The Preemption Act of 1841
How America became ruled by private land ownership, at least the beginning of the story...
While writing my historical novel about logging at Lake Tahoe in 1859, this question keeps coming up: How did America shift from illegally occupied lands to signed treaties to private land ownership? Turns out, a plethora of legislative acts rolled out, one after another, designed to enable some people to thrive while ensuring others did not.
Welcome to my mini-series for paid subscribers of Brief Historical Revelries, highlighting some of American’s most impactful legislative acts that continue to shape the American West. While elected officials, then and now, continue to make decisions with long-lasting effects, designed to uplift certain populations while subjugating others, it seems prudent to dip down memory lane and learn how certain historical policies are shaping our future.
The Preemption Act of 1841
By the mid-1800s, the United States government was struggling to secure the entire continent as their new country. They didn’t want the Mormons creating their own island nation in Utah Territory. They didn’t want Great Britain to claim any more of the Pacific Northwest (and thus agreed to split the PNW along the 49th Parallel north creating what is today the western United States-Canada border). They were already fighting a war against Mexico to secure Texas and other parts of the southwest as part of America.
But how do you claim a nation that’s already occupied by squatters and long-standing Indigenous Nations? You incentivize.
The Privatization of Indigenous Lands
Whenever the United States signed a treaty with another nation, like the Treaty of Oregon in 1846 with Great Britain or the 1855 Middle Oregon Treaty the Wasco and Warm Springs Nations, they called the newly acquired areas “public lands.” Once surveyed, these lands were put up for auction. Squatters already squatting there wanted first rights of refusal. The fledgling U.S Government needed to fundraise for things like schools, forts, and roads to connect their new great nation. Also, they Union needed to fund the impending war as Southern and Northern colonies argued about human rights (by which I mean slavery).
Meanwhile, Eastern American business owners argued over how land sale profits in the West were distributed and adamantly opposed ownership incentives that encouraged grunt laborers to head West, following their so-called Manifest Destiny1. The 1830s saw a series of temporary preemption laws passed by Congress, most of which were thwarted by political infighting.
Preemption /prēˈem(p)SH(ə)n/ NOUN: 1. the purchase of goods or shares by one person or party before the opportunity is offered to others. 2. the right to purchase public land by preemption.
Finally, ten years later in 1841, Congress passed The Preemption Act, which satisfied the majority of white male Americans. For every acre of public land sold, half the proceeds went to the state in which that land was located, the other half went to the federal government (this version of profit sharing was redacted one year later in 1842).
The Preemption Act of 1841, also known as Squatters Rights, allowed qualifying Americans to purchase up to 160 acres of land from the U.S. government for $1.25 per acre. Squatters who were already living there, building houses, seeding farms, and digging irrigation ditches had the option to purchase land prior to public auction.
Qualified buyers for preempted land were defined as “the head of a family, or widow, or single man, over the age of twenty-one years, and being a citizen of the United States, or having filed his declaration of intention to become a citizen…”
Exclusion by Omission
Of course, language in the Preemption Act excludes women, Indigenous People, People of Color, and anyone deemed unworthy of becoming a naturalized citizen (special discrimiation was bestowed upon Chinese and Mexicans during this time in American history). By writing such specific language of who does qualify, Congress was able to exclude thousands more by default without having to be explicit.
In later sections of the Preemption Act2, there is language referring to “he or she,” which I presume means that a man could bring his wife along, who could not own land herself but had to promise to abide by the same rules as her husband. But woohoo, the existence of women is acknowledged!
Rules of Preemption Include Things Like:
Applicants agree to actively reside on and improve said land for 5 years.
6 months of delinquency means the government can reclaim property for resale.
A man can seek preemption only once and cannot own more than 320 acres in another state (dissuading dual citizenship).
Applicants promise that their intention for preempting land is not for speculation or resale. “I promise that I my intention is to live on and improve this land.” (That’s a leaking statement if I’ve ever heard one.)
Ah, policies made on promises, how refreshing… Of course, corruption ruled the day and thousands of non-squatters preempted land in multiple states. Also, companies seeking large swaths of land for logging, mining, and other extractive industries encouraged employees to preempt land, fronting them the money sometimes, and then transferred ownership into the business’s name.
Is The Preemption Act Still in Effect?
No, the Preemption Act of 1841 was repealed by Congress in 1891 and replaced by the Land Revision Act (more on that later).
Encyclopaedia Britannica, are we still using this lovely resource? I am.
Read it for yourself here: 1841, September 4 - 5 Stat. 453 - Preemption Act of 1841