress would have to demonstrate clearly and affirmatively that it intended to defeat the future state's title to land within its borders, which otherwise would be state-owned public lands (such as river beds or lake beds)."

Regarding the reservation of lands subsequent to Statehood, in Friedman v. Goodwin, (CC.1856) Fed. Cas. No. 5, 119, 1 McAll. 142, the court decided:

"On the cession of [Mexican] California to the United States, all the public lands therein became the property of the United States. On her admission to the Union, she became the owner of all the public land not disposed of by law of congress."

After extensive lobbying by John Muir, Yosemite was designated a National Park in 1891. However, in order to vest exclusive jurisdiction and ownership in regard to these lands in the United States, it was necessary for the California Legislature to approve a deed of cession for Yosemite to the U.S in St. 1891, p. 262 as follows:

"The State of California hereby cedes to the United States of America exclusive jurisdiction over such place or parcel of land as may have been or may be hereafter ceded or conveyed to the United States..."

On the question of the nature of the jurisdiction that the federal government may exercise over lands reserved or withdrawn from disposal, or remaining in her possession, the court has held in People, by McCullough v. Shearer, 30 C. 645, 1 P.L.M. pt. 2, 97 (1866,):

"The relationship of the United States to the public land since the admission of California into the Union is simply proprietary, that of any owner of lands like any other Citizen who owns lands, and not of a municipal sovereign."

Regarding the "sovereign" control of the people of the State over the land and resources within its boundaries, in the case of Kansas v. Colorado, 185 U.S. 143 (1902) and 206 U.S. 46 (1907), the federal government argued that the amount of the flow of an interstate river was "subject to the superior authority and supervisory control of the United States" by virtue of its ownership of substantial national "territories" through which the river passed, and its powers under: (1) Article IV, Section 3 - "...the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," and (2) the power vested in the national government to acquire territory by treaty.

The Court agreed that the federal government did have full power of legislation in respect to all Territories, (public domain lands held prior to statehood,) subject to no restriction other than those expressly named in the Constitution. The right to dispose of and make all necessary rules and regulations on federal "properties" located within the States were, however, subordinate to the legislative powers of general government of the States.

The Court found that the powers of the national government within the geographical limits of the States was the same as those within the limits of the original thirteen States. Absent a definite power enumerated in the Constitution, the federal government could not legislate in respect to lands within State borders.

The Court concluded:

"...It is enough for the purpose of this case that each state has full jurisdiction over the lands within its borders, including the beds of streams and other waters."

In 1976, Congress passed FLPMA (Federal Land Policy and Management Act- BLM Organic Act, P.L. 94-579) (90 Stat. 2743, codified at 43 U.S.C. 1701.) It states:

"The Congress declares that it is the policy of the United States that the public lands be retained in federal ownership."

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