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Vol. 15, No. 02
January 18, 1999
Table of Contents

More on Property Rights

History of Federal Land Control
by Alton S. Windsor Jr.

In 1992 the United States government held title to 724 million acres of land within the boundaries of the 50 states. More than half of the land in the eleven westernmost states is federally administered, along with over ten million acres east of the Mississippi River. Of this, only 22 million acres, which are a part of our defense establishment, can be classified as a constitutionally justified withholding from rightful owners: states and individuals. The history of this gigantic fraud is known and understood by few Americans, and it is precisely this lack of knowledge which has permitted radical environmental organizations — in collusion with the federal government — to frame the debate over use, ownership, and protection of public domain.

Any discussion of government (public domain) land, private property rights, and their historical development in the United States must be prefaced with the observation that it was the promise of private land ownership — farms, businesses, homes — that drew early colonists to the shores of America. Even Roger Williams, remembered mostly for his fight for religious freedom, argued that the King had no patent on land which rightly should have been bought from the Indians. He was arguing for private property.

Whose Domain?
Where did public domain come from in the first place? Since there was no such thing as federal land prior to the Revolutionary War, our government’s claim to ownership of undeeded lands was simply usurpation of seven of the original states’ claims to unexplored "Western Lands" which predated British capitulation in the 1793 Treaty of Paris. Six states did not claim Western Lands and were obviously agitated when the Continental Congress, in an attempt to recruit military volunteers, promised land as a bounty to be apportioned among the states in the same proportion as other war expenses. Feeling that this was grossly unfair, the six non-claiming states demanded that all Western Lands should be considered common property — which ipso facto meant federal property. Verbal posturing became heated between the two sides and it was almost in desperation that the Continental Congress pledged that all land ceded by the original states to the federal government "shall be disposed of for the common benefit of the United States, and be settled and formed into distinct republican states, which shall become members of the Federal Union, and have the same rights of sovereignty, freedom, and independence, as the other States."

In March 1783, rebellion was advocated by disgruntled military veterans who were still waiting for their promised bonuses. Brigadier General Rufus Putnam, in an effort to obtain redress of grievances, put together a proposition for Congress which ultimately resulted in the formation of a land-holding entity known as the Ohio Company (which counted George Washington among its supporters). The Ohio Company contracted with Congress on October 27, 1787 for the purchase of a million and a half acres for one million dollars. The land would be divided into 36 square mile units called townships, a concept already in use in New England. All this had been set in motion by the ceding of claimed land by seven states to the federal government as part of a "common fund" for management and disposition.

However, managing public domain means control at least until sold and it is the manager’s discretion whether or not to sell. The pattern to be followed for decades had been set. As future events would show, Thomas Jefferson’s words at the time demonstrated prophetic wisdom when he insisted that the federal government should sell all its vast domain and then "never after, in any case, [have it] revert to the United States." His admonition was not heeded. Private property advocate Wayne Hage writes in his definitive book Storm Over Rangelands, "In the public domain Congress could govern directly, it could raise needed revenue by sale of land, it could create new states. The public domain was the new government’s greatest asset. It was the first instrument of expanding federal power."

A Look Back
The Northwest Ordinance of 1787 provided for the establishment of new states, specifically stating that they would not receive title to land within their borders but rather that the federal government would retain ownership and sell directly to private parties. Congress fixed a minimum land price of $2 per acre in 1796, with credit available, and shortly thereafter reduced the minimum sale from 640 acres to 160 acres. As new states were admitted to the Union — such as Louisiana, Mississippi, Alabama, and Missouri — the enabling acts required that the state constitutional conventions contain language which would retain for the federal government ownership of all "the waste and unappropriated lands" — meaning all that was not sold.

Westward migration became a flood after the War of 1812, far outstripping the ability of surveyors and auctioneers to keep up with land-hungry pioneers. The General Land Office, a bureau of the Treasury Department, was charged with administering the sale of land, but many individuals and families settled beyond the paperwork and became known as "squatters." The only way "possession becomes nine-tenths of the law" is if the sovereign (rightful owner) accedes. If this is the case, then preemption is said to have taken place. Since the federal government was the sovereign and did not give up its title to squatters, measures were taken for the military to forcibly evict trespassers. Lacking troops for any measure of effectiveness against the squatters, Congress authorized squatters to remain as temporary tenants. Eventually the General Land Office gave fee title to the settlers. It was through this process that vast acreage of federal land became privatized.

By 1862 trans-Mississippi migration was in full swing. Congress passed the Homestead Act, which allowed settlers to claim 160 acres free of charge as long as certain easily-met stipulations were carried out. The problem, which was not grasped by Eastern congressmen, was the fact that in the arid West sections (a tract of 640 acres), not acres, were needed for viable enterprises. This, coupled with prohibitions against any conveyance of title in efforts to gain larger tracts, forced early ranchers to establish their base on a homestead and graze their cattle on adjacent federal lands. In order to secure proprietorship (grazing rights) or preemption of "their" portion of range, they claimed the water originating or flowing through it. This was legal because of an act of Congress which gave prior users vested (first) rights to the water.

Water became king as ranchers raced to claim water rights on federal land, assuming that eventually land titles would follow for those who used land that was worthless without water. In fact the Supreme Court in 1890 decreed, "We are of the opinion that there is an implied license, growing out of the custom of nearly a hundred years, that the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them where they are left open and unenclosed, and no act of government forbids this use.... The government of the United States, in all its branches, has known of this use, has never forbidden it, nor taken any steps to arrest it."

It seemed that at this point preemption was a given. How futile this assumption would prove to be.

Socialized Forests
It was in the late 1800s that the concepts of watershed protection and forest reserves blossomed within the fertile minds of early "preservationists." In concert with these paleo-environmentalists, railroad interests organized an expedition to the fabled area discovered by Jim Bridger and John Coulter — later to be known as Yellowstone. Dreamed-of profit from railroad-transported tourists galvanized Northern Pacific barons into a frenzied lobbying effort in Congress during the winter of 1871-72 — which resulted in the creation of Yellowstone National Park. Once the device of reservations was well-established for park purposes, it was only a matter of time before general forest reserves began to be established.

On March 3, 1891 Congress passed the Forest Reserve Act, which gave a President power to unilaterally withdraw from future disposal portions of the public domain as forest reserves. Such an act would prohibit settlers from entering. No consideration was given to the fact that all the land to be set aside would be within the boundaries of one state or another. The law even stipulated that land so designated need not have commercial stands of timber and could even be covered with "undergrowth."

Early promoters of the Fabian socialist doctrine of government management and control over public land were Gifford Pinchot, George Vanderbilt, Charles Deering, and Clarence King.

The Forest Reserve Act of 1891 was so vague that administrators and legislators made up the rules as they went. One reserve after another was proclaimed by Presidents Harrison and Cleveland. This was followed by the creation of the Forest Service in 1907 and, years later, by the addition of the Bureau of Reclamation and Bureau of Land Management as part of the Interior Department. The Interior Department, in turn, would exercise authority over millions of acres of sagebrush, juniper, and grass — 90 percent of what was once the "free range."

Far from its original, ostensible purpose of protecting forests, the federal government has now established, and is responsible for wildlife refuges, national monuments, national parks, national recreational areas, national historical parks, national battlefields, military parks, memorials, historic sites, national preserves, national seashores, parkways, lakeshores, national rivers, reserves, wild and scenic rivers, and national trails. Much of the early federal land grab came as a result of Machiavellian maneuvers by monied Eastern interests, who saw to it that their private land holdings in the West were deliberately overgrazed. In their minds federal control would eventually mean favorable treatment for their mining and timber enterprises, since money in the right hands creates conditions favorable for exploitation.

States with significant public domain are at a distinct disadvantage because, of course, the federal government does not pay property tax and enterprises which are fortunate enough to produce something on government land pay the owner a fee of one sort or another for the privilege. If states owned all the land within their boundaries they would be free to sell land or derive income from permitted use.

Within the last two decades the Rotweiler of federal entities, the Environmental Protection Agency, has essentially taken over management of federal lands as its mandate for control has exploded. The time has long since past for the federal government to get out of the business of being landlord and policeman for property which it illegally holds. Politicians have fostered the notion that only the federal government can protect the environment and therefore a majority of individuals see nothing wrong with federal ownership and control. Let the states and citizens decide what should be done with their own land.

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