All the People's Land: The Wealth of the Nation

There was nothing but Land: not a country at all, but the material out of which Countries are made.

—Willa Cather, My Antonia (1918)

Early in 1994, the newly appointed head of the BLM made the customary courtesy call to meet the newly elected governor of a western state. The first and only real question the governor asked was, "When are you going to give us our land back?" He was not joking. With a high level of discomfort the unwelcome answer was delivered: "Governor, the land can't be given back, because it was never yours to begin with. When your territory petitioned for statehood and the Congress admitted it to the union, your state agreed to cede all claims to unappropriated public domain lands. Public ownership of these lands is rooted in the union of the original thirteen colonies." The governor's comments exemplify a fundamental and widespread misunderstanding about the law and history of the western United States.

When the Declaration of Independence was signed, the colonies of Connecticut, Georgia, Massachusetts, New York, North Carolina, South Carolina, and Virginia held claims to the land between the Appalachian Mountains and the Mississippi River. Maryland's legislators contended that "the lands claimed by the British Crown ... if secured by blood and treasure of all, ought in reason, justice, and policy ... be considered a common stock." Maryland had good reason to argue that this land ought to be "common stock" since Maryland had no land claims outside its boundary. Fearing that states with land claims to the west would have an unfair political and economic advantage, Maryland refused to sign the Articles of Confederation.

In 1780, New York ceded its lands west of the Appalachian Mountains. Maryland reciprocated by signing the Articles of Confederation. By 1802, all of the "land claim" states had ceded their western lands. Land claim states such as Virginia and Georgia ceded their claims under the proviso that new states formed out of the western lands would receive the same privileges as the original states. As the western territories entered the Union, lands not specifically titled to individuals or corporations by the federal government generally remained under public ownership. In exchange for extensive land grants within their territories, prospective states relinquished claims to the unappropriated lands inside their boundaries. Congress required that these agreements be reflected in each new state's constitution as "ordinances irrevocable."

Those who want the federal government to give the public lands "back" would have to get in line behind the descendants of the Native Americans and the land claim colonies such as New York and Georgia and perhaps others who ceded or lost their claims through war or treaty. As recently as the 1990s, the "Wise Use Movement" and state's rights advocates litigated their right to take over public lands. The Supreme Court has never ruled in their favor, however, and has allowed U.S. citizen ownership of public land to stand. The concept of public land, public domain, or land belonging to all the citizens of the United States is a concept basic to the formation of the Union itself. The public lands belong to all the people.

The United States encompasses a diverse 2.3 billion acres of land. The fifty states range in size from Rhode Island's 677,120 acres to Alaska's 365 million acres. Historically 1.8 billion of these acres were public domain lands belonging to all citizens of the United States. All acquisitions and cessions after the formation of the Union were part of the public domain. The peoples' land stretched from the Appalachian Mountains to the Pacific plus Alaska.

Land: The Wealth of the Nation

To the fledgling nation, the seemingly endless western lands represented wealth. Under the leadership of such visionaries as President Thomas Jefferson, the nation's land base grew rapidly during the early years. The first major addition to the public domain was the Louisiana Purchase in 1803, when 529 million acres between the Mississippi and the Rocky Mountains were added to the Union. By the 1850s, Manifest Destiny, the dream of spanning the continent from the Atlantic to the Pacific, was realized. The capstone of our public domain was the purchase of Alaska, the "northern icebox," from the tsar of Russia in 1867. Known at the time as "Seward's Folly," referring to the secretary of state, this purchase of 365 million acres cost $7.2 million, or 2 cents per acre. Table 11 and Figure 1-1 summarize the acquisition of the public domain.

Cash was scarce and land was plentiful in the formative years of the United States. The first major land policy was the Land Ordinance of 1785 that established the rectangular land survey system still employed today. The measure also called for the orderly settlement of public land. Early leaders agreed that public land should be sold to raise revenue and to reward soldiers and sailors for their service. Early surveys set aside land to be granted to soldiers. An army private who fought in the Revolutionary War was granted 100 acres of land while a major general was granted 1100 acres.

Public land policy debates extended to the earliest years of the Union. Thomas Jefferson wanted land sold to small farmers as the foundation to build a self-sufficient nation. Alexander Hamilton, then secretary of the treasury, wanted the government to sell land at wholesale prices to "the rich, the able, and the well-born," arguing that this would build a strong economic base for the nation. Subsequent laws allowed for both points of view. Wealthy speculators who often realized great profits from land resale or development purchased the best and most productive land, particularly in the East. Auctioning off the public domain favored rich businesspeople who had cash in hand. In later years, many settlers obtained land at little or no cost. Most of them cleared the land for agriculture and farming.

The Land Rush and Land Grants

The 1800s marked the great American land rush. Local land offices were established, and by 1805 hundreds of thousands of acres were sold. The sale of public land increased so rapidly that, in 1812, Congress established the General Land Office to "superintend, execute, and perform all such acts and things touching the public lands of the U.S." Within a few years the General Land Office commissioner was viewed as one of the most prestigious assignments in government. In 1849, Abraham Lincoln sought the commissioner's post and was reportedly deeply disappointed when he did not get the job.

Various laws and policies regulating the disposal and price of public land were enacted and modified. In the 1820s, tracts as small as 80 acres could be purchased for $1.25 an acre. The debate over offering free land to settlers gained support in the 1840s. The Armed Occupation Law of 1842 provided 160 acres of land to each person willing to fight the Indians in Florida with the caveat that they occupy and cultivate the land for five years. In the 1850s, Congress offered 320 acres to each man and 640 acres to each couple willing to settle in the "Oregon country." The Homestead Act was passed in 1862 and provided free land—160 acres—to single persons over twenty-one, heads of households, or widows if they lived on the land and cultivated it for five years. During its existence from 1812 to 1946 the General Land Office disposed of over 1 billion acres of land. Thus was the idiom "land office business" permanently etched into the American language.

The first land grants authorized by the Land Ordinance of 1785 were for national defense and education. Military service was rewarded with title to land. Section 16 of each township was reserved for the states to finance education through the sale of land. This amount was increased in 1848 when states were granted two sections per township, later to four sections with the admission of Utah, Arizona, and New Mexico into the Union. In 1841, states were granted 500,000 acres of land for internal improvements such as canals and roads.

The idea of land grants as an incentive to encourage settlement and conquer the frontier prevailed beyond the Civil War. In 1862, Congress granted the Central Pacific and Union Pacific railroads alternate sections of public land 10 miles on each side of every completed mile of the transcontinental railroad. The largest railroad grant, 39 million acres extending from Lake Superior to Puget Sound, went to the Northern Pacific Railroad. Settlers complained that the railroads were given a monopoly to the western lands however, and railroad grants were curtailed after 1871. The granting of alternate sections of land resulted in the checkerboard land ownership pattern that often confounds public land management today. Railroad grants between 1862 and 1871 amounted to nearly 132 million acres. This is a land area equivalent to Pennsylvania and California combined.

The Enduring Legacy of Early Land Laws

Both enacted policies and the absence of policy can lead to problems. The Land Ordinance of 1785 reserved for the federal government a one-third interest in gold, silver, lead, and other minerals taken from the public domain. But other than the War Department's interest in lead for ammunition, there was little concern over public domain minerals. That changed in 1849 with the California gold rush. In the absence of national policy, miners and prospectors developed their own rules about how to stake and title claims.

A gold or silver find in the West often followed a general pattern with rumors of wealth enticing the adventurous to leave a job and start prospecting. The following characterization describes what many mining camps may have been like:

If minerals were discovered, a fairly stable mining camp emerged. This was usually followed by an influx of shifty-eyed bartenders, hurdy-gurdy girls, untrained lawyers, the wildest outlaws imaginable, and peripatetic preachers, all (or most) of whom sought to prey on the miner. The lawless element eventually produced the vigilante committee. Order was usually restored about the time the mines were worked out.

Miners established mining districts and miners' courts to enforce their own rules. When the first mining law was legislated in 1866, it favored miners' interests by declaring that "mineral lands of the public domain ... be free and open to exploration and occupation." Royalties and other taxes were not assessed on hard-rock minerals removed from public domain lands. Federal mining law was amended in 1872, adding that "valuable" mineral deposits be free and open to exploitation and purchase for as little as $2.50 per acre.

The 1872 Mining Law remains the law of the land. After failing in his attempt to update the measure, Secretary of the Interior Stewart Udall left office in 1969 proclaiming that mining law reform was one of the major unfinished pieces of natural resource policy. In 1993, Interior Secretary Bruce Babbitt and the 103rd Congress nearly succeeded in crafting a reform that would have eliminated provisions allowing mining companies to privatize public land, given public land managers the ability to say no to mining in sensitive watersheds and landscapes, and exacted a royalty on minerals taken from public lands. With agreement reached on most issues, they ran out of time when the Congress adjourned. The new congressional leadership of the 104th Congress, however, had little desire to take up mining law reform. The antiquated 1872 Mining Law remains in effect today—and the need for its reform is as crucial as ever.

By the Civil War, problems resulting from a lack of policy to guide public domain timberlands began to surface. Theft of public timber increased and land fraud was rampant. For example, members of the 1879 Public Land Commission visited California's redwood region and reported:

Little huts or kennels built of shakes that were totally unfit for human habitations, and always had been, which were the sole improvements made under the homestead and pre-emption laws, and by means of which large areas of redwood forests, possessing great value, had been taken under pretenses of settlement and cultivation, which were the purest fictions, never having any real existence in fact, but of which due proof had been made under laws.

By the 1870s, the General Land Office's primary thrust was dealing with the large-scale abuse associated with public land. Congressional legislation continued to favor development and commodity extraction. The Timber and Stone Act of 1873 authorized the sale of nontillable public timberland for personal use for $2.50 per acre. The Free Timber Act of 1878 gave miners the right to cut timber on public domain mineral claims for mining and domestic purposes.

With much of the eastern United States settled by the end of the Civil War, the frontier expanded westward. Land, the prospect of cheap land, remained the currency to entice settlers west. Much of the western landscape, however, included desert lands much less hospitable than those in the East. Under the erroneous presumption that trees prompted rainfall, Congress passed the Timber Culture Act in 1873. Citizens would be given 160-acre parcels of land provided they planted 40 acres into trees spaced no farther than 12 feet apart and kept them growing for ten years.

Many citizens believed the West to be a vast garden land where eastern farming practices, which depended on adequate rainfall, could flourish. A series of wet years following the Civil War compounded commonly held beliefs that "rain would follow the plow." Farmers cultivated the semiarid rangelands west of Kansas and Nebraska.

During the 1870s, one of the West's preeminent explorers and surveyors, John Wesley Powell, began to speak of the West as largely semiarid. On April 1, 1878, Powell presented Interior Secretary Carl Schurz with his "Report on the Lands of the Arid Region of the West." Powell was among the first to suggest that farming practices in the West would require irrigation and that fundamental reforms to common practices of land development such as homesteading were needed. Powell argued that while individual farmers could irrigate small tracts by diverting water from nearby creeks, a larger government presence was needed to build large dams and coordinate major irrigation projects.

American politics and policies of the time did not reflect Powell's view. The Desert Land Act of 1877 enabled settlers to buy 640 acres of desert land for $1.25 per acre if they constructed irrigation systems. Although the Desert Land Act was more successful than the Timber Culture Act, only 65,000 of the 260,000 entries were successfully patented. Sadly the net effect of these policies was to lead land-hungry settlers into an impossible task only to experience failure.

Tragedy of the Commons

Manifest Destiny was largely achieved by the end of the nineteenth century. In the eastern United States, where virtually all land was in private ownership, recognition of the need for a change in national policy was building. East of the Mississippi River, forests had been cleared by settlers for fuel and agriculture or by timber companies for railroad ties and lumber. The nation's prime hardwood forests of the Appalachians and the great white pine forests of the Northeast and Midwest had been clearcut with no effort to reforest cutover lands. Often forest fires were intentionally set on the cutover lands to eliminate slash. Many of these fires blazed out of control, however, some taking human lives and burning thousands of acres of forest and all vegetation along with valuable topsoil. When rains came, the result was serious soil erosion and flooding.

The 1871 Peshtigo Fire in northeastern Wisconsin, the most devastating forest fire in U.S. history, killed 1500 people and burned 1.28 million acres. Other fires in Michigan, again the legacy of timber cutting, burned another 2.5 million acres that same year. Forest cover was destroyed and topsoil was either turned to ash or washed away once the forests were burned. The land lost its resilience to dampen floods or temper drought. Watershed function—the basic ability to catch, store, and release water over time—was lost on millions of acres of land. It would take decades, if not centuries, to restore the landscape. By 1900, some 80 million acres of charred and decimated stump-lands lay east of the Mississippi.

Settlers used the land as they wished—generally with little knowledge or concern for the long-term health of natural resources. Rivers and streams were dredged for gold and other precious metals. The waters of many western rivers were diverted from their channels and put to the "beneficial use" of irrigation on the land or canals for barge traffic, leaving previously perennial streams dry during critical times of the year. Complex water rights laws were passed by many western states that asserted ownership of water separate from the land. Rivers were dammed and waters were impounded for various purposes. Diversions dramatically altered riparian function, blocked fish passage, and changed natural river dynamics. Soil erosion and watershed degradation affected millions of acres.

Barbed wire was strung across public domain lands, yet livestock trespass was common. By the 1870s, federal rangelands were greatly overgrazed. In Colorado, 3 million acres of public land were fenced and range wars erupted. In 1887, a severe winter, coupled with malnutrition, killed millions of stressed livestock, bankrupting many cattle companies that were involved in land-damaging and speculative grazing practices. Vicious grazing wars between cattlemen and sheepherders broke out over water supplies. As the turn of the century neared, western rangelands were severely degraded. Concerns continued to grow that mining, timber, and grazing interests had monopolized the frontier.