LAND ACTS. United States land policy has favored putting public lands into private hands, spending income from the sale of public lands to pay public debts and finance public transportation enterprises, adjudicating private land claims in areas acquired by treaty, extinguishing American Indian land titles to a great extent, and enabling tribal management of remaining lands in Indian country. Although these policy goals have evolved and been contested frequently, public policy has favored the wide holding of private property and its productive use.
The Treaty of Paris of 1783 ended the American Revolution and put about 270 million acres of public land in the hands of the Confederation government. The Confederation Congress passed the Land Ordinance of 1785, putting government in the land disposal business. The Land Ordinance of 1785 set the pattern for public land distribution. Public land was to be surveyed, sold at a high minimum price at auction, occupied thereafter—military bounty warrant claimants excepted—and one section set aside for schools. Congress tinkered with the system in 1796, 1800, 1820, and 1841, lowering the price and the minimum lot size to stimulate sales. Preemption by actual settlers on surveyed land, giving them the right to purchase that land before others, became fixed in 1841 and extended to unsurveyed lands in the 1850s. The 1862 Homestead Act offered 160 acres of public land for a transaction fee to an occupier-developer who worked the land for five years. The Timber Culture Act of 1873 and Desert Land Act of 1877 put more public land into private hands for small sums.
Congress gave land away to stimulate enterprise. The Mining Law of 1866 and General Mining Law of 1872 gave claimants to mineral lands on the public domain free use of land for mining purposes. Congress funded the construction of the transcontinental and other railroads with public land grants.
Congress in 1872 turned slightly away from disposal to preservation in withdrawing two million acres for Yellowstone Park. In 1879 it created the Public Land Commission to classify lands and bring the first signs of management to the public domain. In 1891, Congress authorized the president to withdraw forest lands from purchase, and the authority to withdraw public lands for preservation expanded dramatically in the twentieth century.
Congress set a policy of adjudicating private land claims with the acquisition of lands from Great Britain, Spain, France, and Mexico. Most of these lands were along the Detroit River in Michigan, at Vincennes on the Wabash in Indiana, at Cahokia in Illinois, and in Missouri, Louisiana, Mississippi, Florida, California, and New Mexico. The system of adjudication included commissioners who investigated the claims, reviewed documents, and reported to Congress regarding the claims. Specific statutes like the California Land Act of 1851 established such a commission system that heard and decided claims. The parties had the right to appeal decisions to the federal courts.
The policy for American Indian tribal lands in the nineteenth century was extinguishment by treaty or war, or both. Tribal lands were constricted as a result and under constant pressure from federal administrative agencies and state governments until the 1940s, when Congress passed the Indian Claims Commission Act of 1946. Thereunder the tribes started proceedings to recover money for past treaty injustices, at the expense of waiving future claims to land itself. Few tribes recovered land, with the notable exceptions of the Taos Pueblo recovering Blue Lake and acreage within the Kit Carson National Forest and the Zuni recovery of Kolhu/wala:wa in Arizona. Tribal authority over land was confirmed, in part, by the Indian Self-Determination and Education Assistance Act of 1975. The desire of the tribes for greater autonomy and clear sovereignty continues.
Bakken, Gordon Morris. Law in the Western United States. Norman: University of Oklahoma Press, 2000.
Gates, Paul Wallace. Land and Law in California: Essays on Land Policies. Ames: Iowa State University Press, 1991.