The Property Clause

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting . . . other Property belonging to the United States. . . .

—Judge Ryan T. Holte

Introduction

The original meaning of the Property Clause grants the federal government power to hold and dispose of land. At the time, dispose meant to manage or govern the land, but the clause did not grant unlimited power to retain and keep property in perpetuity. This view of land disposal changed as the country expanded west. Today, the federal government owns roughly twenty-eight percent of the United States: 640 million acres of land with fifty-six percent of those acres in only eleven contiguous western states.¹ This essay contrasts the federal government’s original grant of power to hold and dispose of property with its contemporary practice of retaining property.

History Before 1787

Before the Revolution, some (but not all) colonial charters gave large expanses of land to colonies. After 1776, debates arose surrounding the title, governance, management, and disposal of the western lands claimed by several of the original states. The states with land wanted to retain it, and the landless states argued the colonial charters should instruct the federal government to hold the land for the benefit of all.² In Fletcher v. Peck (1810), Chief Justice John Marshall wrote this “momentous question . . . threatened to shake the American confederacy.”³ Indeed, these disputes nearly halted ratification of the Articles of Confederation.

In 1780, the Continental Congress attempted to reconcile these disputes. Congress first urged colonies to cede their lands to the United States. Congress next issued a resolution recommending “the unappropriated lands that may be ceded or relinquished to the United States, by any particular states . . . shall be disposed of for the common benefit of the United States.”⁴ On March 1, 1781, the day the Articles of Confederation went into effect, some states ceded their “western lands” to the United States to act as an “impartial arbiter” over land disputes.⁵ The central government then disposed of the majority of the ceded lands through privatization. These sales generated revenue to pay war debts and the expenses of the budding nation.

In 1787, at around the same time the Framers were drafting the Constitution, Congress passed the Northwest Ordinance to govern the land northwest of the Ohio River. The Ordinance facilitated additional land transfers to the United States, created the first federal territory, and established a legislative framework for creating new states.⁶ The Ordinance provided: new states would be on an equal footing with the original states; Congress would have a limited governing role over federal land after statehood; and states were prohibited from interfering with federal regulations “necessary for securing title.”⁷ In a letter to George Washington, Richard Henry Lee explained the Northwest Ordinance was seen as “preparatory to the sale of the lands.”⁸

The Constitutional Convention

On August 18, 1787, the Constitutional Convention referred to the Committee of Detail a list of powers for the legislature, including the power to “dispose of the unappropriated lands of the U. States.”⁹ On August 30, 1787, Gouverneur Morris of Pennsylvania recommended the Convention consider somewhat different language: “The Legislature shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the U. States.”¹⁰ This motion was agreed to with only Maryland dissenting.¹¹ With these changes, the provision gave Congress authority to dispose of or sell property, but not to retain or hold property.

The placement of the Property Clause also provides context to its meaning. The Framers situated the Property Clause in the same provision of Article IV as the Territories Clause, which grants the federal government power over its territories. (See Essay No. 144.) The Clause further follows the Admissions Clause, which requires the consent of both Congress and a ceding state to create a new state from the ceding state’s property.¹² (See Essay No. 143.) Finally, the phrase “all needful rules and regulations” mirrors the language of the Necessary and Proper Clause, which gives Congress broader incidental powers.¹³ (See Essay No. 66.) Relatedly, the Federal Enclave Clause authorizes federal land ownership within a state only after the state consents to the “Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings” in furtherance of an enumerated power. (See Essay No. 65.) The Property Clause, read within the broad constitutional structure, therefore gives the federal government power to manage and dispose of acquired property within the boundaries of a state. As Professor Robert Natelson has noted, “‘other Property’ was land within the boundaries of a state, owned by the federal government.”¹⁴

The Property Clause was initially introduced to permit land ownership with limited control by the federal government. By design, the federal government then served as an “impartial arbiter” to dispose of unappropriated lands within new states. There would now be an express enumerated power that both the Northwest Ordinance and Articles of Confederation lacked.¹⁵

The Ratification Debates

In Federalist No. 7, Alexander Hamilton observed “[t]erritorial disputes have at all times been found one of the most fertile sources of hostility among nations.” In Federalist No. 38, Madison remarked the Northwest Ordinance governed territories “without the least colour of constitutional authority” under the Articles of Confederation. The Ordinance also did not resolve territorial disputes between the states free from federal control of public lands.

But the Property Clause had well-understood limits. Post-ratification correspondences confirm the federal government’s power under the clause is directed to the disposal of property.¹⁶ In a May 17, 1788, letter, Madison observed “the establishment of the new Govt. will thus promote the sale of public lands.”¹⁷ Madison’s letter suggests the federal government would permanently hold land under the Federal Enclave Clause only with the express permission of a state. Indeed, in 1803, Gouverneur Morris noted he originally wished to write the Property Clause to allow future acquisitions of land—such as Canada and Louisiana—to be held in perpetuity as federal provinces.¹⁸ Morris’s disappointment suggests the Framers’ final language did not permit the Property Clause to empower permanent land ownership by the federal government unless explicitly enumerated in the Constitution—especially given the Founders’ skepticism toward the new federal government.¹⁹

Early Practice

As the United States grew in square miles and added new states, disputes arose regarding the title to “unappropriated lands.” This history further reflects the original understanding that the Clause never included permanent federal ownership.²⁰

In 1790, for example, North Carolina ceded land to the federal government. This land became part of the Southwest Territory and later, in 1796, the State of Tennessee.²¹ But there were questions about ownership of the public land in Tennessee: did it belong to the new state, or did Congress retain ownership? In 1796, Tennessee Governor John Sevier wrote to Tennessee Representative Andrew Jackson arguing that without title to the underlying unappropriated land of Tennessee, “we should not equally stand possessed of those free and independent rights the original States enjoy.”²² Jackson agreed ongoing federal land ownership was inconsistent with state equality, writing “the right to the Soil” was “firmly invested in the sovereignty of the State.”²³ Later in 1796, Tennessee declared Congress had no claim to the unappropriated lands, as the acts of admission reserved none.²⁴

In 1800, a congressional committee appointed to investigate Tennessee’s land claims reported that the regulatory power was ceded to the state, but the title to the land in Tennessee remained with the federal government.²⁵ Speculators and squatters’ rights, however, were already facts of life in the land the federal government retained, making the congressional report effectively meaningless. In 1833, President Andrew Jackson vetoed a bill that “failed to recognize the necessity of permanent disposals of federal public land holdings.”²⁶ Jackson’s veto message reaffirmed the federal government was obligated to “dispose[] of [the public lands] for the common benefit of the United States, according to the compacts of cession,” and the “remaining unsold [land] shall be abandoned to the States and the machinery of our [federal] land system entirely withdrawn.”²⁷ In 1841, Congress made Tennessee the agent for management and disposal of the land.²⁸

Judicial Precedent

Early U.S. Supreme Court cases emphasized the Property Clause’s disposal power. Mayor of New Orleans v. United States (1836) ruled the treaty ceding the Louisiana Purchase to the United States from France did not authorize the federal government to gain title to and dispose of land claimed by the city of New Orleans.²⁹ This decision was silent on the federal government’s permanent retention of public land under the Property Clause. Instead, early cases emphasized the federal government’s temporarily held “power to dispose of” land.

United States v. Gratiot (1840) ruled the Property Clause permits some federal management of public lands for national purposes.³⁰ The Supreme Court’s broader interpretation of the Property Clause justified the government’s retention and leasing—not just sale and preparation for sale—of public land.³¹ Pollard v. Hagan (1845) demonstrated a more limited interpretation of congressional power over federal land within the states.³² Its holding applied to the ownership of land under navigable waters. Later water-rights cases refused to extend Pollard to dry land.³³

Irvine v. Marshall (1857) and Gibson v. Chouteau (1871) reflect a state’s inability to interfere with the federal government’s disposal power.³⁴ Irvine signified broad authority for the federal government over its property in the territories “to be disposed of . . . as the government may deem most advantageous to the public.”³⁵ By contrast, states are constrained from “interfer[ing] with the government while it owns the public lands or in the legally effective transfer of such lands.”³⁶ In Gibson, the Court reasoned any measure a state takes to deprive the transferee of “the right to possess and enjoy the land” constitutes “a denial of the power of disposal in Congress.”³⁷ Gibson was more emphatic than Irvine, stating that Congress’s power to control and dispose of property was “subject to no limitations.”³⁸ Neither case mentions retention powers—only disposal powers.

Camfield v. United States (1897) was a first step in a growing and more expansive view of the federal government’s property power. As the Court explained, “[t]he general government doubtless has a power over its own property analogous to the police power of the several States,” and a “different rule would place the public domain of the United States completely at the mercy of state legislation.”³⁹ Camfield affirmed Congress’s broad power as a proprietor, allowing the federal government to prohibit—and directly punish—trespassing on federal land. Congress could also police conduct on private land when that conduct directly interferes with the federal government’s property rights. The Court recognized “[t]he government has the same right to insist upon its proprietorship of [its property] that an individual has to claim [their property].”⁴⁰

The leading modern case is Kleppe v. New Mexico (1976),⁴¹ which deviates from the original meaning of the Constitution. The dispute related only to wild burro management on public lands, but the Kleppe Court applied the Property Clause broadly to give Congress extensive power over public lands—irrespective of disposal, retention, or use of the lands—“without limitation.”⁴² The Court expanded the general scope of the Property Clause.⁴³ Contrary to the Property Clause’s original meaning, courts have unjustifiably given this dictum undue weight.

Four months after Kleppe, Congress passed the Federal Land Policy and Management Act of 1976 (“FLPMA”). This statute declared “public lands [will] be retained in Federal ownership, unless it is determined that disposal of a particular parcel will serve the national interest.”⁴⁴ The FLPMA radically shifted public land policy and effectively repealed older public land disposal laws.

Open Questions

• Under modern precedent, the Supreme Court reads the Property Clause broadly to allow the Federal government unlimited disposal and control of property, but it has yet to address any limitations on retention of federal land. The State of Utah challenged the perpetual federal retention of unappropriated lands under the FLPMA as unconstitutional—seeking 18.5 million acres of land currently managed by the Bureau of Land Management with no designated federal purpose. While the Supreme Court denied the original jurisdiction case in 2025, the State of Utah has already commented on other legal options.⁴⁵ Will a future Utah land case, or another similar case, elicit a review of the Framers’ original understanding of constraints on federal property retention when land is not used in service of an enumerated power, and potentially reintroduce prohibitions on retention of land “without limitation”?

1. Carol H. Vincent & Laura A. Hanson, Cong. Rsrch. Serv., R42346, Federal Land Ownership: Overview and Data 1, 20 (2020). ↩︎
2. Gary Lawson & Guy Seidman, The American Experience with Territorial Governance, in EU Law of the Overseas: Outermost Regions, Associated Overseas Countries and Territories, Territories Sui Generis 417 (Dimitry Kochenov ed., 2011). ↩︎
3. 10 U.S. 87, 142 (1810); Paul W. Gates, History of Public Land Law Development 49–51, 59–73 (1987). ↩︎
4. 18 J. Cont. Cong. 915 (Oct. 10, 1780). ↩︎
5. Andrew Jackson, Veto Message of December 4, 1833, in 3 A Compilation of the Messages and Papers of the Presidents 57–58 (James D. Richardson ed., 1911); Donald J. Kochan, Public Lands and the Federal Government’s Compact-Based “Duty to Dispose”: A Case Study of Utah’s H.B. 148—The Transfer of Public Lands Act, 2013 B.Y.U. L. Rev. 1133, 1153–1157 (2014). ↩︎
6. Gregory Ablavsky, The Rise of Federal Title, 106 Cal. L. Rev. 631, 643–44 (2018). ↩︎
7. Id. at 644; Jeffrey M. Schmitt, Limiting the Property Clause, 20 Nev. L. Rev. 145 (2019). ↩︎
8. Letter from Richard Henry Lee to George Washington (July 15, 1787), in The Papers of George Washington, at 258–60 (W.W. Abbott ed., 1st ed. 1997); Letter from Richard Henry Lee to George Washington (Oct. 11, 1787), in id., at 370–71. ↩︎
9. 2 Farrand’s 321, 324. ↩︎
10. Id. at 466; Gates, supra at 73–74. ↩︎
11. 2 Farrand’s 466; Gates, supra at 74. ↩︎
12. Art. IV, § 3, cls. 1, 2; Eric Biber, The Property Clause, Article IV, and Constitutional Structure, 71 Emory L. J. 739, 756–61 (2022). ↩︎
13. Robert G. Natelson, Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327, 348 (2005). ↩︎
14. Id. at 359. ↩︎
15. Kochan supra at 1155 n.91; Biber, supra at 771. ↩︎
16. Kochan, supra at 1159–67. ↩︎
17. Letter from James Madison to George Nicholas (May 17, 1788), https://perma.cc/42E7-5KZ5. ↩︎
18. 3 Farrand’s 404; Gates, supra at 74; Natelson, supra at 368; William Michael Treanor, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, 120 Mich L. Rev. 1, 14–15 (2021). ↩︎
19. Id. ↩︎
20. Schmitt, supra at 159. ↩︎
21. Samuel C. Williams, The Admission of Tennessee into the Union, 4 Tenn. Hist. Q., at 291, 293, 303, 309, 312 (1945); Act of Apr. 2, 1790, 1 Stat. 106; Southwest Ordinance, 1 Stat. 123 (1790). ↩︎
22. Letter from John Sevier to Andrew Jackson (Dec. 12, 1796), in 1 The Papers of Andrew Jackson 102 (Sam B. Smith & Harriet Chappell Owsley eds., 1980). ↩︎
23. Letter from Andrew Jackson to John Sevier (Jan. 18, 1797), in id. at 116–118. ↩︎
24. Gates, supra at 54. ↩︎
25. H.R. Rep. No. 6-57 at 97–99 (1800). ↩︎
26. Kochan, supra at 1163. ↩︎
27. Jackson, supra at 68; Kochan, supra at 1163–65. ↩︎
28. Gates, supra at 54. ↩︎
29. 35 U.S. 662, 662 (1836). ↩︎
30. 39 U.S. 526, 538–39 (1840). ↩︎
31. 39 U.S. at 534; Kochan, supra at 1173. ↩︎
32. 44 U.S. 212, 220, 224 (1845). ↩︎
33. Scott v. Lattig, 227 U.S. 229, 244 (1913); Texas v. Louisiana, 410 U.S. 702, 713 (1973); Arizona v. California, 373 U.S. 546, 597–98 (1963). ↩︎
34. 61 U.S. 558 (1857); 80 U.S. 92 (1871). ↩︎
35. 61 U.S. 558, 561–62 (1857). ↩︎
36. Kochan, supra at 1175 (citing Irvine, 61 U.S. at 561–62). ↩︎
37. 80 U.S. at 100. ↩︎
38. Id. at 99. ↩︎
39. 167 U.S. 518, 525–26 (1897). ↩︎
40. Id. at 526. ↩︎
41. 426 U.S. 529, 539 (1976). ↩︎
42. Id. ↩︎
43. David E. Engdahl, State and Federal Power over Federal Property, 18 Ariz. L. Rev. 283, 349–58 (1976). ↩︎
44. 43 U.S.C. § 1701(a)(1). ↩︎
45. Press Release (Jan. 13, 2025), https://perma.cc/9FTB-U982. ↩︎