by Steve Miller
copyright © 1996, Electric Nevada
"The Sagebrush Rebellion."
"The War Against the West."
"The County Supremacy Movement."
Over the last twenty years, various names have been applied to the conflict.
But the underlying conflict itself -- over who will control the lands of Nevada -- has been part of Silver State history from the very beginning.
In fact, even before the beginning.
Because even before Nevada came into the Union -- in fact, even before it was a territory -- the intent of powerful political and economic interests on the East Coast of the United States had been made clear: Nevada's tremendous mineral and other resources were to be controlled by them.
It began in 1859, when the Comstock Lode burst into the nation's consciousness, on the very eve of the Civil War. Both North and South immediately recognized that Virginia City's silver and gold bullion meant purchasing power that could very well decide the outcome of the pending conflict.
By the very next year, occasion had been found to station federal troops in the area. Then, when Fort Sumpter was fired upon in April, Congress immediately rushed to create Nevada as a territory separate from Utah, whose loyalty was thought somewhat doubtful.
In 1861, Dixie partisans responded. Under a judge appointed by President of the Confederacy Jefferson Davis, they invaded the Comstock from northern California and attempted -- but failed -- to seize it for the Confederacy.
Next, although legally Nevada had too few people to meet the requirements of statehood, Union activists nevertheless organized constitutional conventions in the state to move it into the Union in 1863, and then, when that failed, again in 1864.
And Congress approved. The Comstock's gold and silver was deemed too important for mere legalities to be observed. Also, Lincoln needed two more loyal Unionist votes in the U.S. Senate, where the Thirteenth Amendment waited to be passed. Nevada's admission would give him the three-fourths majority needed for a measure largely designed to help break the South.
"It is easier to admit Nevada than to raise another million of soldiers," said the Great Emancipator.
So Nevada had become a state, but it was only in a negligible sense. For all practical purposes, Nevada remained essentially a territory ruled by those who dominated the federal government.
This was clear in the very Congressional legislation that made Nevada a state. As part of the enabling legislation, Congress imposed conditions on the state that the Supreme Court, 19 years before, had already declared illegal, citing the U.S. Constitution's guarantee that new states should have 'equal footing' with the original thirteen.
Under Nevada's 1864 enabling act conditions, the people of the territory had to "forever disclaim all right and title to the unappropriated public lands lying within said Territory," and turn them over to the federal government.
But in 1845 the U.S. Supreme Court, in Pollard vs Hagan, a case dealing with the admission of Alabama to the Union under almost identical language, had held that such conditions were in violation of the U.S. Constitution and therefore void.
"We think the proper examination of this subject," said the court, "will show that the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama or any of the new states were formed; except for temporary purposes... [italics added]"
As soon as new states were formed out of the territory, "the power of the United States over these lands as property was to cease," wrote the court.
Thus the provision requiring the people of Alabama to release all title to public lands to the United States, the court said "..would have been void and inoperative, because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a state, or elsewhere, except in cases in which it is expressly granted..." by the Constitution, such as the District of Columbia, land purchased by the federal government from a state with its consent, and land of a territory before it is divided into states.
Of the latter, said the court, "as soon as these purposes could be accomplished, the power of the United States over these lands was to cease."
Nevada lawyer, rancher and judge Clel Georgetta, in his 1972 book Golden Fleece in Nevada, wrote that the failure of the federal government, often including the federal judiciary, to follow this decision has been part of a fundamental 'Breach of Trust' by the federal government vis-a-vis its citizens -- not only in Nevada but throughout the so-called 'public domain' states.
Georgetta, in many ways the intellectual spur to the 1970's and early-80's phase of the Sagebrush Rebellion, argued that the federal government's failure to observe provisions of the 1848 Treaty of Guadaloupe Hidalgo was part of the same breach of trust.
In that treaty, Mexico ceded to the United States over 338 million acres, out of which Nevada (along with California, Arizona, Utah and part of New Mexico, Colorado and Wyoming) was formed.
Georgetta quoted treaty text, where the United States government pledged that the territory given up by Mexico "shall be formed into free, sovereign, and independent states and incorporated into the Union of the United States as soon as possible, and the citizens thereof shall be accorded the enjoyment of all the rights, advantages and immunities as citizens of the original states."
But what later happened in Nevada, he points out, is that the federal government retained all but 13 percent of the land within the boundaries of Nevada.
"Even though this provision is in a treaty with a foreign power," wrote Georgetta, it is a contract made for the benefit of third parties -- the new states. It is a solemn and express pledge to the future states to be carved out of this area that, when admitted to the Union, each state would be completely independent and sovereign over all the lands within its borders, as was the situation with the original states expressly referred to.
"Did the federal government keep this solemn pledge?" asked the judge. "Definitely not!"
It is because the federal government -- under the Treaty of Guadaloupe Hidalgo and other, earlier, deeds of cession, dating all the way back to the Northwest Ordinance of 1787 -- took possession of the territories entirely to hold them in trust for future states, that the federal government's refusal to release them to Western states like Nevada was a "breach of trust," wrote Georgetta.
Nowadays, forgetting its long-ago pledge that the territory within the boundaries of Nevada was to "be formed into [a] free, sovereign, and independent" state, the federal government contends that IT, not the State of Nevada, is sovereign over the great bulk of the land within the state boundaries.
For example, in 1995, in a court action commenced against Elko rancher Cliff Gardner, the federal government explicitly claimed that "as sovereign (it) owns the land within Elko County, Nevada."
That case is now on appeal to the United States Court of Appeals for the Ninth Circuit, in San Francisco.
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