The Homesteading Rights of Deserted Wives: a History

• Publication year: 2021

99 Nebraska L. Rev. 419. The Homesteading Rights of Deserted Wives: A History

The Homesteading Rights of Deserted Wives: A History

Hannah Haksgaard ^[*]

ABSTRACT

During the late nineteenth and early twentieth centuries, the federal government of the United States distributed 270 million acres of land to homesteaders. The federal land-grant legislation allowed single women, but not married women, to partake in homesteading. Existing in a "legal netherworld" between single and married, deserted wives did not have clear rights under the federal legislation, much like deserted wives did not have clear rights in American marital law. During the homesteading period, many deserted wives litigated claims in front of the Department of the Interior, arguing they had the right to homestead. This is the first article to collect and analyze the administrative decisions regarding the homesteading rights of deserted wives, offering a unique view of American marriage. After documenting the history of homesteading rights of deserted wives, this Article explores how these unique administrative decisions adopted or rejected the prevailing marital norms in America and how understanding these administrative decisions can aid in our understanding of marriage in American history.

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TABLE OF CONTENTS

I. Introduction .......................................... 420

II. The Legal Ability of Deserted Wives to Homestead ..... 425

III. Limitations and Methodology .......................... 429

IV. A Brief History of the Homesteading Rights of Deserted Wives ................................................. 438

V. Highly Litigated Issues ............................... 443
A. Determining Residency when Husband and Wife Lived Apart ....................................... 443
B. Women Establishing Residency in Their Own Names ............................................ 448
C. Time Restraints on Alleging Desertion ............. 454

VI. Trends and Themes in the Homesteading Rights of Deserted Wives ....................................... 458
A. Interaction with Other Marital Rules .............. 458
B. The Role of Fault ................................. 461
C. Privatizing Dependency ........................... 467
D. Protecting Marital Privacy ......................... 471

VII. Conclusion ............................................ 475

I. INTRODUCTION

Women played a critical role in homesteading the American West. The women profiled in this Article settled homesteads alongside their husbands or moved onto their husbands' homesteads after marriage. Once a husband and wife were residing on the homestead, the husband might leave, sometimes permanently and sometimes for a number of years. Husbands left for various reasons: some left to pursue other economic activities; ^[1] others were imprisoned ^[2] or fled for fear of imprisonment; ^[3] and one dramatically left the state, leaving no sign of his destination, after being "charged with the crime of larceny, [and] shot by the sheriff." ^[4] In each of the cases profiled, the deserted wife ^[5]

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was left on her husband's homestead, a piece of government-owned land to which the wife had no direct legal claim. Thus, a vexing problem arose for the Land Department: Should the wife deserted by her husband-but still residing on his homestead-be able to make a claim to that homestead? ^[6] Although the federal laws were first interpreted to bar homestead claims by deserted wives, a special exception developed that allowed a deserted wife to claim rights to the marital homestead and ultimately come to own the homestead in fee simple in her own name.

The deserting husbands and deserted wives profiled in this Article are, in many ways, emblematic of American mobility during the years of westward expansion. Husbands, wives, and children moved west across an expanding America. ^[7] But families also dissolved with a higher frequency once on the American Frontier. ^[8] Some desertions were purposeful-men might move to escape an unhappy marriage. ^[9] Some desertions were not purposeful-men might move intending to return but simply never did. ^[10] In all, the "restlessness of American life" and the movement of individuals and families west as new home-steading areas were opened contributed to marital desertions during the homesteading period. ^[11]

Yet, even though marital desertions were more common in the homesteading West, I argue those desertions were not as troubling in the homesteading context. A deserted wife could actually have better

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support (because she could become a landowner) than if her husband had not deserted her (and only her husband became the landowner). This observation is particularly important because looking at the legal mechanism of coverture that still governed marital relationships one would predict that a deserted wife would have no legal claim to the property. However, the patriarchal logic of coverture reasoned that women needed support, and in the case of a deserted wife it was clear a husband was failing to provide that support. Thus, following the support rationale for coverture, the government-through the homesteading laws had the rare opportunity to provide women property so they could support themselves. Coverture and support can only partly explain the outcomes of the cases I analyze. I also argue that unwritten assumptions about the roles of husbands and wives governed the homesteading rights of deserted wives, even when the federal statutes did not clearly-or actually-support those outcomes.

In this Article I focus only on deserted wives: women who were legally married but whose husbands had abandoned them. This Article primarily describes the legal rights of deserted wives under the homesteading regime-a topic that has not been discussed in legal scholarship and has barely been discussed in history scholarship, including the study of memoirs and letters by literary historians. ^[12] Importantly, this Article also informs understandings of the meaning of marriage and what it meant to be a wife or husband during the settlement of America. In doing so, it contributes to a rich area of scholarship about marriage in early America. Much like the work of legal historian Hendrik Hartog, this Article turns to marital separations to make sense of marriage. ^[13] In particular, this Article makes two new

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contributions. This Article is the first to collect and analyze the administrative decisions on the legal status of deserted wives attempting to exercise the right to homestead. The existing sources generally fail to acknowledge the important role that the law played in the way that homesteaders-both men and women-conducted themselves. ^[14]

In addition, this Article builds on the important work of legal historians about marital separation in the late nineteenth and early twentieth centuries. Legal historians, most notably Hendrik Hartog, have recognized the importance of the law and social roles of separated spouses in understanding historical family law. ^[15] No one, however, has ever studied separated spouses in the context of the homesteading of America. ^[16] Studying this particular type of marital separation is important because the law of marriage needed to work differently in the settlement of the American West. Specifically, the law of marriage needed to prop up a system of land settlement, which, as I demonstrate, meant that sometimes women were given more property and land rights than otherwise expected. Through collecting and analyzing these administrative cases for the first time, this Article also builds on and provides additional support for work by other legal historians. For example, my analysis complements Laurel Thatcher Ulrich's discussion of Colonial women as "deputy husbands," ^[17] Ariela Dubler's study of unmarried women and their relationship to the State, ^[18] and Reva Siegel's studies of women's earnings. ^[19]

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This Article lays out the history and analysis of the homesteading rights of deserted wives in five Parts. Part II examines the structure of the various homesteading laws and addresses women's legal rights to homestead. Congress drafted the homestead laws in an attempt to settle the American West with American citizens and American families. ^[20] But not every adult American citizen was able to homestead- the homesteading laws only allowed women to homestead in limited circumstances. Accordingly, Part II also examines the status of deserted wives in American law during the homesteading period. Understanding the role and status of deserted wives in the broader American context helps to set apart the status of deserted wives under the homesteading laws. Part III discusses this Article's methodology and also notes the limited nature of this topic. Part IV provides a general overview of the historical changes in the homesteading rights of deserted wives. Notably, Part IV covers federal law-congressional actions and key decisions from the Secretary of the Department of the Interior. Although states were, and still are, the main...