Land Policy

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LAND POLICY. Classical microeconomic theory posits "land," or natural resources, as one of the three factors of production, along with labor and capital. Ideally, the business firm optimizes the mix of labor, capital, and land to produce at the highest profit, and the theory describes a point of equilibrium and balance. The history of North America, however, at least since the beginning of the eighteenth century, was one of continual disequilibrium and imbalance due to the rapid growth of the white and black populations, and the parallel rapid decline of the American Indian population. The shift of land from American Indian possession to U.S. government ownership and then into private property was a continuing political issue from the founding of the American Republic to the Great Depression of the 1930s. American policy-makers frequently disagreed about some of the methods in this process, but there was a widely held consensus in the electorate that the United States had the right to obtain American Indian lands and to convert them as rapidly as possible into private property.

American policymakers inherited from Great Britain a way of looking at North American land known as the "doctrine of discovery." This legal formula proclaimed U.S. sovereignty over the lands within the defined boundaries of the nation. It did not mean that Americans could simply steal land from the American Indians as needed. Rather, the doctrine of discovery meant that the United States had the exclusive right to negotiate with American Indian nations for the permanent cession of land to U.S. ownership. The Articles of Confederation, the federal Constitution, and the first Congress elected under the Constitution all insisted on federal, national supervision of this land transfer process. The negotiated treaty—not the cavalry—was the instrument by which the United States assembled its public lands patrimony. In the intricate details of more than 350 separate land cession treaties with American Indian nations may be found the history of the American public lands formation.

In 1783, when Great Britain recognized American independence, there was no public land of the American nation, even though its boundaries extended from the Atlantic to the Mississippi, and from the Great Lakes to the Gulf of Mexico. The states had claims to vast lands west of the Appalachian Mountains. That balance changed when the separate states ceded their claims to the lands northwest of the Ohio River to the federal government. In 1785, the original public domain became the Northwest Territory. From the first trans-Ohio settlement at Marietta, all the way to the Pacific Ocean, the lands that passed from American Indian possession to the United States became part of the public domain. And between 1785 and 1934, more than 70 percent of the public lands from Ohio to California passed into private ownership. Only the lands in the original thirteen states, plus Vermont, Kentucky, Tennessee, and Texas, were outside the public domain.

Policymakers in the early Republic contemplated a regular process to transfer land from American Indian nations to private farmers, ranchers, miners, and lumbermen. After Senate ratification of a particular land cession treaty, the lands acquired from that American Indian nation became a part of the public domain and were managed by an extensive federal agency known as the General Land Office (GLO). The GLO had two great functions: first, to apply the rectangular survey to the public domain so that order and predictability could be imposed on the lands; and, second, to manage the transfer by sale, donation, or grant to states, business firms, and private individuals of the lands. The GLO's surveyor-general and his crews took their axes, surveying chains, and pencils and notebooks across each newly acquired tract and subdivided the land into parcels of 160 acres, known as a "quarter-section," because in the language of land, one square mile (640 acres) was known as a section. Congress, meanwhile, was busy creating new public land districts with a GLO agency known as the land office at the center of each district, a ripe source of patronage and politics. After completion of the survey, the surveyor-general turned over the plats to the commissioner of the GLO, who then advised the president of the United States to declare lands in the district open. The president set a date for a public auction, and then land-lookers and would-be buyers examined the papers and sometimes the lands before the day set for competitive bidding on parcels. On occasion, auction day saw so much activity and competition that the phrase "doing a land office business" was coined to describe a scene of frenzied commerce. Those parcels that did not receive a bid at auction then went for sale at the minimum price set by Congress, $1.25 an acre after 1820. Parcels might be claimed at the land office in ways other than cash purchase, such as land grants given as pensions to soldiers of the War of 1812. Some tracts of public land were withdrawn from private selection before the auction, such as the parcels awarded to aid the construction of the great transcontinental railroads. The railroad became the first private owner, seeking settlers to purchase the land, convert it to farmland, and fill the railroad cars with outgoing produce.

And so the process went from American Indian land cession to GLO survey to presidential declaration, and finally the conversion to private property by an individual's entry selection at the district land office. This idealized process often had complications. So-called "squatters," also known as pre-emptors, often claimed land parcels without paying for them. Sometimes the squatters acted even before the surveyor-general had done his work. Too regularly, squatters seized parcels of Native land before the treaty cession, thereby provoking a bloody crisis that made imperative the treaty negotiations to obtain the land cession and prevent more trespassing.

The American political system devoted much attention to land policy issues from the earliest days of independence. The Congress operating under the Articles of Confederation established the basics of the rectangular survey system in the Northwest Ordinance of 1787. The Congress of 1796 set the minimum price and acreage standards for private purchasers: two dollars an acre, and 640 acres. The Democratic-Republican opposition called both minimums into question, and thereafter, the trend in public land policy was toward ever-smaller, ever-cheaper standards. By 1820, the price had dropped to $1.25 an acre for as little a purchase as 40 acres. The Democratic Party of Andrew Jackson made lenient treatment for the squatter its centerpiece of land policy, with Congress repeatedly forgiving prior squatting on the public lands and extending to the squatters extra time to pay for their parcels. In 1841, this became general policy with the Preemption Act that made squatting legal. The opposition Whigs hoped to use some of the revenue generated by public land sales and to return most of it to the older, seaboard states. That same year, their policy became law with the 1841 Distribution Act.

The politics of the public lands also played a part in the emergence of the third party system of Republicans and Democrats between 1854 and 1896. The 1856 Republican slogan of "free soil, free labor, free speech, free men" made the connection between the economics of the firm from an antislavery perspective: the public lands should be given away at no cost to those who pledged to work them with their own labor, also known as the "home-stead" idea. Proslavery elements in the Democratic Party in the late 1850s opposed homestead as "squatter sovereignty," and it was not until the Republicans controlled both the Congress and the executive during the Civil War that the homestead bill became law in 1862. And yet the Republicans did not limit their public land policy to the homestead principal. If free land could help a poor but willing laborer build a farm, then free land could also help a poor but willing capitalist build a railroad. And free land could help a state build a land-grant university. Especially during Abraham Lincoln's administration (1861–1865), tens of millions of acres of public land were granted to railroads as an aid in raising capital to complete their construction. Similarly, the Congress and President Lincoln oversaw the granting of millions of acres of the public domain to states for higher education purposes. Some of America's leading colleges, notably Cornell University, were established from the proceeds generated by public land donations to the states. Additional Republican legislation aided miners, ranchers, and lumbermen with generous donations of free lands from the public domain.

After 1862, settlers were slow at first to take advantage of the Homestead Act, but with each passing decade more and more men and women staked their claim to a parcel on the public lands, even as America became a more urban, industrialized nation. The high point for homestead claims came between 1900 and 1920, a time marked by steep commodity prices for farm products. Still, after 1890, it became harder for would-be settlers to find good land for farming. The nation had more than half-a-billion acres in public lands, but much of that acreage was on desert or otherwise inhospitable lands. Congress responded to a perceived shortage in available land in two ways. First, in a bitter irony, it passed various "surplus land acts" that carved 100 million acres from existing American Indian reservations in the West, on the theory that the Indians were not using the lands. Those lands were placed in the public domain for settlers to claim, and a century later gave rise to disputes over jurisdiction between Indians and non-Indians. Second, in 1902, Congress passed the Reclamation Act that established federal assistance to irrigate the dry lands of the West and prepare them for settlers.

The surplus land acts and the Reclamation Act marked the end of congressional efforts to make the public lands available for any settler who wanted a farm. The long slide in farm prices after World War I reduced the number of prospective pioneers. The New Deal's Taylor Grazing Act of 1934 clearly marked the permanent shift in public land policy from sales and grants toward reserving the public lands as federal property to be managed for the benefit of ranchers, other producers, and the general public. Even before 1934, Congress had begun to take lands out of the public domain and place them into permanent reserved status, most notably the national park system and the national forest system. Throughout the twentieth century, and into the twenty-first, both systems grew significantly in size and service area.

As a developing nation in the first century and a half of its existence, the United States used its public lands to assist in economic growth. For much of that time, land policy was designed to extend the value of labor and capital. A developing nation that was often short of funds in its treasury found the public domain an easy source for financing popular endeavors, and the constant goal of federal policy was converting the public lands to private property. By contrast, since 1934, the mature, industrial United States has reserved its public lands for a variety of purposes, including wilderness for its own sake.


Feller, Daniel. The Public Lands in Jacksonian Politics. Madison: University of Wisconsin Press, 1984.

Gates, Paul W. History of Public Land Law Development. Washington, D.C.: Government Printing Office, 1968.

Johnson, Hildegard. Order Upon the Land: The U.S. Rectangular Survey and the Upper Mississippi Country. New York: Oxford University Press, 1976.

Kappler, Charles. Indian Affairs: Laws and Treaties. Vol. 2. Washington, D.C.: Government Printing Office, 1904.

Oberly, James W. Sixty Million Acres: American Veterans and the Public Lands before the Civil War. Kent, Ohio: Kent State University Press, 1990.

Opie, John. The Law of the Land: Two Hundred Years of American Farmland Policy. Lincoln: University of Nebraska Press, 1987.

Peffer, E. Louise. The Closing of the Public Domain: Disposal and Reservation Policies, 1900–1950. Stanford, Calif.: Stanford University Press, 1951.

Pisani, Donald J. To Reclaim a Divided West: Water, Law, and Public Policy, 1848–1902. Albuquerque: University of New Mexico Press, 1992.

Robbins, William G., and James C. Foster. Land in the American West: Private Claims and the Common Good. Seattle: University of Washington Press, 2000.


See alsoFree Soil Party ; Indian Land Cessions ; Irrigation ; Northwest Territory ; Reclamation .