Thursday, April 17, 2014


The real estate that later became the State of Nevada was acquired by the United States by virtue of the Treaty of Guadalupe Hidalgo in 1848 which ended the Mexican War and called for the payment of some 15  million dollars to Mexico by the victorious United States.
Sixteen years later, President Lincoln authorized the folks in Nevada, without the required 60,000 inhabitants,  to hold a constitutional convention and apply for admission to the union.
It was 1864. The Civil War was in full blossom, and Lincoln was running for a second term.  The Nevada constitution was adopted on October 31, just eight days before  the election and immediately telegraphed verbatim to Washington, D.C. It was the most expensive telegraph ever sent, costing $3,416.77.
And so it was, that on the 31st day of October, 1864, President Abraham Lincoln issued the following proclamation:
Whereas the Congress of the United States passed an act, which was approved on the 21st day of March last, entitled "An act to enable the people of Nevada to form a constitution and State government and for the admission of such State into the Union on an equal footing with the original States;" and
Whereas the said constitution and State government have been formed, pursuant to the conditions prescribed by the fifth section of the act of Congress aforesaid, and the certificate required by the said act and also a copy of the constitution and ordinances have been submitted to the President of the United States:
Now, therefore, be it known that I, Abraham Lincoln, President of the United States, in accordance with the duty imposed upon me by the act of Congress aforesaid, do hereby declare and proclaim that the said State of Nevada is admitted into the Union on an equal footing with the original States.
The Constitution of Nevada, which was approved by the President and the Congress of the United States begins with these words:
All political power is inherent in the people.
That statement, common to the constitutions of most of the American states, is not a mere academic observation.  Used in a constitution, it is an assertion of sovereignty.
What is sovereignty? Very simply, sovereignty is the right to use force to impose your will. It is the right to govern. The right to rule. The right to make laws.
Unlike other nations, sovereignty in the United States is dual; it is divided between the states and the national government. The national government has international sovereignty as a member of the family of nations on the planet. It also has interstate sovereignty, as defined in the United States Constitution, to regulate commerce among the several states of the American union.
The states have domestic sovereignty, which is often called the police power. It is the authority to regulate the affairs of the people. It encompasses the full range of governmental control over the activities of the people; criminal laws, marriage laws, real estate laws, corporations, education, licensing professions, occupations and businesses, health care. The list goes on and on. Basically, the domestic sovereignty of the states includes the right to legislate on any and every subject, unless there is an express constitutional prohibition.
The sovereignty of the national government is just the opposite. The United States may only legislate on subjects specified in the national constitution.
The United States of America owns something like 86 to 89 percent of the real estate in Nevada. But it does not own that land in the same sense that it owns Puerto Rico or Guam. It owns that land in the same sense that it owns post office buildings and federal courthouses all over the country.
It owns that land subject to the domestic sovereignty of the State of Nevada. The United States has no more rights to the land upon which Mr. Bundy has been grazing his cattle than Exxon or General Motors or Bill Gates would have if they owned the land.
If your dog wanders into my yard, I don’t own your dog. I can’t kill your dog, I can’t sell you dog and I can’t refuse to give it back to you. If you build a house on my lot and live there for twenty years, you will own the lot by adverse possession. If you build a baseball field on my lot and use it for twenty years, you will, by prescription, create and easement that will allow you to continue playing baseball there.
Whatever rights Mr. Bundy has to graze his cattle on federal land should be determined by Nevada courts according to Nevada law. Whatever rights the United States has to keep Bundy from grazing his cattle on federal land should be determined and enforced by Nevada law.
The United States of America may own the land next to Bundy’s home, but it is not the domestic sovereign on such lands. It does not have police power there. It can no more shoot people for trespass than any other land owner in Nevada.


  1. Re grazing rights as determined by Nevada law, please see the Federal Land Policy and Management Act, 43 U.S.C. sec. 1701 et seq., particularly the definitions of "public lands" in sec. 1702(e) and "grazing permit and lease" in sec. 1702(p). If your argument is "should" rather than "is," then you're proposing a major change in the existing law. See also Kleppe v. New Mexico, 426 U.S. 529 (1976) (describing Congress's power under the Property Clause, which provides: “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” U.S.Const., Art. IV, s 3, cl. 2.). I have not researched the federal government's remedies for violation of a grazing permit, so I can't comment on that.

  2. Curious if you know of any precedent in Nevada pertaining to adverse possession by prescription where grazing was the issue or for that matter in any state that recognizes adverse possession?

  3. Would love to see your opinion on Utah's H.B. 148!

  4. I appreciate the citations provided by the distinguished and charming counsellor from Colorado, but it seems to me that the board of directors of Microsoft has "the power to to dispose of and make all needful Rules and Regulations respecting the real estate or other property belonging to the corporation." If the cited federal statute and case law purport to give the United States the same sovereignty over federal lands within the several states as it has over Guam or Puerto Rico, I submit that such a statute would be unconstitutional and such a judicial decision would be a colossal error. Of course it would not be the first time that I filed a dissent. I had a very wise law professor who began the discussion of every case with the question: Was the court right or wrong?
    He taught me the very important truth that appellate courts can be wrong. When they are, all we can do is dissent and cling to the truth until it overcomes the error. Witness Dred Scott and Plessy v Ferguson.

  5. The Property Clause. Wouldn't it have made more sense to call it the Dispose Of Clause? And why off and away from the enumerated powers? This was not an oversight. Clearly, this Art. IV Sec. 3 was 'respecting the territory' as in the 'Northwest Territory Act 1787' which was the only territory at the time hence the singular form of the noun.

  6. Ms Brennan, if you were given the task of defending Mr Bundy how long would it take you to pick and choose different laws and rulings to defend his position? If there was ever a profession that exemplified the following quote it would be the legal profession.

    When I use a word,’ Humpty Dumpty said, in a rather scornful tone,’ it means just what I choose it to mean, neither more nor less.’
    ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
    ‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’ (Through the Looking-Glass – Chapter Six)