Ken Ivory's Public Lands Luau

The Utah State Legislature is still in session for a few more days. I've been trying to avert my eyes but I slipped today and read an article from a few weeks back about Utah State Representative Ken Ivory's bill for Utah to "take back" the public lands (Hint No. 1: you can't "take back" what you never had).

And I admit I was already aware of another odd Ivory bill from my blogger friend at Utah Political Summary. That blogger is a perfectly rational moderate Republican, a vanishing breed. I don't exactly see Rep. Ivory that way.

But back to the Luau.

Ken Ivory's bill on the public lands contorts some typical states rights arguments about "compacts" between the states and the federal government, "equal footing," and how the public lands were "promised" to be disposed of by the federal government. I've already blogged and argued on these points from last year's legislative session. But Ivory claims his current justification to waste the tax-payers' dollars to fight a losing battle in the courts on Constitutional grounds is based on some recent Supreme Court case on public lands in Hawaii. I was intrigued, so I had to check it out.

The case appears to be Hawaii v. Office of Hawaiian Affairs, No.. 07–1372,  __ U.S. __ ( March 31, 2009). It has a really good summary of the history of Hawaii, or you can just go read James Michener (Hint No. 2: Michener's version is a lot sexier). But basically, history is the whole story. Hawaii was inhabited by Native Polynesians who established their own Kingdom that was overthrown by a bunch of American Main-landers who immediately turned over "their" new country to the United States to become a U.S. Territory. All the Crown lands, or Hawaiian public lands, were conveyed to the United States in fee as federal public lands. At statehood in 1959 (Hint No. 3: Hawaii is a State so if you are born there, you can be President), the U.S. Congress conveyed all the public lands in Hawaii to the State for the benefit of its people. In 1993, the U.S. Congress apologized to the native peoples of Hawaii for stealing their Kingdom.

Absolutely nothing like that happened with the federal public lands in Utah. And even if the case had some relevancy, it stands for legal principles that are not going to help Ivory.

". . . we have no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law." Hawaii v. Office of Hawaiian Affairs, slip opinion., at 12.

In Utah, there were various native peoples who came to be known as the Utes, Shoshones, Goshutes, Paiutes, and Navajos. They never set up a kingdom and did not have the same concepts of land ownership as European peoples who started to settle by squatting in what is now Utah. A lot of those European-American people followed Brigham Young here to lands then claimed by Mexico. After the Mexican-American War and the Treaty of Guadalupe Hidalgo, the U.S. Congress graciously provided the authority for land patents to the squatters in Utah. Some of the other lands acquired by the U.S. from Mexico were set aside for the Native Americans and others were retained by the United States as public lands to be "disposed of" by various means.

Contrary to Rep. Ivory's delusions, the U.S. Congress never promised to give all the public lands to the State of Utah. At statehood, thousands of acres of public land were conveyed to the State for state school funding. At best, there was an implication that the Congress would eventually dispose of all the public lands to private interests. But that never happened because no one really wanted them until more modern times when everybody seems to want them for one reason or another. The United States continues to manage the public lands under the laws of Congress and the U.S. Constitution for the benefit of all the people of the United States, not just the ones who happen to live in the neighborhood. My previous blog addresses some of that history.

And if any apologies are due, I think they go to the Native Americans, not the squatters and their descendants. (Hint No. 4: Rep. Ivory's Luau is full of poi).