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Fighting for the Homestead

By Blake Bell
8/18/2017 • Wild West Magazine

The Homestead Act of 1862 opened the frontier door for many people, but clashes over free public lands continued until there was enough law and order out West to make a house on 160 acres a safe home.

Late in the winter of 1857 a group of men rode out to speak to a man named Callahan about a title he had acquired to land near Omaha, Nebraska Territory. According to one version of a story with multiple iterations, the squatter who had been occupying the land had been unable to scrounge together the money to purchase it. Callahan had legally acquired the squatter’s land through auction, but unbeknownst to him the squatter belonged to a claim association. Its members now politely requested that Callahan relinquish the land. When he refused, they grabbed him, tied him up and hauled him to the frozen Missouri River. Several of the men began to cut a hole in the ice while others repeated their request. Callahan called their bluff, refusing a second time to give up his holdings. The men then shoved Callahan into the slush hole while loosely holding the rope. The current dragged him under the ice, where he remained for a few excruciating moments before the mob yanked him out to make the request a third time. Although half frozen, Callahan remained defiant. The mob promptly repeated the procedure, shoving Callahan into the hole, pulling him out and demanding he relinquish his claim. This time, the twice-dunked Callahan just lay there atop the ice, too frozen to reply. A “judge” then ruled that since Callahan made no defense, he had relinquished his right to the land in dispute.

Farming one’s own land was the ideal living situation to many in the 19th century. From 1803 to 1848 the United States had acquired through purchase, war and secession hundreds of millions of acres of public land. The undeveloped public lands in the West offered potential economic and social rewards to those willing to cultivate them. While the government was busy debating the most effective way to dispose of these lands, a more proactive citizenry began moving west of the Mississippi with little regard for federal authorization. The rapid acquisition of lands left Congress unable to ensure legal systems were in place to protect both people and property. Settlers moving to these frontier areas were thus responsible for protecting themselves, although they did find help outside the law, as the Nebraska squatter and unfortunate Callahan discovered.

Those wishing to fulfill their dreams of a place of their own in the West had to deal with land neither surveyed nor cultivated. The Land Ordinance of 1785 had provided an organized way to measure and define the land, but survey parties had yet to apply it in the territories. So individuals did what they knew best, defining their land based on the natural features around their claim and starting the arduous task of breaking up the soil. These individuals were known as squatters. They did not own the land; they simply worked it while waiting for the government to figure out how the land would be distributed. It wasn’t until May 20, 1862, nearly 150 years ago, that President Abraham Lincoln signed into law the original Homestead Act, which opened up the West to a broader range of Americans. But there was an earlier, if less liberal and less successful, attempt to formalize the settlement of public lands.

In 1841 Congress passed the Preemption Act, the first permanent piece of legislation designed to distribute existing public lands. Boiled down, preemption gave squatters the opportunity to purchase up to 160 acres from the federal government for $1.25 an acre (that would be $200 for the full amount), provided they built a home, inhabited the claim and worked to improve the land. The claimant also had to have the land legally surveyed and registered in a land office prior to a preemption claim.

The latter proviso did little to prevent squatters from moving on to lands that had not been surveyed. All they had to do was wait. The government would eventually survey their land, and they could then go file a preemption claim. There was one problem: Once that land was surveyed and registered, they had to have the money required to preempt; otherwise, legally, anyone wanting the land could file a preemption claim, or the land would go to auction for sale to the highest bidder.

People looking to make a profit would often buy land at these auctions on the cheap and sell at an inflated price. These speculators were a real threat to squatters already inhabiting the land. The government’s only real presence was by way of land officers and surveyors; an organized enforcement structure was absent. Squatters understood this and took it upon themselves to create claim clubs and associations, protective institutions that operated on the periphery of formal law.

Claim clubs resulted from the government’s inability to protect the interest of squatters. “The laws of the federal government and of the states and territories lagged behind the needs of the people on the frontier, and as a result the spirit of ‘popular’ or ‘squatter sovereignty’ manifested itself,” Benjamin Horace Hibbard wrote in his 1924 book A History of the Public Land Policies. The true nature of the clubs was to prevent speculators from acquiring land in hopes the land remained available for actual settlers. Many observers refer to such clubs’ activities as “extralegal.” In reality they were illegal rogue institutions operating through intimidation, threats and violence. They were above the law because there was no law.

For the most part claim clubs were inclusive; if you were a squatter or an actual settler, you could join. Members could confidently squat on unsurveyed land knowing they would be able to obtain their land after it was surveyed, even if unable to come up with the required payment for preemption. How did they know this? A simple reading of the various claim clubs’ bylaws doesn’t show how far these organizations were willing to go to protect their members’ claims. On the surface the bylaws appear rather judiciary. They outlined the settlement of disputes and established a process for appointing investigators and arbitrators to resolve disagreements amicably, at least in theory.

Preemptors could, and often did, remain on the land after a survey without making the required payment. Such unpaid claims eventually went to auction, at which time the preemptor would have to make final proof and payment, otherwise the land would be sold to the highest bidder. While $1.25 an acre seems a minimal price, many were unable to come up with the $200 required to purchase the full 160 acres. In August 1858 Brownville’s Nebraska Advertiser printed this notice prior to a land auction: “What are those whose all is at stake then to do? What will the man do who has spent his last cent and who has toiled the life nearly out of him? There is but one course left for him to pursue, and that is self protection!” This was the point at which a claim club would assist its members.

First it would try to control the auction through intimidation. In correspondence sent to the New York Daily Tribune in 1857, shortly before the opening of a land office, an Omaha man said that claim clubs “extend their protection over claimants at public sale in order to prevent the speculator from outbidding the actual occupant of the soil and thereby depriving him from its future possession,” and, furthermore, they did not expect any problems at the auction because nobody would “be so mad as to bring upon himself the sure and inevitable vengeance of the squatters.” Claim clubs and their members published threats to let speculators know they were present at an auction.

If that failed and a speculator proved brave (or foolhardy) enough to make a claim on a club member’s land, the association would try other means to persuade the speculator to relinquish his legal right to the land. In many instances claim club representatives waited for the speculator’s arrival and then paid him a visit to “suggest” he relinquish his rights to the land. “The usual mode of procedure in case a claim was bought by a ‘land pirate,’” Hibbard wrote, “was to visit the purchaser in case he were not too far distant….It was not unusual for the members of this committee to carry guns and ropes and to indulge in remarks calculated to stimulate the claim-jumper in his tendency toward a speedy and amicable settlement.” This method of intimidation was usually all that was required to obtain “cooperation.” Rarely, Hibbard says, did the claimant “resist vigorously, but once in a while it required heroic measures to overbalance his greed.”

Such “heroic measures,” as Hibbard wryly termed them, were nothing short of torture, meant to induce fear and inflict pain. In Callahan’s case primitive water torture did the trick. In another instance, related by Omaha newspaperman Alfred Rasmus Sorenson, a claim club mob confronted a man who had bought land “belonging” to one of its members, brought him to a cottonwood tree, cinched a noose around his neck and told him to say his last prayers. The mob then strung him up until he lost consciousness before letting him drop to the ground. When the claimant came to and did not give in to the club’s demands, the boys hauled him up a second time. Upon regaining consciousness, the man remained stubborn, so club members tried a different tack—taking him to a secure place, locking the door and refusing to feed him. According to Sorenson, “extreme torture from the want of food” ultimately forced the man to comply with the club’s demands and quit the claim.

Claim clubs were effective, although it’s unknown how often they tried and failed to convince speculators to relinquish their claims. But what was the actual goal of such clubs? On the surface it appeared they existed to protect actual settlers from speculators. But historian Richard White argues in his 1991 book ‘It’s Your Misfortune and None of My Own’: A New History of the American West, “Members of these claims clubs denounced large speculators, but they themselves were small-scale speculators.” White says that actual settlers interested in only 160 acres of land did not need claim clubs, as the Preemption Act already protected them. He contends that the primary reason to join a claim club was to obtain more than the 160 acres guaranteed by the act. By controlling auctions through intimidation, claim clubs were able to secure additional land at cheap prices, resell it and reap the profits— provided their members could foot the purchase price. But without a thorough examination of claim club membership rolls and the records of each public land auction, it’s difficult to determine how much land actually changed hands in this dubious manner.

The demise of the claim clubs provides some insight into their purpose. By most accounts, they began to disappear after passage of the Homestead Act in 1862. The act, which provided 160 acres of free land to anyone who lived on and improved the land for a period of five years, was designed to eliminate interference by profit-seeking speculators. Indeed, not having to pay $200 was an incentive for many people to go west. The Homestead Act, it appears, ended the need for claim clubs. But is that what happened?

With passage of the act, one could file a homestead claim only on land that had been surveyed; if you had been squatting on land not yet surveyed, you could only file a preemption claim. So, theoretically, claim clubs would have been needed if the land being squatted on was unsurveyed, the required preemption payment was due and the preemptor was unable to pay. Yet, these clubs did not survive, a fact perhaps best explained by the introduction of formal legal institutions rather than the Homestead Act itself. The source of power for claim clubs lay in the inability of the government to protect the rights of preemptors. But, as with other infrastructural institutions, formalized law came to the eastern Great Plains in the 1860s. And since claim clubs operated outside the law, their illegal tactics of intimidation and violence were punishable by the U.S. legal system that spread west with the settlers.

Another kind of claim club did continue to operate after passage of the Homestead Act. These clubs had much larger pieces of land in mind and were determined to prevent both actual settlers and speculators from obtaining land in the West. They were called cattle associations.

Cattle associations flourished, as claim clubs had just a few years earlier, where organized legal institutions had yet to be established. And, like their claim club counterparts, they were extralegal operations that used many of the same heavyhanded tactics. Ironically, the very people the cattle associations sought to intimidate and prevent from staking claims are the very people that had once held the power in such disputes. Historian Everett Dick made this connection in 1970: “Various operations depended upon cooperation….Here, then, was the old scheme in new garb —‘hating out’ a newcomer if he presumed to intrude….In some respects comparable to the claim club, [it] was called a cattlemen’s association, and it denied privileges to those it wished to exclude.” Cattlemen were doing exactly what settlers had done years before to protect and increase their access to economic resources.

Cattlemen grazed herds from the high plains of Texas, Colorado, Montana and Wyoming through Oklahoma, Kansas, Nebraska and the Dakotas. As homesteaders moved westward into these areas, they threatened the livelihood of the cattlemen by plowing up the ground that had been used for grazing and cutting their fences. Cattlemen had already fenced large tracts of public land near waterways and placed armed guards along the fence line. When homesteaders claimed those lands for farming, the range became a battlefield. The conflicts that erupted in the 1870s–80s were often brutal.

In one notable confrontation in 1884 in the Sand Hills of western Nebraska, homesteaders claimed public land that had been fenced in by a cattleman and, after giving due warning, tore down the fences. The homesteaders then used the fence posts as building materials for their prairie homes.When the ranch foreman heard of this, he worked with lawmen to have the homesteaders arrested. Once the homesteaders were behind bars, the cattleman and his cowboys hitched their horses to the posts supporting the new houses, tore each one of them down and then hauled away the posts in wagons.

Employing familiar claim club tactics, cattlemen would often ride in a group to convince a homesteader to give up his claim. They razed settlers’ homes, burned or otherwise destroyed their crops and tampered with or cut off their water supplies. Homesteaders retaliated by cutting fences, killing cattle and forming their own posses to protect themselves and their modest holdings. Such clashes spilled over into the 20th century, often flaring up in regions where the law was absent or weak or could be manipulated. Legal institutions were slow to develop, and the cattle associations on the Western range, just like the earlier claim clubs on the eastern Great Plains, tried to run the show. With legal recourse not readily available, the cattlemen and the homesteaders often took justice into their own hands.

The Homestead Act generated a population boom in the West, with 599,402 people claiming 82,041,644 acres of public land under the act between 1863 and 1900. With all those newcomers on the Great Plains, conflict with those already out there (mostly cattlemen) was inevitable. But during those 37 years Congress carved 10 states out of the Western territories, and with statehood came a more unified and codified legal structure. The cattle associations, just like the claim clubs, were held more accountable for their actions. After statehood people looked to their state legislators to bring an end to the terror—intimidation and physical violence were unacceptable and criminal. More and more people on the fast-fading frontier were putting down roots. To the West the Homestead Act brought millions of settlers who carved up the available public lands, established formal legal institutions in the new states and ended the need for club law.

 

Blake Bell is the historian for the Homestead National Monument of America [www.nps.gov/home] in Beatrice, Neb. For more read A History of the Public Land Policies, by Benjamin H. Hibbard, and The Lure of the Land: Social History of the Public Lands from the Articles of Confederation to the New Deal, by Everett Dick.

Originally published in the February 2012 issue of Wild West. To subscribe, click here.

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