Disclaimer clause reduces Nevada authority

By Thomas Mitchell

When Nevada became a state in 1864, its new Constitution contained a so-called Disclaimer Clause, just like every other new state being admitted, in which the residents of the territory were required to “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.”

The state disclaimed all rights and title “forever,” but the U.S. was not handed those rights and title “forever.”

The language was merely a legal formality to fully clear the title to said unappropriated land, as is artfully and simply explained by Steven Miller, managing editor of Nevada Policy Research Institute’s Nevada Journal, in a primer on the proper handling of federal public land in the West called “Broken Compact: The Hollowing-Out of Nevada Statehood.” (It can be downloaded online at: http://www.npri.org/docLib/20130813_NPRIBrokenCompactReport.pdf)

The Disclaimer Clause, Miller explains, is not an obstacle to disposal of federal land, but a vehicle for doing so. For the federal government to dispose of land within Nevada and other states that joined the union after

the original 13, but on “equal footing” with the original states, it first

had to have free and clear title to the land. “No market existed for encumbered properties with clouded titles,” Miller notes.

But to this day 87 percent of Nevada remains in the hands of federal agencies — mainly Bureau of Land Management, Fish and Wildlife Service and Forest Service — as does roughly half the land in the West.

As if to put a face on this issue, along comes Bunkerville rancher Cliven Bundy, who has been ordered by a federal judge to remove his cattle from a section of BLM land or have them seized. Bundy is appealing the order.

The Desert Valley Times quotes Bundy as saying he is grazing his cattle on Nevada and Clark County land in accordance to Nevada law, and the federal government has no jurisdiction.

“Are we a state or a territory in the United States?” Bundy asks, thus stating a fundamental question. Perhaps the more accurate designation is that Nevada is merely a colony of Washington — unable to gainfully tax, lease, sell or even allow the grazing of cattle on its own land.

Bundy says the problem is that his cattle have drifted onto BLM land because the agency has failed to maintain a fence. “That’s the whole problem. They haven’t maintained a fence, and they expect me to shoulder the expense to get them” off the BLM land, he was quoted as saying. “I want to be able to keep the public access, keep my vested water and grazing rights and keep the economic value of the land.”

In a sidebar to “Broken Compact,” Miller explains how Congress, just one month apart in 1864, passed acts enabling Nevada and Nebraska to become states. Both states had Disclaimer Clauses in which each territory’s residents “agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory …”

Today Nebraska has about 1 percent federal public land.

As Miller notes, ranchers in the West became accustomed to ranging their cattle on public land, but eastern Nebraska was settled by “Jeffersonian yeoman farmers,” who soon outnumbered the ranchers in the western part of the state.

About 1905, a Nebraska congressman managed to push through a federal bill creating a Homestead Act for Nebraska, allowing homesteaders to claim 640 acres instead of just 160 acres.

Soon all the public land was snatched up. Since 640 acres was too small to support a family, the land was soon sold to ranchers at an affordable price.

Miller’s piece also notes Nevada’s enabling act states that the land “shall be sold,” with 5 percent of proceeds going to the state:

“That five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union, after deducting all the expenses incident to the same, shall be paid to the said state for the purpose of making and improving public roads, constructing ditches or canals, to effect a general system of irrigation of the agricultural land in the state, as the legislature shall direct.” (Italics added for emphasis.)

The original intention seems pretty clear. Obtain clear title. Sell the land. Divide the proceeds. Clear out.

Thomas Mitchell is a longtime Nevada newspaper columnist. You may share your views with him by emailing thomasmnv@yahoo.com. Read additional musings on his blog at http://4thst8.wordpress.com/.

© 2013 The Ely Times. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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  1. Susan carter says:

    Is David Miller, friend and political Ally of Ryan C. Bundy , son of Cliven Bundy , originally from Bunkerville, NV. ? Yes..
    Are they both in the ” Constitution Party. Yes.
    Is David Miller brother, son, father, uncle or cousin of Steven Miller, VP of the Nevada Research Policy Institute interviewed in this article, who is also from Bunkerville, NV.
    Is David Miller , manager of Brenntag Pacific Inc. , also of Bunkerville NV, the same David Bundy of Iron County Utah or father, son, uncle, cousin of the same?

    I know Randy Bundy is the Randy Bundy who led police on a high speed chase after not paying for gas and running thru gates at a State Park because , he doesn’t recognize the Federal Govt. And feels entitled.

    So, why is Iron County concerned with Bunkerville NV ?

  2. Kenneth W Medenbach says:

    UnderArticle VI, Sec.3, cl.1, of the US Constitution: New States may be admitted by the Congress into the Union. In 1864, Nevada was admitted into the Union. Under Article I, Sec. 8, cl. 7, The Congress shall have power to establish Post Offices and Post Roads and under Article I, Sec. 8, cl. 17: Congress shall have exclusive Legislation over places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.These US Government facilities were to be erected to execute the constitutional laws of the union, suppress insurrections repel invasions, to provide and maintain a navy and provide for the common defense and general welfare of the United States.That’s it. The US Government doesnt’t need 87% of Nevada for these facilities.Like Nebraska, 1% will do. Any part of the Nevada Constitution that provides any land for any other purpose, except for the above facilities, is unconstitutional under Article IV, cl.2 of the US Constitution. Which states: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the Constrary notwithstanding. The disclaimer clause of the Nevada Constitution is in violation of the U S Constitution thus is unconstitutional.

  3. The phrase

    “That five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union”

    Should be given with the entire context of section 10. Anything else would be an attempt at deceit.


  1. […] unappropriated land inside the future state to the federal government, though it said that land “shall be sold,” with 5 percent of proceeds going to the […]

  2. […] stories about the Cliven Bundy standoff with the Bureau of Land Management have mentioned the Disclaimer Clause in the statehood ordinance of Nevada —  in which the residents of the territory were required to […]

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