Monday, April 28, 2014


April 28. The sixty-third anniversary of my marriage to the beautiful Polly. I woke up at 4AM.
Too old to play slap and tickle. Besides, I have a cold. So I write another blog.

I am still being lectured by those who think my opinion in the Bundy matter is contrary to the law. So let’s begin at the beginning.

 Here is what Article I, Section 8 of the United States Constitution says:

[Congress shall have the 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…

So, under the Constitution, the federal government’s exclusive right to make laws concerning land in the United States, is limited to Washington, D.C. and such other land as complies with these four conditions:
1.   It has purchased
2.   With the consent of the State Legislature
3.   For Forts, Magazines, Arsenals, dock Yards
4  For other needful Buildings

You will please note that Article I, Section 8 does not mention:
1.   Parks
2.   Wet lands
3.   Habitats for endangered species
4.   Forests
5.   Mineral rights
6.   Grazing rights
7.   Renting land to others as a source of revenue 
8.   Etc., etc., etc.

No one questions the right of the United States to make laws concerning real estate OUTSIDE THE UNITED STATES; i.e. Guam, Puerto Rico, etc. But inside the United States, the federal government has no power to make laws concerning real estate, except as granted under Article I, Section 8. And that means it has no power to make laws concerned vacant land situated in one of the fifty States.

So what can the federal government do with 86% of Nevada? Just two things:
1.   Sell it
2.   Give it to the State or some other entities.

Now just in case you may still think this is just the rambling of an old, retired, out-of-touch State Court Judge, I invite you to read a very pertinent article at:, written by Lowell H. Becraft, Jr.
,209 Lincoln Street, 
Huntsville, Alabama 3580.

Mr. Becraft cites the following state and federal court decsions:

M'Ilvaine v. Coxe's Lessee, 8 U.S. (4 Cranch) 209, 212 (1808)

Harcourt v. Gaillard, 25 U.S. (12 Wheat.) 523, 526, 527 (1827)

People v. Godfrey, 17 Johns. 225, 233 (N.Y. 1819)

Commonwealth v. Young, Brightly, N.P. 302, 309 (Pa. 1818),

United States v. Cornell, 25 Fed.Cas. 646, 648 No. 14,867 (C.C.D.R.I. 1819)

New Orleans v. United States, 35 U.S. (10 Pet.) 662, 737 (1836)

New York v. Miln, 36 U.S. (11 Pet.) 102 (1837)

Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845)

Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 531, 5 S.Ct. 995 (1885)

Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455 (1930)

United States. In James v. Dravo Contracting Company, 302 U.S. 134, 58 S.Ct. 208 (1937)

Silas Mason Co. v. Tax Commission of State of Washington, 302 U.S. 186, 58 S.Ct. 233 (1937)

Wilson v. Cook, 327 U.S. 474, 66 S.Ct. 663 (1946)

Pacific Coast Dairy v. Department of Agriculture of California, 318 U.S. 285, 63 S.Ct. 628 (1943)

Penn Dairies v. Milk Control Commission of Pennsylvania, 318 U.S. 261, 63 S.Ct. 617 (1943)

S.R.A. v. Minnesota, 327 U.S. 558, 66 S.Ct. 749 (1946)

Paul v. United States, 371 U.S. 245, 83 S.Ct. 426 (1963)

United States v. State Tax Commission of Mississippi, 412 U.S. 363, 93 S.Ct. 2183 (1973)

Representatives of the Western States met in Salt Lake City recently for the purpose of addressing the problems associated with federal ownership of vacant lands.

Maybe they should talk about calling an Article V amendatory constitutional convention.

I can give them a few names of folks who think that would be a good idea. 


  1. Judge,

    Here is the operative section of the Nevada State Constitution:

    "Third. That the people inhabiting said territory do agree and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States; and that lands belonging to citizens of the United States, residing without the said state, shall never be taxed higher than the land belonging to the residents thereof; and that no taxes shall be imposed by said state on lands or property therein belonging to, or which may hereafter be purchased by, the United States, unless otherwise provided by the congress of the United States."

    So, Nevada ceded all claims on public property when it became a state. The United States Government is the sole owner this property and, in fact, this property is not a part of Nevada, just like the District of Columbia is not a part of Maryland or Virginia.

    Additionally, it is well-established that the United States Government may enforce violations of Federal Law committed anywhere in the world, let alone within the confines of United States Territory. Federal Officers may also, of course, carry out orders of Federal Courts, as was the case here.

    One may argue that there were other remedies short of seizing Bundy's cattle, but it's obvious that no other remedies have been successful for the past 20 years. What is inarguable is that the United States Government has the lawful and constitutional authority to take civil and criminal action against any person who violates federal law. The appropriate court to handle these cases are the United States District Courts.


  2. Dear Judge Brennan: One more on the Bundy issue... it is my opinion that we have to revisit the positions of Daniel Webster of Massachusetts who represented the “consolidation” school of the North and John C. Calhoun of South Carolina who represented the State-Rights position. Incidentally, this started with the tariff controversy of 1831-32 …not the slavery issue. In any case, Mr. Calhoun’s position was in favor of the Union, contrary to popular belief. However, as Mr. Edward A. Pollard writes in his book “Southern History of the War”…”Mr. Calhoun…..expressed…that the rights of the States were the only solid foundation of the Union... He (Calhoun) maintained the rights of the States- the sacred distribution of powers between them and the General government- as the life of the Union, and its bond of attachment in the hearts of the people”.
    Mr. Calhoun’s position concerning disputes between the General Government and the States should be brought before “a tribunal of the States for their judgment”.... This is in line with the position of Mr. Jefferson who wrote: “With respect to our State and Federal governments, I do not think their relations are correctly understood by foreigners. ( I might add.. in today’s USA… neither by the majority of our own citizens and the popular media…)…. “ They suppose the former subordinate to the latter. This is not the case. They are co-ordinate departments of one simple and integral whole”…………… In the matter of serious disputes Mr. Jefferson goes on…. “a convention of the States must be called to ascribe the doubtful power to that department which they may think best”. The Bundy issue is a classic case, in my opinion, for our "General Government" and the State to resolve in the manner suggested by Mr. Jefferson..
    Best regards, Ed Burk

  3. How did we get to this? We seem incapable of reading or comprehending the most basic language. Are we ruled by our feelings only and not willing to accept that the Federal government does not have this authority?

  4. ....and may I add "Happy Anniversary"

  5. You never know how these things will turn out. Today's Bundy could be yesterday's Rosa Parks, someone in the gay rights movement, or John Kerry and the Viet Nam war protestors. I agree that if you protest and break the law you are responsible for the consequences, but as long as the protest is non-violent Harry Reed should not be running around calling Bundy's supporters "domestic terrorists".

  6. Yes, but ................ all of these cases were "wrongly decided".

    Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.
    Thomas Jefferson

  7. Good morning sir, what is your opinion on the ongoing Hobby Lobby Case? This one has me worried.

  8. I admire Mr. Israel's consistency in concluding as he does, that federal lands within the geographic boundaries of Nevada are no part of the State of Nevada, but remain in the status of a territory just as before Nevada was admitted to the Union. That would mean, of course, that Congress can not only sell the land, but could also authorize the buyers to apply for statehood.

    The constitutional disclaimer of "all right and title" to unappropriated land was a disclaimer of ownership, not of sovereignty. Were it otherwise. there would have been no need to provide that the state could not levy taxes on the land. The federal lands in Nevada were never ceded to the United States by the Nevada legislature as required by the U.S. Constitution nor does the US government claim that the lands were ceded to it for the limited purposes defined in the US constitution.

    Incidentally, I wonder if Nevada is the only state that cannot enact a homestead exemption on real estate taxes.

  9. My quick answer on "Hobby Lobby": There is perhaps no right more basic to human liberty that the right to contract. In my opinion the federal government has no business interfering with the right of an employer and an employee to make whatever contract they agree upon.