INSTRUCTOR: James B. Snow LESSON: History's Lessons: Politics, Policies, and Laws COURSE

INSTRUCTOR: James B. Snow
LESSON: History's Lessons: Politics, Policies, and Laws
COURSE: National Lands Training for BLM and Forest Service Line Officers and Program Managers
OBJECTIVES
Upon successful completion of this lesson, participants will:
1.Understand how the public land laws and policies evolved.
2.Identify the most significant laws and policies and discuss their impact.
3.Interpret how the past has affected the present, and how it may define the future of the Nation's publicly owned lands.
NARRATIVE:
I. WHY IS HISTORY IMPORTANT TO FEDERAL LAND MANAGERS?
A. As is often said, "Those who ignore the past are condemned to repeat it."
B. To intelligently and consistently manage Federal lands and resources, we should understand the context in which laws were made and appreciate the forces which shaped policy.
II. FOUR PERIODS
It is useful to divide the evolution of the history of the public lands into four periods discussed below.
1.Acquisition of the Public Domain - 1776-1867
2.Disposition (Disposal) - 1776-1891
3.Reservation - 1891-1905
4.Management and More Acquisition - 1905-Future
III. ACQUISITION OF THE PUBLIC DOMAIN
A. Summary: The public domain originated when 7 of the original colonies were obliged by the other 6 colonies to cede over 236 million acres between their western boundaries and the Mississippi River. This established the concept of “common ownership for common benefits” that underpins our present ownership and management of public lands and resources. What was later described as America's "manifest destiny", the westward expansion of the nation continued unabated for almost a century.
The land acquired by the United States was not vacant, it was occupied by Native Americans. Various theories attach to the legal effect of this American expansion. Title to land by conquest is a theory traditionally accepted in international law. Some scholars contend that all we acquired from England and other colonial nations was the right to govern, tax, and to purchase land from the Indians through treaties. If that is the case with Indian tribes, then we are probably not through paying the bills. However it is described, the effect westward expansion is well known -- the Indians were displaced, exterminated or confined to reservations.
B. The Public Domain.
The public domain lands of the U.S. originated when seven of the former colonies (Massachusetts, Connecticut, New York, Virginia, North Carolina, South Carolina, and Georgia) ceded 233 million acres to the Federal Government between 1781 and 1802. These cessions were forced by the other six colonies (New Hampshire, Rhode Island, New Jersey, Pennsylvania, Delaware, and Maryland) in order to:
1.Bring about equality in land resources among the various states.
2.Provide tangible assets to the Federal Government.
3.Strengthen the Nation’s political and economic solidarity fostered by common land ownership. Remember this goal of common ownership for common benefits, as it affects future laws and policies.
C. Chronology of Acquisition and Expansion.
1.Louisiana Purchase, 1803. President Jefferson's Administration negotiated from France the purchase of the Louisiana Territory (523 million acres) for less than 5 cents per acre.
Theodore Roosevelt, an unabashed expansionist had some strong views about the inevitability of American acquisition of the western lands. Writing in The Winning of the West, Vol. 4, he observed:
". . . the Americans would have won Louisiana in any event, even if the treaty of Livingston and Monroe had not been signed.... The winning of Louisiana was due to no one man, and least of all to any statesman or set of statesmen. It followed inevitably upon the great westward thrust of the settler-folk; a thrust which was delivered blindly, but which no rival race could parry, until it was stopped by the ocean itself."
2. Florida, 1819: Purchase of Florida from Spain and two small parcels (43 million acres) for 16 cents per acre.
3.Pacific Northwest, 1846: As a result of a treaty with Britain compromising the boundary between Canada and the United States, the United States acquired the Oregon Territory (181 million acres) at no cost.
4.California and the Southwest, 1848: By the Treaty of Guadalupe Hidalgo, Mexico ceded the entire southwest and California (335 million acres) for 5 cents per acre.
5.Texas Purchase, 1850: The Federal Government purchased from Texas 79 million acres for 20 cents per acre.
6.Gadsden Purchase, 1853: To provide a railroad corridor, the Gadsden Purchase acquired 19 million acres from Mexico for 53 cents per acre.
7.Alaska, 1867: Alaska was the final addition to the Public Domain. Over 366 million acres were purchased from Russia for a little over 2 cents per acre.
D. Indian rights.
Treaties were made to acquire lands from Indians and extinguish all Indian title in the lands so they could be opened to settlement and conveyance under Federal land grants. The principal purpose of treaties was to extinguish Indian claims, provide for peaceful and compatible coexistence of Indians and non-Indians, and provide compensation to the Indians for lands, which were being settled by the United States citizens.
The compensation actually paid to Indians and Indian tribes is hard to calculate, but includes hundreds of millions in individual settlements authorized by statute, over $850 million paid pursuant to the Indian Claims Commission Act of 1946, and $900 million and 40 million acres granted under the Alaska Native Claims Settlement Act of 1971.
E. The "Public Domain".
These various cessions and acquisitions constitute the original "Public Domain." It contained approximately -
1,804 million acres of land,
33 million acres of water
which is nearly 2.8 million square miles (exclusive of land already in private ownership and not including land subsequently purchased by the Federal Government). All of the Public Domain was subject to disposition under the general land laws passed by the Congress since the late 18th century until passage of the Federal Land Policy and Management Act ("FLPMA") in 1976.
Lands subsequently obtained in exchange for public land or timber were also subject to land laws applying to the original Public Domain, but purchased lands were not.
F. Constitutional Basis for the Control of the Public Lands.
The Constitution provides the fundamental basis for the control, acquisition, disposition, use and management of all Federally owned lands. Article IV, Section 3, paragraph 2 of the Constitution states:
The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States.
The Supreme Court has repeatedly said Congress has full power to sell, give away, or retain the Public Domain and other property of the United States for such purposes as a sees fit. Since the founding of the Nation, Congress has done just that ... sometimes with abandon.
IV. DISPOSITION/DISPOSAL PERIOD.
A. Summary: For discussion purposes, some generalizations about this period are worth considering:
1.National policy was to settle and develop the west through agriculture and natural resource exploitation by disposing of significant amounts of the public domain. It worked.
2.Some legislation was enacted to ratify what was already happening - to legalize or anticipate squatters and preemptors.
3.Fraud marked many of the disposal programs.
4.Land use and landownership patterns established in this era include legacies of frustration for modern land managers, complicating everything from grazing administration to wilderness classification.
5.During the past 200 years, Congress has given away, sold, or otherwise disposed of nearly two thirds of what was once public domain in an attempt to pay the Nation's bills and foster orderly settlement of the continent. The story of that disposition is a fantastic one, but also a sad one marked by opportunism, fraud of monumental proportions, and a legacy of unsolved problems.
6.The major disposition era was from 1776 to 1891. The legal authority for disposition technically lasted until 1976 with the passage of the Federal Land Policy and Management Act. However, it ended for all practical purposes in 1934 with the passage of the Taylor Grazing Act.
B. Disposal Issues.
Between 1776 and 1891, nearly everyone agreed that title to lands should not be permanently retained by the Federal Government, but should be passed on to States and private owners as rapidly as consistent with orderly development. For years, what to do with the public lands generated more oratory and legislation than any other subject. Early debates primarily dealt with the purpose and terms of disposal.
1.Should the Government give land away to promote development?
2.Should land be sold to provide revenue?
3.Should land have to be surveyed before disposal?
4.Should surveys be rectangular or metes and bounds?
5.What price should be charged for land? Cash or credit?
6.What should be the maximum or minimum area available to an individual?
7.What about donations for education and transportation (canals, roads, railroads)?
Transcending these issues was the debate about who and what should benefit from the public lands. Should they be administered for the benefit of all the States or should they be managed for the newer States into which they were being divided? The original 13 States (and particularly the 7 who ceded their land) felt the public domain had been acquired "By the Common Sword, Purse, and Blood of all States" united in a common effort. Purchases had been made from a common treasury; therefore, the land should be disposed of primarily to defray the expenses of the revolution and benefit all States. As can be seen from the passage of the ordinances and acts that followed, Congress disagreed with the original 13 States. The Federal Government's expanding generosity to new States seemed to have no limit to residents of the old States. However, the seeds for future so called "sagebrush rebellions" were sown in the late 18th century.
C. Administrative Machinery over the Public Lands.
1. Since production of revenue was a prime objective of early public land management, the Secretary of the Treasury had responsibility for surveying the lands, establishing offices for their sale, issuing patents and maintaining records.
2. In 1796, Congress created the position of Surveyor General to take charge of the public survey system.
3. In 1812, Congress created the General Land Office and the duties previously undertaken by the Secretary of the Treasury were transferred to a Commissioner.
4. For 37 years, the General Land Office remained at Treasury, but in 1849, it was transferred to the newly formed Department of the Interior. The General Land Office (GLO) was the predecessor to the Bureau of Land Management.
D. Disposition Laws.
1.The first comprehensive public land statute was the General Ordinance of 1785. This was enacted by the Congress of the Confederation in response to offers of relinquishment of western lands by the states. The stated policy:
”The inappropriate lands that may be ceded or relinquished to the United States, by any particular state ... shall be disposed of for the common benefit of the United States.”
a. It established the public land survey system of 6 mile square townships for the sole purpose of making land easily identifiable and salable in subdivided tracts.
b. After survey, the lands would be sold, half in townships and half in 640 acre blocks, at auction for cash to the highest bidder for not less than one dollar an acre.
c. Section 16 of each Township was reserved to states and territories for schools.
d. Four additional sections reserved for later disposal.
The intent of the General Ordinance of 1785 was to promote settlement and to raise revenue. It failed to raise much money because land was so plentiful that it was cheaper for a person to buy it from the States, and most immigrants could not afford to raise $640 in cash. However, this early sales policy influenced everything that followed. Political organizations followed the same township and section grid pattern. Farmers plowed along the boundary lines and the idea of contour plowing and the management of watersheds was set back 50 to 100 years.
2. Northwest Ordinance of 1787.
a. This law required new States joining the Union to respect the right of the Federal Government to dispose of public land within their boundaries. The original 13 States disposed of their land without restriction. The new States didn't like the restriction in the Ordinance and wanted the public lands ceded to them. This tension between newer western states and the east continues to this day.
b. The Northwest Ordinance of 1787 provided for one-third of the sale price to be paid at time of sale and the balance to be paid in 3 months.
During this period public lands were also sold in large blocks to private companies. The purpose was to get the buyer to promote resale to actual settlers. There was no upper limit on how much land a company or individual could buy.
Because of the large amount of land available, the slowness of Government to survey, and the frustration of payment procedures, people simply squatted on the land.
3. Acts of 1796, 1800, and 1804, allowed delayed payments to solve problems of land not selling. These acts also raised the minimum price to $2 per acre. However, these acts also failed to solve the disposal problem since many people simply didn't have the money to buy the land. Many people never paid their debt, and many private relief bills were passed. Theoretically, the Government could evict the settlers and confiscate the land, but such action was a practical impossibility. Sales did increase, but payments lagged, and by 1820 the Government was owed $21 million.
4.Land Law of 1820. The thrust continued to be toward disposal of the public lands to promote development and raise revenue for the country. In 1820, the General Land Sales Policy was revised almost to its final form.
a. Sales on credit eliminated.
b. Minimum price was reduced to $1.25 per acre.
c. Minimum acres reduced from 640 acres to 80 acres (in 1832, it was again reduced to 40 acres).
d. No restriction on the maximum area one person could purchase.
e. Lands were not classified.
5. Military warrants.
a. During the Revolution and the War of 1812, a cash strapped Congress offered land bounties to recruits in the military. The amount of land offered varied according to rank. Privates in the Continental Army got only 100 acres, whereas Generals got 1,100.
b. The Land Ordinance of 1785 set aside 1/7th of the townships surveyed for the location of military land warrants.
6. Squatting. Squatting was a common practice even before 1776. While the Federal Government was strongly adverse to the practice of squatting, individual States and the public at large felt differently. Some Congressmen championed squatters as very respectable citizens, the hardy yeomanry, meritorious and industrious citizens, and benefactors, not malefactors. Nonetheless, the Federal Government used troops to remove squatters, burn their cabins, and plow up their crops. However, after the troops left, the squatters moved back in and rebuilt. In 1838, in what is now Iowa, 20,000 to 30,000 squatters were on land which was never offered for sale. Vigorous people bent on occupying territory were not deterred by legislation unsuited economically, socially, or psychologically to conditions. Even though anti-trespass laws were passed, and troops were used, squatting could not be controlled. To protect themselves from speculators, subsequent surveys, and sales, squatters formed claim associations. Basically, the associations protected the rights of the squatters when the land was surveyed and sales were held. Outsiders or intruders faced the association's form of justice if they tried to acquire land claimed by squatters who had developed the land. Again, many relief bills were passed to protect the squatters. Growing pressure to legalize squatting led to passage of Preemption Acts and the Homestead Acts.
7.Preemption Act of 1830 was the beginning of the end of the sale system. Preemption was the right of the squatter to be protected against the speculator and to gain title to his land without competing for it at auction. The 1830 Act:
a. Was for one year only.
b. Applied only to surveyed land.
c. A settler could obtain up to 160 acres.
d. Paid $1.25 per acre without bidding.
e. Required proof of settlement.
A number of subsequent Preemption Acts were passed with special conditions for specific areas to "right" what Congressmen felt were "wrongs" under the 1830 Act - such as allowing unsurveyed land to be preempted due to the Government's slow progress in surveying land. The Preemption Acts emphasized settlement rather than revenue. It was considered a victory for the West (which then was still basically east of the Mississippi River). While the Act was intended to favor the settler/squatter rather than the speculator, it was also used for fraudulent acquisition.
8. Preemption became basic policy in 1841 with passage of the "Log Cabin Bill." This Act: