Laws and Regulations Related to Homesteading
Below are several important laws and regulations related to homesteading in the United States.
1785 Land Ordinance – May 20, 1785 (Journals of the American Congress, Vol. IV, Ordinance of May 20, 1785, p. 5207):
--Congress, acting under the Article of Confederation before adoption of the Constitution, enacted the first law to manage newly established Public Lands that resulted from the newly independent 13 states agreeing to relinquish their western land claims and allow the land to become the joint property of all citizens of the new nation—these came to be called the Public Lands.
--The 1785 legislation enacted a Land Ordinance (Act) for the public lands northwest of the Ohio, providing for their survey and sale but in tracts no smaller than 640 acres.
--Provisions also included land dedicated to support public education.
--The 1785 ordinance laid the foundations of land policy for the Public Lands with the next most significant change resulting from the passage of the Homestead Act in 1862.
1801 Act: (“An Act giving a right of pre-emption to certain persons who have contracted with John Cleves Symmes, or his associates, for lands lying between the Miami rivers, in the territory of the United States northwest of the Ohio.”) March 3, 1801 (2 Stat 112)
--This law as followed by an Act passed on May 1, 1802 (2 Stat 179) that extended and continued provisions of the 1801 Act.
--The 1801 Act was the first of many laws on pre-emption or preference rights for pioneer settlers on public lands. –The principle established was to favor squatters while discriminating about land speculators and investors.
--During the next 40 years, Congress enacted more pre-emption laws, with the most significant being on Sept. 4, 1841, known as The 1841 Preemption Act (see below)
1812 Act Establishing General Land Office: (“An Act for the establishment of a General Land-Office in the Department of the Treasury.”) April 25, 1812 (2 Stat 716)
--This Act consolidated into one office responsibilities for the public lands that previously had been handled by several governmental entities.
--The new office was to be headed by a commissioner, with the GLO having authority over the survey and sale of Public Lands, plus later the administration of homesteading legislation
--The Act stated that the duties of the GLO Commissioner, under the direction of the Treasury Department (and later after 1849 under the Department of the Interior) were: “…to superintend, execute and perform all such acts and things, touching or respecting the public lands of the United States, and other lands patented or granted by the United States, as have heretofore been directed in law to be done or preformed by the office of the Secretary of State, of the Secretary and Registrar of the Treasury, and of the Secretary of War, or which shall hereafter by law be assigned to the said office.”
1820 Sale Act: (“An Act making further provision for the sale of the public lands.”) April 24, 1820 (3 Stat 566)
--The original wording was: “That from and after the first day of July next , all the public lands of the United States, the sale of which is, or may be authorized by law, shall when offered at public sale, to the highest bidder, be offered in half quarter sections [80 acres]; and when offered at private sale, may be purchased, at the option of the purchaser, either in entire sections [640 acres], half sections [320 acres], quarter sections [160 acres], or half quarter sections [80 acres]….”
--This law abandoned credit system for buying public lands.
--It set a minimum fixed price of $1.25 per acre, and a minimum unit of sale of 80 acres.
--Public lands were initially offered by district land offices at preannounced, scheduled public auction. Then, if unsold, lands were available for purchase at minimum price on a first-come-first-served basis.
1841 Preemption Act: (“An Act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption”) Sept. 4, 1841 (5 Stat 453)
--This law established further preferential rights to settlers and squatters on public lands, in event of conflicts evolving from the sale of disputed lands.
--Under conditions of building a dwelling and settling on the land and “improving” it, a claimant could buy up to 160 acres, at not less than $1.25 per acre, if the person otherwise had not previously pre-empted land or owned 320 acres of land “in any State or Territory” or was obtaining the land for speculation
--persons making such claims had to be “the head of a family, or widow, or single man, over the age of twenty-one years, and being a citizen of the United States, or having filed his declaration of intention to become a citizen, as required by the naturalization laws”
--Act also granted 500,000 acres of public lands to each new State admitted to the Union “for purposes of internal improvement,” and reserved saline lands from entry.
--Act was repealed in 1891.
--Note: This act is seen by many historians as marking a significant change in national land policy: promoting the division of public lands into small farms for the greatest number of people. For the first time, settlers purchasing public lands could make smaller payments over a period of time instead of cash payment made in full.
--The Preemption Act also advanced the rights of some women to buy land, although all were eligible. Only widows and women who were heads of households (those whose husbands were absent or incompetent, or women who supported children due to divorce or adoption) could buy preemption lands. Single women of age 21 or older were not eligible to buy public lands. Only the later 1862 Homestead Act changing that.
1862 Homestead Act: (“An Act to secure Homesteads to actual Settlers on the Public Domain”) May 20, 1862 (12 Stat 392); Amended March 21, 1864 (13 Stat 35); and also amended several more times including significant amendments in 1891, 1904, and 1912 as discussed below under those years; repealed 1976 by FLPMA
--this was the first homestead act where settlers could obtain up to 160 acres without cost other than certain filing fees
--the first filings on land as homesteads were allowed starting on January 1, 1863, the same day that President Lincoln issued the Emancipation Proclamation
--homesteaders had to be the “head of a family or at least twenty-one years old,
--homesteader had to be either a citizen of the United States, or had filed a declaration of intention to become such, as required by the naturalization laws of the United States,
--the homesteader also could never have borne arms against the United States Government or given aid and comfort to its enemies – thus eliminating those Americans in States that had joined the Confederacy from being able to homestead initially
--the land that could be claimed was “one quarter section or a less quantity of unappropriated public lands, upon which said person may have filed a preemption claim, or which may, at the time the application is made, be subject to preemption at one dollar and twenty-five cents, or less, per acre; or eighty acres or less of such unappropriated lands, at two dollars and fifty cents per acre”
--the homesteader also had to make an application for the land with the “register of the land office in which he or she is about to make an entry”
--required: 5-year residence on land, a habitable dwelling, and cultivation of the land (though was not specific as to how much cultivation was required)
--Section 8 allowed the person making the homestead claim to convert the claim to what otherwise was a preemption land claim and pay for the land as if it had been originally claimed under preemption law. In effect, the “homesteader” was now buying the land for not less than $1.25 per acre (with some preemption lands costs $2.50 per acre). Consequently, the final patent to the land did not cite the 1862 Homestead Act as the legal authority for the conveyance, but instead the 1820 Sales Act (3 Stat 566) previously listed. The original legislation did not set a specific minimum length of time that a “homesteader” needed to reside on the land before being able to convert the claim to land to be purchased (a process called “commutation”). Later, the standard became 14 months although sometime between 1871 and 1883, it had been 6 months.
--The 1862 Homestead Act was remarkable for allowing single women homesteading rights equal to men if they were the head of a household
--March 21, 1864 amendment aided men homesteaders in military or naval service in meeting requirements of the 1862 Homestead Act by allowing alternative ways to meet some of the requirements
-- this included allowing the men to “make the affidavit required by said act before the officer commanding in the branch of the service in which the party may be engaged” provided that the homesteader’s “family or some member thereof, is residing on the land which he desires to enter, and upon which a bona fide improvement and settlement have been made”
-- the March 21, 1864 amendment also allowed the clerk for the county in which the homestead applicant was living to take such affidavits instead of having the applicant file them in the district land office that could be farther away and inconvenient to the homesteader who was in service.
1872 Soldiers’ and Sailors’ Homestead Act: (“An Act to enable honorably discharged Soldiers and Sailors, their Widows and orphan Children, to acquire Homesteads on the public Lands of the United States”) April 4, 1872 (17 Stat 49); Amended June 8, 1872 (17 Stat 333); Amended March 3, 1873 (17 Stat 605)
--The April 4, 1872 Act and its two amendments began the policy of allowing soldiers and sailor certain benefits when homesteading
--The April 4, 1872 Act allowed honorably discharged veterans to count up to 4 years of their service toward meeting residence requirements thereby shortening the period to as little as one year, which was required of all
--Also: “That in case of the death of any person who would be entitled to a homestead under the provisions of the first section of this act, his widow, if unmarried, or in case of her death or marriage, then his minor orphan children, by a guardian duly appointed and officially accredited at the Department of the Interior, shall be entitled to all the benefits enumerated in this Act”
--Additionally, if the veteran “died during his term of enlistment, the whole term of his enlistment shall be deducted from the time heretofore required to perfect the title”
--Also, veterans who had homesteaded on 40, 80, or 120 acres, were allowed additional entries of 120, 80, or 40 acres to reach a maximum of 160 acres; these additional homestead entries originally had to be on land contiguous to the original homestead
--Further, if a veteran returned from service to find that his entry had been cancelled “by reason of his absence from said tract while in the military or naval services,” his rights to the land were restored if the tract was not otherwise disposed of, and if it were, the veteran could “enter another tract” (file for another homestead) with his rights acquired on the first tract transferable to the new entry
--The June 8, 1872 amendment made mostly minor word adjustments to the April 4, 1872 Act
--The March 3, 1873 amendment was much more important: It allowed the additional homestead rights for veterans to be assignable to someone else and also located elsewhere, thus creating a form of script that could allow for the accumulation of large bodies of land under homestead legislation.
1874 Act Concerning Legalizing Homestead Entries on Public Lands: (“An Act to legalize entries of public lands under the homestead laws in certain cases”) June 22, 1874 (18 Stat 192)
--This Act was to eliminate possible confusion of interpretation of what were legal entries on public lands under the 1862 Homestead Act (12 Stat 392) and its March 21, 1864 amendment (13 Stat 35)
--It also stated that this act was not to “be construed to impair the valid and paramount adverse rights of any person or corporation to any of such lands, except in so far as the right of Congress to protect the claims or rights of homestead settlers upon lands within the limits of grants of lands to any railroad company may have been reserved in the acts making such grants and be now lawfully existing.”
1875 Indian Homestead Act: (Section 15 of “An act making appropriations to supply deficiencies in the appropriations for fiscal years ending June thirtieth, eighteen hundred and seventy-five, and prior years, and for other purposes”) March 3, 1875 (18 Stat 420)
--An Indian “who is the head of a family, or who has arrived at the age of twenty-one, and who has abandoned, or may hereafter abandon, his tribal relations” (and proving it) could file for a homestead