Give the Public Lands Back, But to Whom?

I’ve been thinking of a way to present this story for a few months. Back in March (I believe) Utah Governor Gary Herbert signed a state law that requires the federal government to turn 30 million acres of public lands over to state ownership. Most of this land is controlled by the Bureau of Land Management, but the Forest Service and the National Park Service also would lose control of lands (although apparently the state would return control of the national parks and wilderness areas to the federal government). The Deseret News adds local flavor to the story here. Notice that RS 2477 makes an appearance in this debate!

There have been variations on this story for as long as I have been involved in public land management, and the story always ends the same. The Feds will never cede these lands back to the state of Utah, or any other state. The state lacks the constitutional authority for these type of claims, claims that cannot withstand even a modicum of scrutiny in a federal court. But I understand why Utah wants these lands back: not for recreation and tourism, but for the imagined riches of precious metals, coal, cattle, and petroleum and natural gas.

But the whole sordid affair raises a question for me, one that I would like to put toward a constitutional scholar or public lands historian: Why, if the federal government ever did decided to divest itself of these massive western land holdings, would they give the lands back to the states? Why would they not give these lands back to the Tribal governments? The Navajo, the Utes, the Hopi? Should the Tribes not be first in line – have dibs as it were – to the return of these lands, much of which was their ancestral homeland, and much of which was taken from them by the government? Why do we act as if the Tribes don’t exist? Don’t have a say? Aren’t recognized in our Constitution (they are)? Aren’t we forgetting them a bit prematurely? Now there’s a lawsuit I’d like to see: How long would it take the Tribes to intervene in any lawsuit forcing the Feds to return public lands to the states, especially if the case showed even the slightest hint of gaining traction? If I were a member of Tribal government, I’d be passing some Tribal resolutions of my own. What’s fair is fair.

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