NOTE FROM THE EDITOR
Dear readers, this an enlightening article about a part of the history of the United States land after it was taken from Native Americans during the Indian Wars, put on a government trust, and granted rights to use it to private corporations, such as the transcontinental railroad. Written by Steve Russell, of the Indian County publication, it will show you the real history of injustices committed against the real settlers of America. PART 1 of a series of two.
Confronting the Feds: Armed ranchers and peaceful native water protectors
by Steve Russell
Indian Country
Settlement of the western U.S. was a government project, subsidized every step of the way, starting with the military part of the Indian Wars. In addition to suppressing Indian opposition, the government funded the transcontinental railroad, and the Homestead Act of 1862 promised “free” land (only lightly used by the Indians recently evicted) to settlers who lived on it for five years and produced crops.
It is more than ironic, then, when beneficiaries of those settlement policies now see the very same government as intrusive and tyrannical. An interactive map published by High Country News, shows how dangerous it is these days to work for one of the government agencies managing public land. The contrast between how ornery, misguided white guys with guns are treated as opposed to Indians peaceably protecting their ancestral land from degradation is also nicely laid out by the Marxist publication, The Jacobin.
Federal intrusion, real or imagined, is a bit of a modern Rorschach test for the half-informed modern mind. A review is in order.
While the Civil War was still going on and before the shooting part of the Indian wars ended in 1890, it became federal policy to encourage and subsidize settlement in the west. Between 1850 and 1871, the government granted railroads 1.31 million acres of land for rights of way, some of which bisected Indian treaty land. Federal loans to railroads to fund construction totaled almost $65 million.
Under the Pacific Railway Act of 1862, in addition to the rights of way and the loans, the railroads got a grant of up to 20 sections of land for every mile of track laid. A section is a square mile or 640 acres, and the grants were made in a checkerboard pattern for 40 miles on each side of the right of way.
When some of the western lands proved too dry for farming, settlers began to agitate for federal irrigation projects. The railroads supported the idea with enthusiasm because water would increase the value of the land they had been granted to encourage construction. Federal involvement began in 1902, and in 1923 irrigation and flood control were centered in the Bureau of Reclamation, which sold water to farmers at a fraction of fair market value.
Irrigation was a boon for farmers like the railroads were for ranchers. The great cattle drives of the 19th century were undertaken by rounding up a herd from the open range and driving it to a railhead for shipment to the eastern cities where the consumers of the beef waited. No rail—no sale.
In 1850, the U.S. had about 9,000 miles of railroads. By 1885, there were 87,000 miles. Ranching in the west was made possible by the federal government forcing the Plains Indians to reservations, allowing free grazing on the open range, and funding the railroads to get the cattle to market.
The Homestead Act was amended many times, and the last state to encourage settlement with “free land” was Alaska, where the Supreme Court refused to recognize aboriginal land titles in the Tee-Hit-Ton Indians v. United States in 1955. The last homestead deed was issued for land in Alaska in 1988.
Another law that was a people magnet was the General Mining Act of 1872 that allowed mining on public land, first come-first served, without having to split the income from public lands with the government (or dispossessed former inhabitants).
Ranching, like farming and mining and clearing the land of its rightful inhabitants, was subsidized by the government. Until 1934, when the Taylor Grazing Act changed the rules, federal land was available to graze livestock without charge. Since then, ranchers are supposed to get permits from the Bureau of Land Management (BLM) and pay a fee that is typically under fair market value. A similar law allows for grazing permits on land controlled by the Forest Service.
The ranchers, like the miners to a lesser degree, were born with government largess they take for not only a birthright but also a constitutional principle. Their constitutional ideas proceed on two fronts.
First, they embrace the Tenth Amendment principle that the federal government is one of enumerated powers. Since there is no enumerated power to maintain and manage an inventory of public lands, they maintain those lands are subject to state sovereignty. They are correct about only one state, Texas, which retained title to public lands in its annexation treaty.
Second, they take the Second Amendment right to keep and bear arms to be not primarily for hunting or home defense, but for armed insurrection against federal tyranny, the outcome of the Civil War notwithstanding. This is radical American exceptionalism when most of the world considers imprisonment without charges or government control of the media to be tyranny—yet some ranchers in the American west find tyranny in grazing fees.
Failure to pay grazing fees is not a crime, so the government relies on the common legal rule that one who provides necessary food for an animal has a lien on the animal. To deal with deadbeat ranchers, the BLM hires cowboys to round up the livestock being grazed on public lands and sells the animals to cover the grazing fees.
Luther Wallace “Wally” Klump, an Arizona rancher, got put in jail for contempt of court during a BLM action to collect grazing fees. Klump’s 2004 statement to The New York Times put together the issues in a manner as clear as it is frightening:
The Second Amendment is my ace, and they know it’s my ace. The founding fathers gave the individual a gun to fight the tyranny of the government. What’s that mean? The bearer can kill someone in government if the reason is justified. But it’s never been tested. I told them, you take those cows, I’ll kill you as mandated by the Second Amendment.
