Free Florida land: homesteading for good title.

• Author: Boggs, Glenn

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This is the third article in a trilogy about the origins of real estate titles in Florida to be published by The Florida Bar Journal. The first article discussed Spanish land grants; the second, British land grants. (1) This article will recount the little-known story of how some early Floridians got title to their land for free by staking a claim and surviving on it. Their efforts to eke out a living from the land were far from easy. With modern air conditioning, mosquito control, electricity, and supermarkets, we can scarcely imagine their hardships in the Florida wilderness.

An excellent portrait of the rigors of early pioneer life in Florida has been traced in the highly acclaimed historical novel, A Land Remembered, by Patrick Smith. (2) Many readers will be familiar with it, and others may wish to peruse this interesting account. As we will see, not all American "homesteaders" were out West on the Great Plains. We have our own variety of homesteaders here in Florida, both white and black, with their own tale to unravel that explains how their title to land originated. But before examining the homesteaders' story, it is important to understand several things about their adversaries in the fight over ownership of Florida real estate.

Background

As lawyers are aware, title to real estate is a somewhat curious thing. You can't touch it, feel it, taste it, or even actually see it, although you can read about it. Florida lawyers are so used to the concept of title and private ownership of land that they tend to take it for granted, akin to a fundamental law of nature, like gravity. They can give opinions on title after reviewing abstracts, and they depend on courts to settle any disagreements, ultimately ruling on who has "good title" and who doesn't.

It was not always thus in Florida. For thousands of years before Europeans came to this peninsula, a succession of native peoples lived here with very different ideas about owning land. They had names like Calusas, Tequestas, Temucuans, and Apalachees. One estimate suggests that there were "as many as 350,000" living here before the Spanish arrived in the 16th century. (3)

Notice that the name Seminole is missing from the foregoing list. Although the Seminoles, and three separate wars between them and the United States, figure prominently in the passage of Florida homesteading laws, the Seminoles did not exist as an independent tribe until the 18th century, over a century after the arrival of the Spanish and the decimation of the indigenous people to disease, war, and social changes. (4) The Seminoles arose as sort of an amalgamation of a variety of Southeastern Indian tribes, primarily "Lower Creek," as southward immigration occurred from what is now Alabama and Georgia into the largely deserted and unpopulated areas of Florida. As the 18th and early 19th centuries unfolded, the population of Seminoles on the ground in Florida increased, even though Spain nominally governed on paper (except for the brief British period, 1763-1783). (5) A good case can be made for the proposition that as actual Seminole presence and power waxed during these decades, Spanish influence and physical authority waned. History clearly teaches that political power abhors a vacuum, and as Spain's international power declined, the stage was set for a battle over Florida between the Seminoles and the newly emerging United States.

The first of the three clashes between these two occurred while Spain still claimed sovereignty over Florida in 1817-1818. In late 1817, the Army attempted, unsuccessfully, to seize a Seminole chief named Neamathla at his south Georgia village called Fowltown, destroying the village in the process. A week later the Seminoles saw a chance to retaliate. A boat carrying nearly 50 people--soldiers and civilian dependents--was on its way up the Apalachicola River toward Ft. Scott when the Seminoles attacked it, killing nearly all occupants of the boat except one woman who was taken prisoner and six of the soldiers who escaped. (6)

Subsequently, the United States sent an army headed by General Andrew Jackson to the immediate area of the violence. The scope of Jackson's actual authority might best be described as "unclear," and the propriety of his actions has been debated at great length in the aftermath of the fighting. In any event, Jackson invaded Spanish Florida, captured Pensacola and St. Marks and, before withdrawing back to American territory, basically pushed the Seminoles southward away from the Georgia and Alabama borders. (7)

One can easily surmise that Gen. Jackson's actions in Florida caused considerable consternation and unease in Madrid. Since, by this time, Spain lacked the necessary military power to do much about these events, a diplomatic resolution developed giving the United States the foundation to claim that it owned legal title to Florida (or the Floridas, East and West, as they were known).

This diplomatic resolution took the form of a treaty between the United States and Spain, primarily negotiated between U.S. Secretary of State John Adams (who later became president) and Spanish diplomat Don Luis de Onis. The treaty, referred to as the Adams-Onis Treaty, was negotiated in 1819 and finally ratified and put into effect in 1821, when the "Floridas" were officially transferred to the United States.8 The terms of the treaty were described in some detail in the first article of this series, "The Case of Florida's Missing Real Estate Records," which explained that the U.S. did not actually pay Spain $5 million for Florida, but instead only agreed to pay claims owned by Spain to bona fide claimants up to a total cap of $5 million. (9) In fact, as it turned out, the United States ultimately paid over $4 million in claims to Americans who could prove that Spain owed them legitimate debts. (10) This real estate transaction had very significant benefits for Americans and could certainly be argued to be one of the best deals ever negotiated by the United States. For the payment of a relatively small sum, paid not to a foreign power but instead to Americans, the emerging nation secured its southeastern border and added millions of acres to the public domain. In one of its early cases, U. S. v. Percheman, 32 U.S. 51 (1833), the U.S. Supreme Court analyzed the transaction as follows:

Florida was a colony of Spain, the acquisition of which by the United States was extremely desirable. It was ceded by a treaty concluded between the two powers at Washington, on the 22d day of February 1819.... "His catholic majesty cedes to the United States in full property and sovereignty, all the territories which belong to him situated to the eastward of the Mississippi, by the name of East and West Florida." (11)

The Court, in the same opinion, also explained some of the real estate logic behind the treaty in this manner:

The United States had acquired a territory containing near thirty millions of acres, of which about three millions had probably been granted to individuals. The demands of the treasury, and the settlement of the territory, required that the vacant lands should be brought into the market; for which purpose the operations of the land office were to be extended into Florida. The necessity of distinguishing the vacant from the appropriated lands was obvious; and this could be effected only by adopting means to search out and ascertain preexisting titles. (12)

Consider the situation from the point of view of the chief executive at the time, President James Monroe, his administration, and the Congress. The young nation now had approximately 27 million acres of land with which to do something. One might consider this something of a real estate developer's or nation builder's dream...