Appendix 8
Settlement of the West –
Federal Laws affecting Private Ownership and Federal Preservation
Federal ownership of land generally began after the U.S. Constitution was signed by a majority of delegates in 1787; the 10 Bill of Rights were ratified in 1791. During that time, the original 13 colonies ceded their claims to western lands between the Appalachian Mountains and the Mississippi River to the new national government.
It was customary for the colonies and later Congress, to pay soldiers and officers with land grants in lieu of cash. Bounty Land Warrants were first issued to pay Revolutionary War soldiers. The federal government used land grants to pay soldiers fighting in the War of 1812.
As a new nation, the United States could only lay claim to the land held by the 13 Colonies (Spain ceded Florida to the US, and Florida became a US Territory in 1821; a state in 1845.). The rest of the American Continent was claimed by certain European nations; prepared to enforce their claims militarily.
France claimed ownership of the land west of the Mississippi River to the Rocky Mountains. French explorer Cavelier de La Salle named the region Louisiana after France’s King Louis XIV in 1682. Two decades later, the French established a permanent settlement at the mouth of the Mississippi River; the predecessor to the city of New Orleans.
Great Britain claimed the Northwest down to the 42nd Parallel, called Oregon Country. Spain claimed the southwest part of the continent up to the 42nd Parallel (Mexico won its independence from Spain in 1821, and succeeded to Spain’s land claims). Russia claimed present day Alaska and the Hawaiian Islands were generally ruled by a monarchy until it was annexed by the United States as a territory in 1898; a state in 1959.
Facilitated by open immigration policies and a high birth rate, the population of the United States quadrupled in 50-years; from five million in 1800 to 23 million in 1850.
President Thomas Jefferson purchased France’s land claims in 2003 (Louisiana Purchase). Lewis and Clark and the Corp of Discovery’s expedition (1804-1806) started and ended on the Missouri River near S. Louis. They explored the land north, then west, looking for a waterway to the Pacific Ocean. They, of course, did not find one, but the journals and artifacts they brought back fostered increased settlement of the frontier - by Americans.
The idea that it was the United States’ “Manifest Destiny” to settle all of North America had taken root with the Louisiana Purchase. Other’s followed: The US entered into a treaty with Great Britain for “Oregon Country” in 1846. After the war with Mexico two years later (1848), the US succeeded to Mexico’s claims to the Southwest. The US purchased Alaska from Russia in 1867. Hawaiian Islands; a territory in 1898.
American Indians were another matter. The land claims of the various independent hunter-gather tribes were largely dismissed or reconciled with treaties (broken), conquest and laws favorable to the US Government. Congress built military forts throughout the west, staffed with large contingents of cavalry and foot soldiers; charged with suppressing Indian attacks against the increasing numbers of settlers and miners moving onto the Indian’s traditional hunting grounds.
Battle losses and starvation had largely eliminated the American Indian’s capacity to make war before 1880. They were forced to live on reservations created by Congress. (Appendix 9)
Today, the total land and water surface area of the U.S. approaches 2.4 billion acres of which nearly 2 billion is in the 48 contiguous states, 0.4 billion in Alaska and 4 million acres comprise the Hawaiian Islands.
Since nationhood, the federal government has transferred ownership to all but about 30 percent of the federal land preserve to private interests and the states. Today, most of the land under federal jurisdiction is in the 11 contiguous western states and Alaska. About 64 percent of Idaho is public land; 60 percent of Utah is under federal control and management.
Congress transferred land ownership by passing numerous laws designed to encourage settlement, promote timber harvests and extraction of metals and minerals. Congress also gave large grants of land to the states to help fund public education and certain infrastructure.
However, the federal government’s principal method of privatizing property from the nation’s land and mineral preserve was to use grants - or sale (low-prices) to farmers, ranchers, railroad companies (who sold timber rights for cash) and miners.
To encourage settlement and establish an American presence in the West, Congress passed the Preemption Act of 1841, which sanctioned squatters’ rights and allowed a person to claim up to 160 acres—¼ of a 640-acre section of un-surveyed federal land and later pay a small fee per acre to the federal government for clear title. (A section is one square mile).
In 1843 non-Indian settlers in Oregon Country’s Willamette Valley, mostly U.S. citizens, drafted a constitution for a provisional government that included a provision allowing settlers to claim up to 640 acres of land at no charge. Many of the early Oregon Trail immigrants (1841-1869) were motivated by the prospect of free land in the lush Willamette Valley.
The U.S. Treaty of 1846 with England established the boundary between the two countries at the 49th parallel. Congress created Oregon Territory on August 14, 1848. The new territory included present-day Oregon, Washington, Idaho, western Montana and western Wyoming.
Mexico gave up its land claim south of the 42nd parallel when it lost the war with the U.S. and on February 2, 1848 signed the Treaty of Guadalupe Hidalgo.
Two years later Congress passed the Donation Land Claim Act of 1850, the forerunner to the Homestead Act. The Act nullified provisional land grants; created the Office of Surveyor General of Public Lands to provide deeds to property; and granted 320 acres to a white male, or a white male who was 50 percent Indian, over 18 years of age, who had resided on the property on or before December 1, 1850. If married, an additional 320 acres would be deeded to his wife—essentially grandfathering many elements of the provisional government’s law. Recipients had to improve the property and live on it for four consecutive years from the time they first settled. This law influenced many marriages.
Male claimants who located on property between December 1, 1850, and December 1, 1853, received 160 acres of land, 320 acres for married couples. In 1854 Congress extended the law two more years. Thereafter, people could purchase up to 320 acres for $1.25 an acre—subsequently the price was increased and the number of allowable acres decreased.
Publication of these liberal land grant laws further spurred the flow of Oregon Trail immigrants headed to the Willamette Valley and other locations throughout the West.
The Homestead Act of 1862 superseded the Donation Land Claim Act and provided transfer of 160 acres to a settler—conditioned on them improving the property and living on the land for five years—this law was used extensively in Utah and Idaho.
Early settlers claimed water rights by diverting irrigation water under the “Doctrine of Prior Appropriation—first in time - first in right.” Later, water rights were administered by the laws of each state as opposed to federal law. In Idaho, these laws were codified in Idaho’s Constitution which was approved by the territorial voters on November 5, 1899. (Idaho became a state on July 3, 1890).
The 1862 Morrill Land Grant Act provided land grants to states of 30,000 acres for each member of the state’s Congressional delegation—Senate and House. The grants were for the purpose of providing a source of funds for a state college that taught agriculture, engineering and military tactics. Utah State University and the University of Idaho are the respective state’s land grant “colleges.”
The Pacific Railways Acts of 1862, 1863 and 1864 provided massive land grants, including mineral rights and issuance of government bonds to railroad companies who would build railroad lines throughout the West. The first transcontinental railroad, which was completed at Promontory Summit, Utah, in 1869 received huge land and mineral grants.
Many in Congress expected the railroad companies would subdivide their land-grants and sell the land for purposes of agriculture, townships and timber and mining. This was done in many cases; however, the railroad companies needed cash to finance their enterprise. They sold forested lands to lumber manufacturing companies and investors in large blocks.
The General Mining Laws of 1866 and 1872 generally codified the self-rule methodologies prospectors and miners previously used to govern development of mining districts.
The Timber Culture Act of 1873 allowed homesteaders an additional 160 acres if they planted trees on 40 of those acres. The law’s sponsors thought it would have the greatest use in the settlement of the Great Plains. The law had many application problems, and Congress repealed it in 1891.
The Desert Land Act of 1877 generally granted farmers ownership of up to 640 acres of arid federal land if they brought it under cultivation and irrigation within three years. This law was actively used in the settlement of the arid areas of the Great Basin.
The Timber and Stone Act of 1878 was intended to facilitate logging and mining—allow lands unfit for farming to be sold in parcels of 160 acres for $2.50 per acre to those who certified they were buying the land for their own use. This law was principally used in Oregon, Washington, California and Nevada and heavily abused. Large timber companies and syndicates bought the cheap land through nominal owners and added the property to its land holdings. The law was repealed in 1891.
In 1905 Congress passed a livestock grazing law under which the federal government sold grazing permits on Forest Reserve land as a means of managing livestock access. In 1934 Congress passed the Taylor Grazing Act, further clarifying federal grazing law on all public lands. The 1976 Federal Land Policy Management Act and the 1978 Public Rangelands Improvement Act provided, among other things, grazing fees were to be based on market values. Matters relating to livestock grazing on public lands continue to be controversial.
Concurrent with Idaho statehood in 1890 and under other federal laws, Idaho received federal grants of about 3.6 million acres to finance public education, the penitentiary and other public buildings. Utah received similar grants when it became a state in 1896.
In Idaho, subsequent sales have reduced Idaho’s Endowment Trust Lands to approximately 2.5 million surface acres and 3 million mineral acres—all managed by the Department of Lands with oversight from the State Board of Land Commissioners, a five-member board of state-wide elected officeholders chaired by the governor.
At the turn of the twentieth century, Congress passed he Carey Act in 1894 and the Newlands Reclamation Act in 1902; laws that played crucial roles in the reclamation of southern Idaho’s and Utah’s arid lands - turning sagebrush-covered deserts into agricultural oases.
In Idaho, the Carey Act had its greatest impact in Idaho’s Magic Valley. The Reclamation Act that authorized creation of the U.S. Reclamation Service—now the Bureau of Reclamation—built irrigation storage, flood control and hydroelectric dams throughout Southern Idaho and Utah.
The Taylor Grazing Act of 1934 and the Federal Land Policy and Management Act in 1976 began the national policy of retaining federal ownership of the nation’s remaining land preserve. Legal challenges by “state’s rights” advocates seeking management or control of federal lands within a state’s borders have proven unsuccessful.
Commentary – The Preemption Act of 1841, which sanctioned squatters’ rights, was the law in effect when the first members of the Church settled in the Intermountain West – before the Homestead Act was passed in 1862.
The record is not clear regarding which Federal law was used to authorize construction of the Stone Reservoir in 1921 in which Hal’s grandfather, Thomas William Roe, was employed. (Chapter 20.).