CHAPTER 1 GENESIS AND EVOLUTION OF LAND AND MINERAL OWNERSHIP IN THE WESTERN UNITED STATES
| Jurisdiction | United States |
(Apr 1982)
GENESIS AND EVOLUTION OF LAND AND MINERAL OWNERSHIP IN THE WESTERN UNITED STATES
and Janet N. Harris
TABLE OF CONTENTS
Page
I. ACQUISITION OF THE PUBLIC DOMAIN
A. From Foreign Nations
1. Land Grants by Prior Governments
B. The Indian Occupants
II. DISPOSITION OF THE PUBLIC DOMAIN
A. Land Grants to States
1. The Enabling Acts and General Grants to States
2. Indemnity or Lieu Selections
3. Beds of Navigable Streams and Lakes
a. State Versus Indian Ownership.
B. Land Grants to Railroads
1. Right of Way, Place and Indemnity Lands
C. Land Grants to Settlors
1. Agricultural and Desert Land Entries
2. Withdrawal and Reservation of Federal Minerals
a. Coal Land Withdrawals
b. Oil Land Withdrawals
c. Coal Lands Act of 1909 and 1910
d. Agricultural Entry Act of 1914
[Page 1-ii]
e. Stock-Raising Homestead Act of 1916
f. Taylor Grazing Act of 1934
D. Grants to Miners
1. First Coal Act of 1864
2. Mining Act of 1866
3. Placer Act of 1870
4. 1873 Coal Lands Act
5. Mining Law of 1872
6. Building Stone Act of 1892
7. Mineral Leasing Act of 1920
8. Reservation of Minerals in Mineral Patents
E. Indian Lands
1. Definitions
2. Title Documents as Sources of Indian Title
a. Allotted Land
b. Tribal Lands
c. Title Arising Out of Aboriginal or Ancestoral Possession
3. Minerals Underlying Indian Lands
4. Restrictions on Alienation
F. Distinction Between Public Domain, Reserved and Acquired Lands
Footnotes 1-32
[Page 1-iii]
Map—Acquisition of the Territory of the United States
Map—Federal Land Grants for Railroads 1-39
Tables—Grants to Selective Western States on Admission to the Union
———————
[Page 1-1]
This paper commences with that period in our history during which the United States acquired title to the vast western lands lying principally to the West of the Mississippi River after the consolidation of the Eastern portion of the present continental United States. Attesting to the foresight — and to some extent, the Yankee ingenuity of our forebears — this was accomplished through an astute combination of purchase and conquest.
I. ACQUISITION OF THE PUBLIC DOMAIN
A. From Foreign Nations
The United States acquired title to western lands through a combination of purchase and conquest. The first land acquisition to include what is today viewed as western lands was the Louisiana Purchase of 1803, which brought into American ownership, at a price of three (3) cents an acre for 523 million acres, lands now comprising present day Nebraska, most of Kansas and South Dakota, large portions of North Dakota, Montana and Wyoming, and the northeastern portion of Colorado. In 1818, Great Britain agreed to extend the Canadian border along the 49th parallel from Minnesota to the Rocky Mountains and the United States thus gained undisputed title to the lower Red River Valley which included portions of northeastern North and South Dakota.
The Oregon Compromise of 1846 resolved the British-American dispute over the northwest boundary of the United States and added Washington, Oregon, Idaho, and lands in northwestern Montana and west central Wyoming to the rapidly growing nation. Under the Treaty of Guadalupe Hidalgo (1848) Mexico agreed to sell to the United States for $15 million all of what is now California, Nevada, Utah, Arizona north of the Gila River, New Mexico west of the Rio Grande River, and parts of Southwestern Colorado, totalling 334,479,360 acres.
In 1850, five years after annexation, Texas sold to the United States 78,842,880 acres of its western lands for $10 million, adding to the territories that became New Mexico, Oklahoma, Wyoming, Colorado and Kansas. In 1853 James Gadsden negotiated the purchase from Mexico for $10 million of a tract south of the Gila River in Arizona containing 18,961,920 acres.
[Page 1-2]
In what was referred to by the critics as Seward's Folly, the United States purchased Alaska from Russia in 1867 for $7 million to complete its contiguous land acquisitions. Alaska was the last purchase or conquest that brought public land to the Federal government. Later acquisitions made no addition to the public domain except for building sites, parks, and minor reservations.
1. Land Grants by Prior Governments
In New Mexico, Arizona and Colorado, there was left from the Mexican period of conquest a tangle of land claims that would be fought over before commissions and litigated in the courts for years. A conscientious effort by Congress to deal fairly with these private land claims was bred by the acute anglo sense of property and ownership. A determined effort was made to ascertain whether the conditions under which land grants had been made — settlement, cultivation and irrigation — had been met, and to ferret out fraudulent claims. The effort was not altogether successful as title documents had been lost or destroyed over the course of time and courts found themselves attempting to interpret Mexican and Spanish laws.
The long delay in adjudicating the claims ended in 1891 by a statute establishing a court of private land claims to pass upon all private land claims deriving from Mexican or Spanish grants in the Arizona and New Mexico territories and in Colorado.1 Under the law no claim in excess of the 11 leagues (a league was equal to a little more than 2.63 miles and the square league equal to 4,428 acres) allowed by the laws of Spain and Mexico could be confirmed. One section of the act provided that titles up to 160 acres should be confirmed to persons who had been in continuous adverse possession of the land for 20 years. Under this act, forged and antedated claims to 33,500,000 acres, out of a total of 35 million that had not been finally passed upon, were rejected.2
PRIVATE LAND CLAIMS CONFIRMED IN ARIZONA, NEW MEXICO, COLORADO
| State | Number of Claims Confirmed | Acreage Confirmed |
| Arizona | 95 | 295,212 |
| Colorado | 6 | 1,397,885 |
| New Mexico | 504 | 9,899,021 |
"Report of the Public Lands Commission," Senate Documents, 58th Cong., 3d sess., Vol. 4, No. 189 (Serial No. 4766), p. 140.
[Page 1-3]
The 1891 Act also provided that all gold, silver and quicksilver mines or minerals "shall remain the property of the United States, with the right of working the same." Under a 1926 statute these reserved mines and minerals may be leased for a period of 20 years to the grantee, or to those claiming through or under him, with a preferential right in the lessee to renew the same for successive periods of 10 years, upon such reasonable terms and conditions as may be prescribed by the Secretary of the Interior.3 Regulations have been issued by the Department of the Interior, implementing this legislation.4
B. The Indian Occupants
The western lands acquired from foreign nations between 1803 and 1867 were also subject to the claims of their inhabitants, the American Indians. The question was soon to arise: What kind of title to real estate did the United States receive from the European nations; what steps did the Federal government need to take in order to "clear" title so that the United States could dispose of or manage the Federal lands? In Johnson v. McIntosh5 , plaintiff's title derived from grants made by tribal chiefs in 1773 and 1775. The same lands were ceded by the tribes to the United States in 1795, and defendant later received a patent to the lands from the Federal government. The United States' grantee prevailed. The Indians retained only a right of occupancy, and no right to transfer title to the property to others. The court found that the United States stood in the shoes of the respective discovering European nations who had asserted ultimate dominion over the lands they discovered, with such dominion encompassing the power to transfer title to the lands. Based upon this underlying rationale, the power of the United States to control the disposition of Indian lands has always been recognized by the courts of the United States.
II. DISPOSITION OF THE PUBLIC DOMAIN
The starting point of the early public land disposal policy, developed in the mid-19th century to utilize the nation's vast land holdings to spur settlement and occupation of the West, was the concept of classification. Lands were classified as mineral lands or agricultural lands and accordingly segregated for disposition under the public land laws. Congress disposed of public land under the agricultural entry laws and for the most part, under state and railroad land grants only if they were classified as non-mineral in
[Page 1-4]
character. However, classification itself was not an exacting science. Government surveyors relied upon cursory surface inspections, observations and reports of mining activity in the area and sometimes only the report of the agricultural entryman who, to say the least, had no incentive to report the land's mineral potential. As a result of such haphazard approach to the classification process, involving at times abuses and occasional fraud, some mineral lands passed unintended into private ownership, although it might be said that such public lands disposal policy was a practical necessity in order to spur settlement of the West.
In time Congress began to develop the multiple use concept. Other than the Land Ordinance of May 20, 1785, providing for the disposal of what was regarded at the time as "western" lands and reserving to the United States one-third of all gold, silver, lead, and copper mines, the first trace of a multiple use concept occurred when Congress in 1909 began to reserve the minerals underlying lands subject to agricultural entry under the later homestead acts. As will be discussed in more detail later, these later homestead acts, providing for the disposition of lands with a reservation to the United States of certain specified minerals, recognized...
To continue reading
Request your trial