Whose land?

The occasional resurgence of what was originally called the Sagebrush Rebellion in the 80s makes GG wonder how well westerners know how the land they live on (and off of) has been regarded over time.

Now we won’t go all the way back to how land was bought/stolen/conquered from Native Americans. That’s its own story.  Instead let’s think about how the land’s status, once it was incorporated within the legal framework of the United States.

The original thirteen colonies (and Vermont) basically held title to all the lands in their boundaries that was not already private when the United States was formed.  Similarly, Texas was an independent nation prior to being annexed by the United States, so it retained title to public land.  But for the rest of the nation, non-private land first went into federal control when the land was acquired. This started when the various state claims to lands far to their west were ceded to the federal government, which led to the Northwest Territory (now all or part of the states bordering the Great Lakes that were not an original colony).

So the land out west started in federal control, but to what end? Initially the land was viewed as a bank for the national government.  The land would be sold, and those proceeds would then repay the government the costs of obtaining, defending and surveying the land. The only exception were mineral lands, which were to be mined under leases, with a share going to the federal treasury; this exception was effectively demolished in the Gold Rush starting in 1848. Even so, the role of the Federal government remained paramount: in resolving the claims to gold on Mexican land grants, California courts established the precedent that land and minerals not in private hands when Mexico sold lands to the United States at the end of the Mexican-American War were then held by the federal government and did not pass on to the state when the state was formed. (This logic led to the curious situation where mineral lands within Mexican land grants were patented by the United States, giving Mexican land grant owners a right they had not had under Mexican law).

Americans were eager to claim new land, so eager that they often started working land before it was surveyed.  This led to the Preemption Act of 1841, which gave squatters the first right to purchase land once it was surveyed. The rise of the Republican Party in the late 1850s was in part fueled by a desire of pioneers to obtain land even more cheaply, eventually producing the Homestead Act of 1862 (which is all the more remarkable given the government’s need for cash to continue to prosecute the Civil War).  And the Federal government found a new way to leverage its land holdings by giving title to huge tracts to railroads to encourage the expansion of that transportation network.

The only general case where the land actually was transferred to local (non-federal) control was the provision that one of every thirty six sections would be reserved for the financing of public education in states created from this land. But a special case changed the relationship between the government and its lands.

It was quite possible in the 1860s to imagine that the sole purpose of the federal government’s ownership of land was to get rid of it, yet in the midst of this fire sale there was a bill that totally changed the role of the federal government in land management.  If you want to take exception to the idea that the federal government can own land, you probably would want to challenge this piece of legislation, Senate Bill 203 of the 38th Congress.  Signed by Lincoln in 1864, this reserved a small mountain valley as a permanent pleasuring ground. Although the land was transferred to the state of California, the basic principle here was that Congress could in fact decide to prevent land from being placed in private hands (in handing over Yosemite Valley, Congress placed strict limits on what California could do).

Two settlers in the valley challenged this, first in the California Legislature and then in Congress.  Failing only at the very last hurdle in a Senate committee, they did the American thing and went to court. They argued that under the Preemption Act, they, as squatters in Yosemite Valley, were entitled to buy the land.  The government argued simply that the land had never been surveyed and Congress had withdrawn it before it could be purchased. The case rose to the Supreme Court, which held in 1872 (in an opinion written by a westerner, Justice Field, who hailed from California) that Congress did indeed have the power to withhold land from settlement. Congress exercised that power in that same year to establish Yellowstone National Park.

The story of land management since then had to balance distribution against long-term management.  By the 1880s, California’s management of Yosemite Valley was widely viewed as a disaster.  When local advocates wanted to protect sequoia groves in the southern Sierra Nevada from logging, they lobbied the federal government to protect the groves in a national park, declining to ask that the lands be put in the care of the state as had happened in Yosemite.  Similar concerns about the effect of unregulated logging in forests on farms and towns downstream led to the creation of the forest reserves (now National Forests), which tightened the rules under which lands could be claimed. Americans had come to view ownership and management of lands as an appropriate activity of the federal government.

This was never without conflict.  Even after the original battle over Yosemite, logging companies and sheepmen were upset with the withdrawals of mountain lands with their forests and meadows. Although local interests were often important in land decisions, they were not always paramount.  Congress, for instance, ignored California’s appeal to patent the lands claimed in Yosemite Valley. Eventually the General Land Office was replaced by the Bureau of Land Management as the lands left for purchase by the public were unattractive to private ownership. Over time, city dwellers came to view those publicly held lands as lands they had an interest in as much as the rural neighbors to those lands. Wildlife habitat, archeological finds, and scenic areas on these lands came to be seen as having a value to the public. The federal government would be the arbiter between the wishes of local users of the land and the broader public in whose interest the land was now held. In some cases, the land was still used as a commodity, as when parcels in Las Vegas were swapped for private lands within otherwise protected areas.

And so we come to the tensions we see today. Federal management can be viewed as stupid, inefficient, brilliant, or misguided, but it has emerged as something Americans have asked the government to do. If the federal management needs to change, then those advocating such change need to lobby for change as has been done many times in the past. Simply asserting that the federal government has no right to manage land flies in the face of more than 150 years of actual practice and legal precedent.


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