OPINION: Hello … Congress? Are you there?

SUBMITTED BY NPRI

By Geoffrey Lawrence

Fifteen years ago Nevadans amended their state constitution.  For the last 15 years, they’ve patiently awaited some form of acknowledgement from Congress.

When the 1864 Civil War Congress crafted the enabling act that would grant Nevada statehood, it made the state’s acceptance into the Union conditional.  Nevada had to first “forever disclaim all right and title to the unappropriated public lands lying within [the state's borders], and [agree] that the same shall be and remain at the sole and entire disposition of the United States.”

It was wartime, and congressional militants wanted to ensure Union control over all of Nevada’s reputed mineral wealth. Thus, in order for the Battle Born State to enter the Union, Nevada’s founders inserted the language into the state constitution.

At the time, judging from the 1860 Census, the Nevada territory boasted a population of only about 7,000.  Since then, the state’s needs have changed tremendously, as its population has grown to exceed 2.7 million.

Today, the federal encumbrance of 87 percent of the land within the state has become a clear obstacle to the state’s continued development.  Indeed, Nevadans today face practical and logistical challenges unknown to residents of other states, due to the suffocating effects of federal land control.

Beyond these practical complications, an important legal question remains unresolved: Did Congress even have the authority to reserve for itself the bulk of Nevada’s lands?  Article IV, Section 3 of the U.S. Constitution grants Congress the authority to form new states, and the accompanying federal case law has, ever since the 18th century, recognized that new states are to be admitted into the Union on an equal footing with the original states.

Indeed, even though the 1864 enabling act for Nevada’s statehood later subjects Nevada to the encumbering condition of federal dominance in land use, it begins by declaring that Nevada “shall be admitted into the Union upon an equal footing with the original states, in all respects whatsoever.”

In 1979, when Nevada lawmakers passed their statutory censure of federal control over Nevada land, they cited an 1845 U.S. Supreme Court opinion in which the Court found that Congress could not hold claim to public lands in Alabama even though that state’s enabling act imposed conditions nearly identical to those placed on Nevada.  According to the Court, “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, said the Court, “the power of the United States over these lands as property was to cease.”

This led Nevada lawmakers, in 1979, to proclaim, “The attempted imposition upon the State of Nevada by the Congress of the United States of a requirement in the enabling act that Nevada ‘disclaim all right and title to the unappropriated public lands lying within said territory,’ as a condition precedent to acceptance of Nevada into the Union, was an act beyond the power of the Congress of the United States and is thus void.”

By the 1990s, Nevada lawmakers were willing to go a step further and remove from the state’s constitution the disclaimer of interest in unappropriated lands.  In 1993, Senate Joint Resolution 27 began a new chapter of the Sagebrush Rebellion, when both chambers of the Nevada Legislature voted unanimously to remove the disclaimer from the state’s constitution.  After SJR 27 again secured legislative support in 1995, the following question was submitted to a 1996 vote of the people: “Shall the Territorial Ordinance of the Nevada Constitution be amended to remove the disclaimer of the state’s interest in the unappropriated public lands?”

The measure won by a wide margin, with 234,206 voting in favor and only 181,743 voting in opposition.  Having secured lawmakers’ support in consecutive legislative sessions and winning the popular vote, the amendment became official and the disclaimer of interest in unappropriated lands no longer appears in the current version of the Nevada Constitution.

However, “official” does not mean “effective.”  According to the state constitution’s footnotes, the amendment is “effective on the date Congress consents to amendment or a legal determination is made that such consent is not necessary.”  Because Nevada’s constitution must conform to the language of its enabling act, still necessary is either congressional action or a judicial resolution of the state’s claim that Congress lacked authority to impose this condition.

Today, as it has for the last 15 years, Nevada’s constitution continues to stand at odds with its enabling act.

It is long past time for Congress to act — or for an interested party to drive the issue forward in the courts.

Geoffrey Lawrence is deputy policy director at the Nevada Policy Research Institute. For more visit http://npri.org.

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