People are telling me the law is unconstitutional? Thoughts?
This is an issue that has been decided long ago in a variety of different contexts. For example, here is the (applicable) ninth circuit case on the issue of whether or not the Federal Government can "own" lands under the constitution rather than simply hold lands in reserve for states.
https://openjurist.org/107/f3d/1314/united-states-v-gardner
The primary thrust is, essentially, that the original thirteen states are special. They operated as thirteen sovereign entities that gave themselves over to the United States and early cases interpreting the relevant provision of the Constitution are about those specific states and their relationship to the US Government. For example, in
Pollard's Lessee v. Hagan (cited as one of the "correct" cases in PKM's non-cited article) the case specifically dealt with the terms of Virginia and Georgia's land that was ceded to the US Federal Government to discharge debts incurred by those states during the revolutionary war. Other states (like Nevada) had no independent existence as a sovereign territory and were acquired in other ways, in this instance a treaty with Mexico.
While previous court cases dealt with states that belonged to the former category (like Virginia and Georgia), later court cases dealt with states that belonged to the latter category (like Nevada). Title with the USFG to the lands in question was consistent all the way from the original acquisition of the land from Mexico in 1848. Since the USFG has held title since 1848, and the Property Clause provides that Congress has the power "to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States," courts have uniformly held that the US retains title and newly created states do not automatically absorb all federal lands.
This is an instance of people who claim a thing is unconstitutional trying to make square pegs fit round holes. Not every state came into the nation the same way, and not every state's land dealings have been treated the same way because the chain of title differs. It turns out the very existence of potential Nevada wasn't on the framer's minds in the 1780s.
The Bundys and others like them have tried to claim that treating Nevada differently than the first thirteen colonies is also unconstitutional under a theory known as the Equal Footing Doctrine. This argument sounds better than it is because it has a catchy name. The actual Equal Footing Doctrine from
Pollard's Lessee v. Hagan applied only to give new states rights, sovereignty and jurisdiction over applicable shores and navigable waters. This was for purely practical reasons involving difficulty of accurate surveying at the time of the decision and determining which entity would have sovereignty over the appropriate land. In fact, no Court has held that the Equal Footing Doctrine applies to inland lands for more than a Century. This has even applied to minor islands in stream beds and rivers where states can own the entire river and the US Government can maintain control of the islands therein.
Some in my family are telling me Bundy has paid grazing fees for years, and that he continues to offer the state of Nevada money. Is this a state vs. federal issue?
It doesn't much matter to the electric company if I offer to pay their bill to the water utility.
