Litigation

THIS LAND. YOUR LAND. MY LAND.

By Dawn Schock

Dawn Schock has been a certified appellate specialist in California since 1999. She also serves as senior technical advisor to international rule of law development projects in the Balkans, Middle East, and North Africa, and the republics of the former Soviet Union.

Like me, some 46 million Americans —roughly 20% of the adult population — trace their roots to settlers under the Homestead Act. Like my family, the vast majority of homesteaders were White. (Keri Leigh Merritt, Masterless Men: Poor Whites, Slavery and Capitalism in the Deep South (2017) p. 38.) As an heir to homestead land, I cannot ignore the role race has played in my family’s generational upward mobility. My immigrant forbearers established their citizenship while they perfected their claims by living on and cultivating their 160-acre parcels. As they did so, Native Americans, who had inhabited the lands for millennia, continued to be dispossessed. And emancipated African Americans, who had labored over two-and-a-half centuries to bring land in the American South into productivity, remained destitute.

Our Whiteness is not a feature reckoned in my family’s stories about my German-Russian forbearers who left what is now Ukraine to homestead the Dakota Territory in the late 1880s. We celebrate instead the settlers’ courage, tenacity, and work ethic; all true and worthy of celebration. But failing to account for race in our family myths renders them as incomplete as those of the country that deeded us our land.

The Black Lives Matter movement, the recent Supreme Court decision in McGirt v. United States, and the times in general call for a re-examination of our shared history. The path toward greater equality is not yet clear and will require a broad societal discussion. But movement activists are clear on first steps for White allies, among whose ranks I hope to be counted: Look again at your own privilege.

THE HOMESTEAD ACT OF 1862

Called “the most comprehensive form of wealth redistribution that has ever taken place in America,” 246 million acres of the American West — nearly the size of California and Texas combined — were granted to 1.6 million homestead households between 1868 and 1934. (Merritt, supra, p. 38.) Only about 3500 of those were Black households. (Nat. Park Service, African American Homesteaders in the Great Plains < www.nps.gov/articles/african-american-homesteader-in-the-great-plains.htm > [as of Aug. 8, 2020].)

Versions of the Homestead Act were introduced in Congress annually beginning in 1845, but Southern slaveholder politicians blocked its passage, fearful that the population of western lands by non-slaveholding reformers would tip the balance of federal power against them. (Merritt, supra, pp. 42, 56.) Secession of the Confederate states in 1861 paved the way for the Act’s passage. Because it furthered his vision of a national goal “to give everyone an unfettered start and a fair chance in the race of life,” President Lincoln signed it in 1862. (Nat. Park Service, President Abraham Lincoln (July 4, 1861) < www.nps/gov/home/learn/historyculture/index.htm [as of Aug. 8, 2020] >.)

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But by that time, Native Americans had already been dislocated through a combination of force, fraud, purchase, and encroachment from the public lands now laid open to homesteading. They were largely confined to reservations except for a small number of tribes still in open resistance. (Richard Edwards, Jacob K. Friefeld and Rebecca S. Wingo, Homesteading the Plains: Toward a New History (2017) pp. 93-95.) Enslaved African Americans were not eligible to homestead until after the Civil War, when their citizenship was legally recognized. The Act’s initial promise of a fair chance, therefore, was limited to a majority White population comprising American citizens and foreign immigrants who could earn citizenship while fulfilling the homesteading requirements of living on and cultivating their 160-acre parcel for five years (later three).

THE SOUTHERN HOMESTEAD ACT OF 1866

While the post-bellum recognition of citizenship allowed emancipated Black Americans to claim land under the original Homestead Act, the vast majority of freed persons could not afford to travel to a claim, build a rudimentary home, cultivate the land, and plant a crop. Moreover, the fabled promise of forty acres and a mule had instilled the expectation that freedmen would be granted property rights in the South. Congress ostensibly attempted to address the freedmen’s desperate need for resources in 1866 through the so-called Southern Homestead Act (SHA). The SHA applied to public lands in five states of the former Confederacy. (Richard Edwards, African Americans and the Southern Homestead Act (2019) 39 Great Plains Q., pp. 103, 105-107.) As with the original Homestead Act, the public lands included the ancestral lands of Native American tribes that had already been subjected to a successful centuries-long, often brutal, campaign of displacement and encroachment. (Merritt, supra, p. 46.)

Unlike the original, the SHA was generally a failure. Of the 3.9 million freed persons, only around 6,000 Black households, representing roughly 36,000 people or less than 1% of the Black population, successfully claimed title to Southern homesteads (Edwards, supra, p. 124.) After President Lincoln’s assassination, Andrew Johnson pardoned disloyal Confederates, returning their confiscated lands. This reduced the quantity of high-quality agrarian land available for homesteading, leaving land that required prohibitively expensive preparation before any production or profit was possible. (Edwards, supra, pp. 105, 107.) During its first year, the SHA was exclusive to freed persons and loyal whites. However, many freed persons had signed labor contracts with their former owners as their only available source for earning a living. Those contracts extended through the Act’s exclusivity period, obviating any advantage. (Merritt, supra, p. 330 (citing Claude F. Oubre, Forty Acres and a Mule: The Freedmen’s Bureau and Black Land Ownership (1979) p. 31.) While the SHA required a lower filing fee than the original act and initially granted 80-acre parcels rather than 160 acres, reducing the costs of homesteading, freed persons, excluded utterly from the economy could not afford even the SHA’s reduced costs. (Edwards, supra, pp. 108, 115.) Continued racism and violence against freed Blacks in the South also worked at every juncture to curtail the promise of land ownership under the SHA. (Edwards, supra, pp. 115-117.) The SHA was repealed in 1876, leaving most Southern African-Americans unpropertied and entangled by racist policies and circumstances not dissimilar to their former enslavement. (Merritt, supra, p. 324.)

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THE GENERAL ALLOTMENT ACT OF 1887

White settlement in America subjected the indigenous peoples to ever increasing encroachment, official policies of coercive removal, and outright warfare that rendered their lives unbearable and forced their relocation. As they were removed to reservations, much of their aboriginal territory was eventually claimed as public land of the United States and opened to homesteading. (See, K-Sue Park, Self-Deportation Nation (2019) 132 Harv.L.Rev. 1878, 1888-1904; Edwards, Friefeld & Wingo, supra, pp. 91-93.)

Congress undertook a new policy of social engineering with the General Allotment Act of 1887 that aimed to assimilate Native Americans into the White agrarian society by transferring the ownership of tribal lands to individual Indians. (Judith V. Royster, The Legacy of Allotment (1995) 27 Ariz. State L.J. 1, 7-9; Kathleen R. Guzman, Give or Take an Acre: Property Norms and the Indian Land Consolidation Act (2000) 85 Iowa L.Rev. 595, 597.) Tribal land was allotted to families and individuals in 160- and 80-acre parcels. Reservation land that exceeded the members’ allocation needs was deemed “surplus.” While some well-meaning reformers believed the Act would benefit Native Americans, others saw a nefarious purpose in the Act’s provision opening surplus parcels to general homesteading. As feared, that provision exposed more reservation land to White settlement. By 1934, Indian lands had dropped from 138 million acres to 48 million, 20 million of which were considered undesirable. (Guzman, supra, p. 605.)

My great-great-grandparents began staking claims in what is now North Dakota in 1886. They likely did not know that Native Americans had been massacred 23 years before at Whitestone Hill, just 40 miles from their homestead. They likely gave little thought to the fact that millions of freed African Americans remained landless in the land of their forefathers, while they and their immigrant compatriots established the legal precursors to American citizenship and land ownership. Given the existential challenges the settlers faced on their isolated, windswept parcels, an imperfect understanding of civic affairs is, perhaps, excusable.

Not so three generations later. The homestead claims provided my family with the stable economic foundation to allow the purchase of more land, the starting of businesses, the earning of degrees, and the passing on of inheritances. I have had the good fortune of those benefits because my family is White. A calcified telling of my origin story without that critical fact cannot be excused. Indeed, its retelling is long overdue.

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