I. We, the land
Perhaps the most fundamental question of all time has been our relationship with land because land holds everything we think we need and want (air’s invisibility has protected it from our scourge). It has been an issue in the Western world from long before there were governments. In fact, the Western invention of governments in the Mediterranean world derived probably from land usurpation, and religion, too, originated from land usurpation, from families consecrating land, thereby possessing it spiritually, by burying their dead on their land. But once created, these institutions, government and religion, became the major players in land use and land possession.
Skip several tens of thousands of years to the Americas, and we see those institutions usurping “open” and “free” land in their totality and turning them into private land, at their will. The US is no exception. All private land in the US derives from the government. It was the formation of the States at the end of the War of Independence that provided legal basis for colonial land (that is, land belonging to the King of England) becoming private deeded land. It was the government which bought the Louisiana Purchase and parceled it out to private ownership.
Beyond that, while you may waive your deed to show you own your private property, it is the government which determines (through the county registrar’s records and through property laws) that you own it. That fact, that government stands behind your private ownership, creating and implementing and guaranteeing ownership, makes the present political issue of pitting private ownership of land against government ownership of land something of a muddle, which, of course, politics always deliberately is.
But think a little about private ownership of land. We live very short lives individually. Land lasts a long time. That means that private ownership of land is very temporary unless coupled with inheritance (another governmental determined and protected issue). On the other hand, public ownership of land fits the nature of the land. People keep on, just as land keeps on, and that rids our thinking of extraneous factors, because the really fundamental issue is how we (as people) use the land (as the source of our needs). The present politics of ownership detracts us from thinking about something a lot more real.
II. Politics of land ownership
You may remember the tiff up in Kingston when a property owner put a padlocked gate on the Forest Road going into the Gila Wilderness area. That issue went to court and was resolved by the court decision that the road had to remain open so people could access public lands. The incident was a tiny bit of the larger, national debate about whether the public should or should not own, through their government, land at all. Some people want all land to be private.
Last month, I covered another facet of this debate when I wrote about Sierra County Commission formally, as our representatives, declaring itself against the presidential use of the Antiquities Act to create national monuments. There, I described the collection of New Mexico and Arizona counties that passed almost identical resolutions favoring mining, gas and oil, and lumbering interests. See Free Speech and Abuse of Free Speech – Sierra County Citizen .
To expand further, here is a recent article from Searchlight New Mexico which discusses that attack on the Antiquities Act as part of a movement throughout New Mexico not just against national monuments but against the whole idea of public ownership of land. https://searchlightnm.org/howard-hutchinson-private-property-rights-federal-land-anquiies-act-1906-new-mexico-county-commissioners/ .
The focus of this larger private ownership movement on the Antiquities Act is something of a side-stepping of the central issue, and we need a bit of history to understand why it became the off-centered focus. When President Obama designated the Bears Ears National Monument in Utah at the end of his term of office, it became vulnerable to attacks under the succeeding administration. President Trump reduced its size, and then President Biden restored its size. During the Biden tenure, in 2022, Utah sued the government over Bears Ears on the basis of an Antiquities Act over-reach, as the article in Searchlight discusses, but the Supreme Court declined to hear the case. Utah also opened another case in which it argued more directly that the federal government does not have the authority to own “unappropriated” land.
Utah’s suits were occasioned by an Antiquities Act case (the Massachusetts Lobstermen’s suit against the federal government’s creation of a huge marine national monument off the East Coast). The Supreme Court refused to try that case because of shortcomings in the appeal process. However, its refusal came in the form of a four-page statement by Chief Justice Roberts which attacks the Antiquities Act and invites cases which would give the court that opportunity to interpret the act and set legal precedence.
That was in 2021, and it created lots of dog whistling among private property expansionists, the Utah case for one, the lumber industry and 15 Oregon counties suits over the Cascade and Siskiyou National Monument for another, and all the actions of the Coalition of Arizona/New Mexico Counties. Last year, the Supreme Court year declined to hear Utah’s cases and other Antiquities Act cases, which was probably why our own and neighboring counties passed their proclamations. What is curious is Chief Justice Roberts’s silence on these refusals. We can only assume that he is waiting for the right case to come along which will allow his opinion to have clear legal justifications. But we can be sure that this side issue of national monuments will be decided by the Supreme Court and not by the Sierra County Commission.
III. Government ownership vs. public ownership
I speak of public ownership synonymously with government ownership because I still think of government as the people, unable to shed the mythology from my mind. But they are different. The differences make up part of the complexity of the private property advocates’ varying arguments. The federal government legally owns about a quarter of the land of this country, in some states (Nevada and Utah) the majority of the land. It does not hold this land as trustee for the people. In a real democracy, that may make no difference, but in our world it makes a lot of difference because the land is at the mercy of politicians, and politicians today are into privatization. Now that the government has become itself a private business, land is just an asset. If the land were not government property but held in trust, the government’s actions would, at least legally, require consideration of public interest rather than just profit for individuals who control government.
Furthermore, government is not government but state and federal governments. Utah, for example, wants federal land ownership exchanged for state ownership. That will satisfy those private property advocates who think they can control the state more easily than the nation; however, it still leaves up in the air whether we are thinking ownership (assets) or trusteeship (public good).
The whole issue is much too complex for me to even sketch in an article like this, but the issue is major in importance. Land is the source of almost everything we need to live: food, water, materials for everything we use. At its most extreme, total private ownership means every aspect of our lives will depend on paying someone for use of their land. It would mean the absolute equation of life and money. And, since all private property exists continuously only because of the police powers of government, those private property advocates who think they are resisting governmental power are, in fact, cementing in place that power as police power rather than as public service. Private property advocates see themselves not as part of the public but separately as independent agents. Unfortunately, that is an illusion of pride and about as meaningful as a cell in your body proclaiming itself independent while all the time being nourished by the body and moving around in space as you choose to move.
To finish off this discussion, I suggest a third perspective on this subject from Counterpunch: The Biggest Federal Land Heist in the History of the West? – CounterPunch.org. The article discusses the move to sell off all public land.