Rick Green

Welcome to the Intersection of Faith and Culture. Thanks for joining us today on WallBuilders. Later in the program Ken Ivory will join us. I'm Rick Green here with David and Tim Barton Guys. Ken State Representative Ken Ivory's got a big lawsuit filed just a few days ago. We've had him on many times. He's spoken in legislators conference about this issue of federal lands and having I don't know, 60, 70, 80 percent of a lot of these states and federal property. This lawsuit could potentially turn that around.

David Barton

Yeah, this is a huge, huge, huge lawsuit. I think this is something that can completely shift the tide, because for about 130 years the federal government has believed it could do anything it wanted to, it could control the Western lands, despite the contract they have with the states. It can take those lands and now it tells people who can hunt on them, who can farm around them, what you can do with it. Everything about those lands has given them control over private property and so many others, and it's just not precedent. If this thing goes through and we think there's a good, good probability that the courts are going to rule against the states in this based on the history of this if that occurs, this will be a massive shift of power, a massive reigning end of the power of the federal government in both public and private areas. I think this is a massive, massive, massive lawsuit. I think the results could be absolutely phenomenal for America.

Tim Barton

Well and this is something we've seen a Supreme Court who has shown themselves very willing to take on some very significant issues where the federal government or prior Supreme Courts had overstepped the balance, and so this is absolutely the perfect time with a court and I'm saying I want to say the perfect court.

I don't think it is. We already saw in the Title IX a 5-4 decision with Gorsuch on the other side, and it could have been. Maybe he didn't like the process, something I don't know but there definitely are justices on there. They don't always have the right perspective, but when it comes to the federalism issue, they've shown themselves over the last several years to be much better on understanding what the constitution actually says instead of basing it on the last 30, 40, 50, 60 years of Supreme Court precedent. So this is a very exciting case and they have one of the very best attorneys in Supreme Court history, at least in the more modern era Paul Clement, and so I'm very excited to see what happens with this case. It's very, very important. It should be a no-brainer based on when those territories became states and what the agreement was with the federal government, but this will be very exciting to hear what Ken can tell us about this lawsuit and, hopefully, what we need to know to pray and anticipate the victory coming in the near future?

Rick Green

Well, Ken will be with us when we return from the break. Stay with us, folks. You're listening to the WallBuilder Show.

Break

Rick Green

Welcome back. Thanks for staying with us. Ken Ivory, back with a state representative in Utah, but what he's doing right now is not just going to affect Utah, it's going to affect the whole nation. This is big constitutionally. It's big financially, ken man. You've been working on this since I knew you. This is a big, big day, brother.

Ken Ivory

Yeah big deal man, big big deal we. This is nothing short of an environmental, economic, constitutional renaissance.

Rick Green

Wow, yeah, yeah, and this is not something that you guys just thought up all of a sudden a few weeks ago. Like I said, you've been working on this a big chunk of your professional career political career, for sure but it's something that's been a long time coming and we talked about it last time you were here in the tavern how some states that had the feds take a lot of the land got it back and very little federal land now in their states, whereas states like yours, Utah and Nevada and others man, it's well over half In some states. What is it? 70, 75%.

Ken Ivory

Yeah, Nevada is 85% federally controlled, 85%, 85%. Utah is only 70%.

Rick Green

Only 70%. I like how you said that, yeah.

Ken Ivory

Think about it, but the feels like temperature. The feels like temperature is more like about 90, because even though we only have 20%, taxable land in our state, some counties Rick, some counties Rick have 3% taxable land. Wow, but every piece of federal land that touches a private parcel of land, they control the private parcel. And so then you can't cross through?

Yeah, you can't cross through. I mean roads, power lines, communication systems, anything that goes over federal land. You're talking years of environmental impact studies, litigation. We can't do an emergency communication system in our state. 

Rick Green

Unbelievable, unbelievable, and this has been for how long? 

Ken Ivory

Oh goodness, so our statehood. At statehood, we had the same promise that the federal government would dispose of the land just like all the other states. Texas was one of the few states that was a little bit different. You were your own country for a while, then you said we will 

Come in, but we're keeping all our land. But Tennessee, kentucky, vermont, all of them, when they came in federal government said all of that land went to the state.

Now the history on this is really fascinating. So it starts with Maryland. Maryland is responsible for the public land, right, you think, Maryland, what's going on with that? So they declare independence? Right, they're there. 1776. You've been in Independence Hall? They're in that building. John Dickinson has a draft of the Articles of Confederation.

And Maryland says guys, how are we going to pay for this? I mean life, fortune, sacred honor, that's all great, but we got to pay for this. And they said, hey, what do you care, we're going to get killed anyway. Right, you know, like Benjamin Harrison to Elbridge Gerry, like we're all going to swing in the wind. But they said, no, serious, right, let's suppose we win. How are we going to pay for this? And they said look, if we win, we'll just use all that Western land.

And Maryland says, hey, time out, we don't have any claim to the Western lands. Seven of the states had claims to the Western lands, lands west of their colonial boundary. Six of them, including Maryland, didn't have any claims to land in the west. Now Virginia, Virginia claimed all the way to the Pacific Ocean. So they have their state of Virginia. But then they claim western land all the way to the Pacific Ocean.

And they said, well, look, we don't have any land claims. And so if we win, let's suppose we win Virginia just sells land claims to fund their government. We've got a tax. Our people are going to go to Virginia. We're going to trade one tyrant for another. You're asking us to put our blood and treasure into a revolutionary, crazy war that, at the end of the day, you're going to claim land all the way to the Pacific. We'll just be subject to you. Not going to do it. And they said look, we'll work it out. We'll work that out, just declare independence with us. And they do. But when they had the Articles of Confederation, Maryland wouldn't join the Articles of Confederation.

Rick Green

Same issue.

Ken Ivory

Yeah. And so now they're into 1778, 79, 1780. And in that period they're losing all over the place and they're waiting for France to come in. France isn't going to join the war until they know who they're going to work with. They're not going to herd kittens. You know 13 colonies all over. They said what's the entity we're dealing with? Well, you see, we're working on that.

Well, finally they came up with Rick. They called that the question of the age, the great embarrassment. They're in the middle of a war and they can't even do the Articles of Confederation because they can't solve this land. Question, rick. This was the first great compromise. We wouldn't have gotten to Roger Sherman without this.

So the Continental Congress said look, we're going to do a resolution, October of 1780. Any land that's ceded to the small u United States states shall be disposed of to pay the debt of the war, create equal states, nothing else. On that basis, Virginia ceded its land, all that land of the pacific ocean, to the small u united states, only to pay the debt of the war, only to create distinct republican states with the same rights of sovereignty, freedom, independence, and for no other use or purpose whatsoever. All the other states put that same language in there. On that basis, Maryland then joined the Articles of Confederation. France comes in loans, money joins in. They win the war.

And that was a trust. They called it a sacred trust. Andrew Jackson writes about it and he says this was the most solemn, sacred act of patriotism, that the country never would have been founded without that first great compromise. And that's what Article 4 of the Property Clause is about. They get to the Property Clause. There's no debate, because they say, hey, let's just preserve the status quo. We already know what's going on. We're holding that land in trust for all the states to be created, pay the debt of the war, create equal states. That's where we are. Utah's now just suing to say you got to treat us equally like all the other states.

Rick Green

So help me understand. So back at that time when Virginia ceded all of that land, did they get any of that back when the war was over?

Ken Ivory

So Virginia got you know, every state has its colonial boundary right. Okay, so they have their colonial boundary, that's not affected. But then they had claims going out to the West and often their claims overlapped right. So Virginia's claims overlap with North Carolina's claims and North Carolina overlaps with Georgia and whatnot, and so they're having all kinds of litigation to sort out these claims.

So if you look at the second half of the property clause, right Article 4, section 3, clause 2, congress shall have the power to keep the land forever and ever and ever. It doesn't say that right, ever and ever. Right doesn't say that right. Congress has the power to dispose of and make need for rules and regulations respecting the territory. Other property, the united states. And the next clause. Nobody knows what it means because they don't know the Maryland history. It says and nothing in this constitution shall prejudice any claim of the United States or of any particular states. What does that mean?

Well, United States had a claim receive the United States or of any particular states. What does that mean? Well, United States had a claim receive the land, pay the debt of the war. Only create equal states. Virginia and all the landed states had the claim that if we cede our land, you're only going to use it to pay the debt of the war, create equal states. You're not going to be a land baron. And the landless states, like Maryland, had the claim that if that land is ceded to the United States, only pay the debt of the war, only create equal states. Virginia's not going to be a land baron, United States is not going to be a land baron. And on that basis, rick, that was the first great act of patriotism, that first great compromise that put that land in trust, pay the debt of the war, create equal states.

Rick Green

And so for Virginia it wasn't about getting that land back that was outside of their colonial territory. It was about that land will now only be used to pay the debt and to create equal states. So if that land was used to create Tennessee or Utah or whatever it might be, that would be an appropriate use of that land according to that agreement. But to hold on to it to do whatever else afterwards after you've created equal states, there was no language in there that gave them the ability to do that.

Ken Ivory

Yeah, that's right. So where Congress has the power to hold land, article 1, section 8, clause 17, 10 square miles for the seat of government if it's seated by a state with the consent of that legislature and other like authority right. They had exclusive legislation over the District of Columbia, like authority over other property that is purchased with the consent of the state legislature and only for forts, arsenals, batteries, dockyards, other needful buildings. So the authority for the United States to hold land is if they buy it and they have the consent of the state legislature and it's only for certain government purposes, it's to further the government purpose. They can't just buy land and just hang on to it and be a land speculator, a land baron and Rick. The United States right now owns 640 million acres of land.

Rick Green

I'm sure they paid you guys in Utah handsomely for that 70% and I'm sure it's all one big military base. Now, right, I mean it's all perfectly constitutional and everything was done right.

Ken Ivory

 Yeah, you know, that's exactly what it is 

Rick Green

so what are you guys, in your lawsuit, claiming or asking the court to do, or make the federal government finally do that it promised before?

Ken Ivory

Yeah, so that promise was in all the States Enabling Act, all the other states until they got to the Rocky Mountains. So I don't know if you I think we've talked about this before, but from Indiana to Iowa, down to Louisiana and over to Florida, all those states, those newly created states, that kind of create that horseshoe that wraps around the original states. They were 90% federally controlled from the 1820s to the 1860s. They started moving west and Congress you know everybody wants to glom onto stuff and they were concerned about oh, that'll change the electoral balance. They hung onto that land for four or five decades.

There was a Senator from Missouri. His name's Thomas Hart Benton. He's included in JFK's book Profiles in Courage. He's one of the eight Senators in that book, Thomas Hart Benton. Every time he got up he would talk about we got to dispose of this land. We got to dispose of this land and treat them equally. You know the states were sending resolutions. Florida sent a resolution to Congress that said we're the worst off of all the Western states. Right, think of your geography. Right, we're the worst off of all the Western states. States you're not disposing of our land. We can't age, get our kids grow our economy. People are leaving this state and they fought for three, four decades and they disposed of all that land but then, when they got to the Rocky Mountains, forgot all about the history.

Rick Green

For see what you're doing now let me, let me, let me ask a quick question on that. When you say dispose of that land, how did they dispose of it? What did they do?

Ken Ivory

Yeah, well, first I want to give you a plug, man, what you're doing, teaching the history, teaching the constitution. If we don't know our rights, we lose them. We don't know our rights. If we don't know the constitutional rights and we don't have the courage to uh, what do you say to assert and defend them, we lose them. And that's a perfect example. So they got, you know, the Midwest lost their rights. They had to fight. They get to they say oh, they don't know the rights anymore. We're going to hang on to the land.

The way they disposed of the land, from, you know, the 13 original to the Rocky Mountains, they gave a bunch of grants to the states so most of the states they gave them a bunch of land for schools and universities and minors and all kinds of stuff like that. And then what they said is 5% of the proceeds of the sale of public lands that shall be sold shall be paid to the state to support the schools. So they said look, you're going to give us clean title at statehood. We're going to make you a state. You, people of the state, you disclaim any title you have to that land so that we have clean title. And we promise we're going to give you 5% of the proceeds of what we sell. We're going to do it in a reasonable time. So now you got 5% of the proceeds of the land that was sold. Now you can start taxing the land and now you exercise that full police power jurisdiction over the land played out in those states.

That's how it played out in all those states up to the Rocky Mountains and, rick, they have exactly word for word, the same terms in their statehood agreement as all the states west of the Rockies do today, 

Rick Green

and then they just reneged on the ones to the West.

I mean, just stop doing it.

Ken Ivory

Yeah. So initially, when I started looking at it, my first session in the legislature $2.5 billion below average in per-pupil funding, right Education, because we only have 20% taxable land. And I'm like and I had a senator on the other side of the aisle that she runs a bill to raise taxes $30 million. We're still $2.5 billion below average, right? I mean, you raise taxes $30 million and she's out crowing like she solved the issue. So I'm looking into it. I find out, man, everybody usually funds education with property tax. We only have 20% taxable land. So I started digging in, find out hey, we got the same terms as all these other states. You know what I was told when I said hey, we need to be treated equally. First thing they said Utah gave up the land because of polygamy.

Rick Green

then what about Nevada and all these other states? Exactly right, what about?

Ken Ivory

Nevada, what about Alaska? What about California? Right. And they go oh, but this was what. This is what people had conjured up in their mind to say no, don't, don, don't get out of your box, right. And then what they said is there's a provision in the Enabling Act that says the people of the state forever disclaim right and title to these unappropriated lands. And they act like there's a period there, there's a comma there. Right, no period. They disclaim right and title until title thereto shall have been disposed of. Right. So the people give that's clean.

Rick Green

I mean, that's plain, that's absolutely plain yeah right.

Ken Ivory

And then in the enabling, in the Enabling Act it also says and five percent of the proceeds of the sale of public lands that shall be sold shall be paid to the state to support the schools. In Nevada it was to support the minors' hospitals and in other states it was to support the canals and infrastructure. But from Ohio West every single state you give federal government clean title so that we can dispose of the land. We'll give you 5% of the sales and then we'll give you some for your school trust fund and then you get to tax the land, you get to have your full police power.

Rick Green

But they never did it. And so now to get them to do it, 100 years later, 150 years later, your attorney general and governor and legislature and everybody is saying we're going to take this to the mat and, I'm assuming, try to get it to the Supreme Court to get them to rule on it.

Ken Ivory

Yeah, as you know, there are certain a very small, select number of cases that can go directly to the Supreme Court, called original jurisdiction. So this is one of those cases where we're claiming original jurisdiction because it's Utah suing the United States over a matter of intense constitutional importance. We're restricted in our ability to be a sovereign state. Our police power jurisdiction is restricted. Our sovereign power of taxing is restricted 20% taxable land, the eminent domain power of a state. We're restricted in that we can't even run power lines, roads, communication lines right so our ability to be a state.

And then there was a case a few years ago, a Shelby County versus Holder, and they said the constitutional equality of the states is essential to the harmonious operation of the republic. If the states aren't equal and some states are exploitable, you know what Washington’s going to do. Right, exploit. You mentioned, you mentioned the pill, right, the, the payment in lieu of taxes. Right so 1976, this was the deal all the way up to 1976.

And then, because we didn't know our history, rick, just like you're doing, you're teaching people their rights so they know them, they can perceive when they're interfered with, they can assert and defend them. Right, that John Jay quote that you've made so popular and get out to the whole Patriot Academy family. If we don't know our rights, we can't perceive when they're violated, we can't assert and defend. And so up until 1976, we don't know our rights anymore.

And so Congress comes out with legislation, federal Land Policy Management Act, flipma. And in 1976, never mind the Constitution, never mind that first great compromise, never mind the Northwest Ordinance, never mind all the history and the course of dealing, never mind Utah's Enabling Act, congress now has a policy to keep the land in federal ownership. In 1976. But they said not to worry, we're going to give you payment in lieu of the property taxes you would otherwise generate. And they said it's going to be great, fair taxable value. We're going to give you payment in lieu of taxes. We get dollar an acre rick when they feel like paying it 

Rick Green

what a joke. I just want to put out one quick thing to our viewers that are always want to know where is that in the constitution? So it's article three and it's all this list of original jurisdiction and I'm assuming, ken, it's just the and those in which a state shall be a party. Yeah, article force, oh, the original jurisdiction, that's right, yeah, yeah so. So that's how you can go straight, because you're the, the state's a party, so you should be able to get directly to the supreme court.

And then the clause that you're talking about for um, for the lands you said. That's article four, section three, paragraph two. Congress should have power to dispose of and make all needful rules, regulations respecting the territory or other property belonging to the united states, and nothing in this constitution shall be so construed as to prejudice any claims of the United States or any particular state. So, yeah, very, very rarely, ever, ever talked about. Is there a chance of getting other states to join you on this, like Nevada and some of the other.

Ken Ivory

Yeah, the phone's been ringing off the hook all day. Cool, yeah, so you guys just filed.

Rick Green

you guys just filed. What's the best way for people to follow the suit? Obviously, they can't influence the Supreme Court, but we want to use this to raise awareness, again, to the rights, as to why the states have been so cheated on.  

Ken Ivory

Exactly, Rick, but think about it, the Louisiana purchase changed the world economically, right? It's the freedom that our pursuit of happiness, ingenuity, changed the world. It changed the world. So you had people going out and doing economic activity – Life, liberty, property, pursuit of happiness. Freedom, right, it’s the freedom that our pursuit of happiness ingenuity changed the world So the Louisiana purchase was 530 million acres. If the other states join in, this is 640 million acres. So take half of that off the table for national park.

Rick Green

I mean the use of the land, the economics that could come from this four states to take care of their debts. I mean there are so many positive outcomes that can come from this. Man. I hate to cut you off. We are out of time. I want to make sure that people stay plugged in and I guess next step that you would come back and keep us posted on this. When would you know if the Supreme Court will hear it? Is this likely something they hear next year?

or is there time to hear it in this-

Ken Ivory

 Yeah, they've got this short session that they do during this term right, and so that's the idea.

Rick Green

I know they're hearing some cases in October on Title IX and some of the other things. Is there any chance of getting in during that?

Ken Ivory

That's the idea. That's why it was filed when it was, because they've got this short session and because this is a matter of just extreme constitutional import. This, literally, is an environmental, economic, constitutional renaissance. Right now, the forests, the federal government get this. They manage our forests for maximum combustion.

Rick Green

Yeah, yeah, no, there's so many reasons. It's an emergency, literally for them to hear it.

Ken Ivory

If they take it, we'll know in the next few months if they're going to take it in original jurisdiction. If they don't. It goes down to a special master and then we try it through like you would another case, but we're hoping and hopeful that Supreme Court takes it up. So if you know any Supreme Court justices, you know any of their clerks.

Rick Green

Well, I was going to say, I mean, one action item would be even, especially if you're in a Western state to to call your legislators and say, hey, why aren't we joining this thing? Or call your attorney general's office and why aren't we on this thing? We need to be joining this lawsuit with with Utah, they're leading the way.

Ken Ivory

Yeah, that's right, that's right. So amicus briefs, anything like that, in support. This is a massive undertaking that really can change the constitutional trajectory of our country.

We put the federal government back in that few and defined box. Oh, yes, and right now they're taking mineral revenues they shouldn't have. They're taking timber revenues that don't belong to them, grazing revenues, but worse than that.

Rick Green

And then spending it on things they shouldn't be doing in the first place as well. 100% All right, folks. That was Ken Ivory, state representative from Idaho, talking about this big lawsuit just filed a few days ago. We'll certainly get him back to talk more about it. Hopefully we'll be talking about it on a Good News Friday sometime in October if the Supreme Court takes it directly, and if not, it may be months and even years for this thing to find its way to the Supreme Court and finally be settled, but this is a step in the right direction. So I feel like today's almost a Good News Friday program, but it is good news because you joined us today. Thanks for listening to the WallBuilder Show. Thank you.