Commentary: What the disclaimer clause was intended to do

2013-09-04T08:00:00Z Commentary: What the disclaimer clause was intended to doBy THOMAS MITCHELL Elko Daily Free Press
September 04, 2013 8:00 am  • 

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

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 Read additional musings on his blog at

Copyright 2015 Elko Daily Free Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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