What Is the Matter With Our Land Laws?

SOMETHING has gone wrong with our public domain, — this we discover as it approaches the vanishing point, — and now the probe has been sent deep, that we may, so to speak, succeed in getting the barn door locked before the last and least attractive horse is stolen. That fraud has been exposed wildly excites no one, — the probe seems to find that in our system at every thrust; but one thing about this land-graft exposure that gives a distinct shock is the personnel of those caught in the legal dragnet. Governors, congressmen, high federal officials, professional men, — a minister, too, and a missionary at that, — are in the toils. This psychological feature should make us think, and ask questions.

Is the West’s moral sense so dull, as some ask us to believe, that it has tolerated for years men in high places whom the law now holds up as persistent criminals ? Or is there something wrong with our land laws and the administration of them, so that now, when primitive Virtue peers into the recesses, she discovers with horror an anomalous situation?

There is little of remedial value to be gained by discussing the moral sense of the men involved by the disclosures of land frauds. One thing is certain: the public domain — and, therefore, the public — will benefit immensely by the example of their punishment, whether they entirely deserve it or not. But a lifelong personal knowdedge of frontier land conditions impels the writer to register a few reflections upon the more pertinent question, What is the matter with our land laws ?

The homestead law was designed to secure the development of new country, and it met, most wisely, the early condition that men must be induced to brave the hardships of the frontier, by providing for a merely nominal fixed charge upon every homesteader who would settle upon one hundred and sixty acres of land, cultivate it, and make it his home for five years. This provision of a relatively small fixed charge for the homestead, irrespective of differences in land values, rewarded the hardy pioneer of the early days for pushing out beyond his neighbors, by giving him better land at the same cost in money as the more timid paid for their poorer homesteads nearer civilization; but he paid the difference, observe, in the greater hardships of developing new country, and in that development the public received full value for its land. It was not the original intent of the homestead law to give in land value more than it exacted from the homesteader in industrial value; the fairness of the exchange was self-regulating. A citizen’s “ right ” to take up government land had no more value, in itself, than had his right to go into a store and make a bargain for goods. An appreciation of these early conditions will enable us to comprehend better the subsequent perversion of our system of land distribution.

Such was the homestead law in its pristine purity, — a wise and beneficent law, so long as men needed inducement to settle upon public land; so long as men paid the government for their land by extending its industrial boundaries; so long as there were more homesteads than bona fide homesteaders; but no longer.

The first change in conditions came with the advent of railroads through the great unsettled portions of the Middle West. Railroads gave the first-coming homesteaders the peculiar advantage of good land, with few of the usual responsibilities and difficulties of the pioneer; the railroads were then, in fact, the real pioneers, — and the government rewarded them for their share of the burden by gifts of every alternate section of land adjacent to their lines, while it continued to give these first-coming settlers full homestead privileges upon the remaining alternate sections, in return for assuming only a portion of the burdens of developing new country. The earlier pioneers had extended civilization single-handed, and they knew of civilization’s debt to them; these later settlers secured like benefits for merely assisting in the business of empire-building, — and they knew that they were getting something from the government at less than its value. Right here the frontiersman’s proud sense of adequate return to his government began to fade, and right here the notion that a citizen’s “ right ” to take up government land has, in itself, a money value, began to grow. Here began the traffic in “ rights ” — the greatest debauching influence in the distribution of public land.

It is a peculiar fact that the government, instead of seeking to check this “ gift ” feature in its supposedly business deal with the settler, by exacting more from him in the way of industrial value for the benefit of the public whose land it was distributing, actually lessened in some respects its demands upon homesteaders. Several provisions of the law served to expedite the business of turning one’s “ right ” into cash. One method of getting quick returns was to file on a piece of land at the local land office, then relinquish the right to a later comer, for a consideration, to make a new entry on that tract. These relinquishments were recognized and accepted for record, and the new filings entered, without question, at all land offices, although the very act of voluntary relinquishment of one’s homestead right would suggest to the feeblest intellect a consideration paid by the new entryman. Again, the preeëption law granted to a citizen full title to one hundred and sixty acres after six months’ residence upon it, with proof of nominal improvements and the payment of one dollar and a quarter per acre. Further, the homestead law provided that a homesteader might, at any time after six months, abandon his determination to live upon his homestead for five years, in order to acquire title without cost, “ commute ” it to a preëmption, and, by paying the preëmption price, prove up his title at once. Thus every settler could get full title to three hundred and twenty acres of land in six months, sell out, and go back home.

Under these provisions of law the government surrendered its most valuable compensation for public land, — bona fide, producing settlers. It still continued its principle of land distribution without regard to return of value in money, but it failed to exact return in that most vital of values, — permanent settlement and development of new country. Is it to be wondered at that this condition increased enormously the value of “ rights; ” fixed in the public mind the idea that the government was intent on giving away value in public land without regard to returns; and developed on the frontier a motley population of every class except farmers, bent on exercising their “ right ” to government land?

Who makes our land laws? Unfortunately, owing to our system of legislative barter, under which the various special interests so often assist one another to laws framed to meet their several special desires, the land interests of the West have always dictated our land laws and controlled the policy of the Land Office. That changing conditions, which made of the public domain an attractive property of enormous value, should have been met by fundamental changes in the methods of land distribution looking to its protection and proper development, is simply a bald truism. Just as certainly, too, proper restraining legislation could not have been expected of those who were to profit by lack of restraint. Consequently, the principle of fixed price per acre without regard to value, first come first served, has been kept alive by the land interests down to the present day, because it gives them the value in the land above that price; while nearly every amendment to the land laws is in the nature of a surrender to the land boomers. The workings of our absurd system of courteously allowing each prisoner to lock himself in and keep the key, are most interestingly exemplified in the history of the public domain.

Take, for instance, the boom of the early eighties in Kansas, Nebraska, and Dakota. Millions of acres of government land, accessible by rail, were open to settlement. Six months’ sojourn on the prairie called for no equipment of farming experience or tools; a shanty, a well, and some convenient neighbor to plough a few acres, —these for “ improvements.” What more was this than an invitation to all sorts and conditions of men — and women — to make a few hundred dollars “ off the government ” in a summer’s outing ?

Nothing so grows upon a man as the notion that he has something coming to him from the government. Drug clerks, brakemen, schoolma’ams, ministers temporarily uncalled, adventurers of all sorts, — all rushed for government land, not for the purpose of developing it, but to get the value there was in it above the government’s fixed charge, — to cash in their “ right.” A horde of land speculators followed in their footsteps, — these " settlers ” would soon have land to sell. Still more in evidence were the agents of loan companies seeking farm mortgages for their Eastern investors. As a matter of fact these loan companies often outbid the speculators; they habitually loaned six hundred, eight hundred, or one thousand dollars on these farms that were so easily acquired from the government at the fixed price of two hundred dollars, - loaned it to these pseudo-farmers who had never milked a cow and never expected to.

The writer has in mind an investigation (one of many) which he made in 1889 while land inspector for a loan company. Forty-one of these newly acquired “ homes ” in central Nebraska were examined, all previously mortgaged to the company; of these, three were occupied by the original owners, three by migratory squatters, and thirty-five were wholly abandoned. These thirty-eight missing mortgagors had not tried to farm the land, and failed; they had simply converted their “ right ” into the loan company’s cash, and vanished. What wonder that there came a mournful day of reckoning in the farm-mortgage business?

Thus the notion that public land is public spoil, encouraged by the land laws, hardened into a fixed conviction. Little sense remained of obligation to the government. The principle of fixed charge, so essential to the earlier movements westward, now served only to excite cupidity. Men paid one dollar and a quarter per acre for land; its value above that, they regarded as theirs by right of citizenship. In increasing measure the distribution of public land became a traffic in “ rights.” Of all the motley crowd that helped themselves to public land during the boom of the eighties, not one in three had the slightest intention to remain upon it; not one in five remained more than long enough to prove up and sell out, or “ mortgage out; ” and not one in ten has left a permanent mark upon the landscape of Kansas, Nebraska, or Dakota. This is not a snap judgment. An accurate personal knowledge, gained in the field, and extending over this whole period, is warrant for the assertion that these conditions, and not crop failures, were mainly responsible for the wholesale abandonment of western farms, and for the consequent seven-year industrial depression in the West. The best proof of this is the success now attending the efforts of the real farmers who are working these same farms.

Then came the repeal of the preëmption law in 1891; but as a final lettingdown of the bars, the homestead law itself was amended in the same act so as to permit final proof at the end of fourteen months, instead of five years, without additional price or penalty, and requiring actual occupancy during only eight months of the fourteen.

It may seem that the government could not have gone further in encouraging the public’s appetite for land spoils; but witness the openings of Indian reservation lands. As a rule, these tracts were surrounded by well settled country; natural inequalities of value were enormously increased by the proximity of towns and railroads; not one condition remained to give the fixed-price method an excuse for exercise; yet these lands, worth $5, $10, even $25 per acre, were all thrown open to public entry at fixed prices of $1.50 to $4.00 per acre, — the price paid the Indians. Poor Lo, and not the government, furnishes the spoils at every opening of Indian land. It was at this time that the government openly acknowledged the free gift of value, openly abandoned all notion of adequate return from the settler, by taking a hand in the method of dividing the spoils. It prescribed that the boomers line up on the edge of the coveted land, and at the crack of a gun rush pell-mel] for the coveted prizes, — and the devil take the hindmost. As there were anywhere from ten to five hundred men for every prize, there were many necessarily “ hindmost,” — disappointed seekers of something for nothing.

One step further the government went in its destruction of all honorable notions of land distribution. Conditions surrounding these land openings became too acute for even the “ rush-at-the-crack-ofa-gun ” method. Men murdered each other in the frantic scrambles; dozens claimed the same tract, and interminable lawsuits resulted. Then the Land Office, still held by law to the antiquated fixed - price principle, still denied the right to exact the five years’ residence which would have kept out most of the rabble, devised a plan which came as near the line of promoting public immorality as ever did an act of this government. It prescribed a lottery-drawing for the lands; every entryman’s name was to be put into a plain envelope, the envelopes placed in a huge box, and the box whirled around until the envelopes were well mixed. Then the envelopes were to be drawn out one by one; each entryman to have his choice of land in the order in which his envelope came out of the box.

It was a beautiful proposition for those who are perennially looking for something for nothing. Instance the opening of the Rosebud land in 1904. Relieved of apprehension as to life and limb, guaranteed “ fairness and equality of opportunity ” (so read the lottery prospectus) in a pure game of chance where the turn of an envelope meant hundreds, or thousands,— or nothing,—the gambling instinct was aroused in men as never before. They came in droves and trainloads; they descended upon the local land offices until 106,296 of them had their envelopes in the big box to draw for some 2000 farms — more than 500 applicants for every farm! The lottery system is now a feature in all land openings.

Encouraged and abetted by the land laws, the gambling mania for public land has passed all bounds. Every land opening is a wild orgy; the fierce rush at the crack of a gun was nothing to the now fiercer hope at the turn of an envelope. A frenzied, deluded mob wastes its energy and money at every lottery-drawing in wild reaches for the government’s bait, always followed about by a horde of land speculators, ready to pick off the winners,— a set of men in make-up and motive as utterly unlike the men who made the original homestead law a blessing to their country, as black is unlike white.

Now, suddenly, primitive Virtue turns the corner. What does she find?

Most of the public domain has been frittered away upon entrymen who took the land for the money there was in it, and left its development to those who came after and paid for it. Large numbers of entrymen, impatient of the obviously perfunctory and ineffective requirements of the land laws, have bargained away their “ rights ” before, and not after, exercising them, — which is contrary to law. Vast areas of timber land — worthless for agriculture, and subject to purchase only under the timber-land acts — have been taken under the homestead laws as agricultural land, — an unmitigated fraud. Lumbermen, compelled to buy standing timber in little parcels of one hundred and sixty acres each, from citizens who have the only right to acquire it from the government, have been found guilty of wholesale traffic in these citizens’ “rights,” and of abetting fraudulent entries of timber land. Gross fraud in high places has been unearthed ad nauseam.

Now the transgressors are to be punished. But why should we be so amazed that a quarter-century of education downward in every ideal pertaining to public-land distribution has developed a streak of yellow across the moral sense of those immediately concerned ? And is it so surprising that land officials, held by absurd laws to the business of dissipating the public domain as legitimate private spoils, should have become callous to illegal graft which did little more than accelerate the dissipation ? This is not intended as an apology for fraud, but as an arraignment of the land laws for offering such wholesale, continuous and alluring invitation to fraud. Not for twenty years has our policy of land distribution been entitled to respect; hence, its provisions have not been respected. It is well enough to indict those who have over-reached laws, even obviously subversive laws; but in the public mind the lawmakers should be indicted, — not only the Western congressmen who promoted the mischief, but those of the now horrified East who swapped votes with them, and without whose aid in Congress the public domain could not legally have been so plundered.

What should be done in order that the distribution of the remaining public land may proceed on a saner basis ?

Wipe out absolutely the inherent value of a citizen’s “ right ” to public land by exacting a full equivalent for the land, — not in money, but mainly in restrictive obligations which shall insure to the public settled, producing communities in exchange for its lands. Require, for instance, in the case of agricultural land, a full five-year occupancy; sufficient equipment to make reasonably sure the entryman’s ability to fulfill his contract; a degree of cultivation varying with conditions of climate and soil, but well up to the standard of similar lands improved; improvements at the end of the five-year term commensurate with the value of the land, but with a provision for misfortune and accident. In short, make the main charge for the land in terms which are no burden whatever to the bona fide farmer, because in direct line with his intentions and best interests, but which are wholly unattractive to the passing throng that merely seeks something for nothing.

Now comes the question of money consideration, — for differences in land values must finally be leveled up by a money charge. The fixed charge per acre levels nothing; it makes the better tracts worth fiercely striving for even under the most ideal restrictions, and may easily be too great a price for the poorer lands. It is the land gambler’s best friend, and its absurd survival is due solely to his efforts. The fixed charge should be abolished. In localities where settlement will in the nature of things proceed by slow degrees, prices might be fixed by appraisement; but in all cases of special openings of lands to public entry, — and these will hereafter furnish the bulk of good public land, 舒 nothing but competitive sale, subject always to full restrictions, will secure a sane, equitable distribution of the land to actual farmers.

It may be asserted that the restrictions, coupled with competitive sale, will not offer sufficient inducement to effect rapid settlement of new districts; but which will prove more attractive to worthy farmers, — a free-for-all lottery drawing for land on which the restrictions are so notoriously nominal that their chance to draw anything is cut down by all sorts and conditions of men to one in five hundred, or a competitive sale of land under restrictions which effectually bar everybody but themselves? The best answer to this is a look at the frenzied crowd at any one of these lottery-drawings. It goes without saying that a sale restricted to farmers would develop much lower prices for the land than would a sale open to the speculative element, and would therefore be more attractive to farmers.

Of even more importance than the disposal of agricultural land is the conserving of our remaining timber. However much the admirable system of forest reserves may be extended, there will necessarily be vast areas in the aggregate which must be left subject to disposal under the timber laws. This portion of the public timber, unprotected by reserves, should have earnest consideration. The Timber Land Act describes timber land as “ valuable chiefly for timber, but unfit for cultivation;” it also endows every citizen of the United States with the right to take 160 acres of timber land at a fixed minimum price per acre, and requires the applicant to swear “ that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit; ” this, against the certainty that the average citizen has no use for 160 acres of timber, and is making his oath with one speculative eye on the lumbermen, — if, indeed, he has not been forehanded enough to get in advance their offer for the timber, to consider in connection with the price he will have to pay.

Just as the farming land should go to farmers without the intervention of speculators, timber should be disposed of to its logical buyers — the lumbermen. Cut out the citizen middleman, and deal direct with the lumber producer. Here, again, exact the first consideration in terms which are for the public welfare, — terms which shall make such land— “ unfit for cultivation” — a perpetual source of timber. Require that a certain percentage of the smaller trees shall be left standing to protect the young growth, hold the soil, and retain the moisture; that the timber shall be cut with the least possible damage to the second growth. Then, sell the first cutting to the lumberman, but hold the title forever in the government, and terminate the lumberman’s interest upon the removal of his timber.

Under this plan every remaining tract of public timber would at once become a perpetual forest reserve, subject to government control. If we concede that the conservation of our timber cannot be safely left to private enterprise, it follows without argument that not one acre of land “ valuable chiefly for timber, but unfit for cultivation ” should pass to private ownership, although millions of acres have so passed, and have been despoiled and left wholly worthless for any purpose. If it were possible to overcome the inborn notion that, somehow, title to all public land must pass through the bare hands of our sovereign citizens, there would be found plenty of responsible lumbermen glad to escape the grafting middlemen, glad to find the way open for honorable dealing with the government, and glad to assist in perpetuating the lumber supply. Our forest-reserve system is the most vitally important public enterprise of the day, but if we are really going to save our timber we must save the vastly greater area which lies in scattered tracts outside any prospective reserve.

And the last act in this drama of absurdities is now on. We are cheerfully expending millions to reclaim portions of the western deserts; we brag of the immense irrigating systems now being constructed in the arid regions, — and no wonder, for they are big and grand; but we are so lost in the bigness of the work that mighty few of us think to inquire, — Who are going to get this reclaimed land, and how are they going to get it?

The Reclamation Act provides that the reclaimed land, divided into farming “units ” of about forty acres each, shall be entered under the general homestead laws, except that full five years of residence shall be required; and that, in each project, the price to be paid — in not more than ten annual installments — “ shall be determined with a view of returning to the reclamation fund the estimated cost of construction of the project, and shall be apportioned equitably.” This is construed by the Land Office as meaning that the cost of a given project shall be assessed equally against the irrigable acreage within it. Nothing appears upon the surface of this plan to excite the suspicion of the casual observer; but, as a matter of fact, it carries the fundamental defect which has made a farce of our system of land distribution, — the relation of actual value of the land to the price to be charged for it is entirely ignored.

Examine the working of it. The government does not intend to undertake any project in which the cost may exceed the value of the reclaimed land; it is assumed that in most cases the land will be worth vastly more than its cost. In every such instance the government will be up against the same old disgraceful business, — the giving away of big values to a ravenous horde. Again, it is not impossible that, through miscalculation, some projects will cost more than the reclaimed land will be worth; on such the government must inevitably lose, and, as it cannot recoup from its profitable ventures, the loss will be net.

Of still more significance are the marked inequalities of value within any given project. Under the flat-price scheme, the best farms will be worth double or treble the selling price, while the poorer tracts, burdened with their average share of the total cost, will not be worth taking. Here, again, the government stands to lose, with no chance to recoup. In every particular the scheme presents a case of “ heads, the land man wins; tails, Uncle Sam loses.”

But speculation as to what may happen is not necessary. The thing has happened. In the opening of the Huntley (Montana) project during the summer of 1907, the Land Office has given us a striking example of what it proposes to do with the irrigated lands, — an example worked out clear to the answer.

This Huntley project contains 633 farm units. The total cost per acre, thirty-four dollars, was assessed equally against the irrigable acreage. What though some tracts were worth one hundred dollars per acre and others worth ten? A mere trifle to the crustaceans of the Land Office; this land had cost thirtyfour dollars per acre, and thirty-four dollars each and every acre of it must bring. They did realize, however, that the values to be given away would invite murder under any ordinary system of homestead entry. Nothing better, surely, for this occasion than the envelope-drawing system; so the old lottery box was refurbished, and the news spread abroad that the first-fruits of Uncle Sam’s great irrigation work were to be raffled away.

Here is the result: —

5400 sealed applications went into the box for a chance to draw the prizes among the 633 farms.

Less than 300 of the lucky drawers availed themselves of their right to select farms.

About 400 farms, not attractive at the fixed price, are still without buyers.

Some 200 men “ milked ” the Huntley project of its principal value; a few others drew just about their money’s worth; 5100 meandered homeward with blanks to show for their money; and the government is left “ holding the sack ” to the extent of more than half the cost of the entire project.

Thus ends the Huntley project, until such time as the government concludes to pocket its loss and sell the four hundred farms for what they will bring.

But whether the government loses or makes in these irrigation projects is not so much to the point. The point is that, after the expenditure of millions to provide water for these lands, every tract should be occupied, — and occupied by men competent to make a success of the complicated system which the government has placed at their disposal. The absurd method of distribution defeats both of these objects. Does any one suppose for a moment that 5400 farmers — men capable of the intensive methods of farming required under an irrigating system— gathered at Billings, Montana, from all parts of the country, to draw farms from a lottery, with the chances twenty to one against them ? Certainly not.

The class of men that a sane, competitive sale would have put upon every one of those farms is just the class that has no time for the short end of a long gamble; and the class of men attracted to Billings by this drawing is just the class that has no use for a competitive sale.

It seems the height of folly to deliver these valuable lands without one requirement as to equipment, experience, or capacity which shall reasonably insure the success of the entrymen and the payment of the heavy installments and charges as they come due. Without the shadow of a doubt our irrigated lands will pass into quick failure and partial abandonment under the present system, just as did the middle West under similar conditions. The failure will be attributed to drouth, water, high Heaven, — but never to the pernicious system of distribution that invites the riff-raff of the country to people its new land. Then, after enormous economic waste, the lands will be redeemed by the men who know how, just as the middle West has already been redeemed by the men who know how. This repetition of a sorry history seems so useless when a competitive sale of the land under full homestead restrictions would make a natural selection of men most fit, put a farmer on every tract, and practically assure the success of the system as well as the repayment of the cost of construction.

But the western boomer wants the public lands dealt out in the good old way. It starts off the new section with a boom and a hurrah and a surplus of people. Some of this surplus buys land in the surrounding country and settles down; and the disappointed ones who go back home leave many good dollars in the new country. The 106,296 participants in the Rosebud drawing spent in South Dakota easily twice the value of the 2000 farms in mere expense money; Billings, Montana, will smile for some time to come over the coin left by the disappointed Huntley pilgrims; and every lottery-drawing attracts ten times as many men and dollars as the boomers could get together in any other way. As an advertisement, the lottery-drawing is a wonder; as a bunco scheme it cannot be beaten, — for the army of deluded ne’erdo-wells who hopefully follow the trail of these openings have only their Uncle Sam to blame for the blanks they draw.

Will the booming “ builders of the West” tamely give up a system that has done and will still do so much for them ? In Western parlance, — not on your life! The use of the public land as bait is an old and solidly fixed institution in the West. The present administration in its hunt for guilty men is merely tickling the surface of this matter. No amount of prosecution is going to dislodge the deepseated notion that the public lands belong to the West, just as certain features of the protective tariff are the special perquisites of the East —has not each section assisted the other in maintaining its preserves ? — and it is inconceivable that at this late day the fine balance will be disturbed in order that a few grains of business sense may be infused into our methods of land distribution.

There has never been a sustained public interest in the public domain. Its relation to Congress is that of a special interest, — and now, with many other special interests, it is receiving at the hands of a vigorous administration external treatment for organic troubles. The difficulty lies in the laws. We suffer in this as in other respects from hang-over laws which, having outlived their usefulness, are kept alive by special interests to serve their special desires. If it were possible to regard our public land as a present problem and make laws for its present needs without regard to the laws now on the statute books, nothing would remain of our antiquated system of land distribution.

There is only one way to rid the public domain of the special interests that have usurped it; let public sentiment so overwhelm Congress that it will recognize the public domain as belonging to the whole nation, take it off the legislative barter list, and give us laws for its administration founded on sane business principles.