The Properties of the Homebuilder
The Properties of the Homebuilder
Abstract and Keywords
This chapter explores the way that the Forest Service began articulating a different vision of settling the West, which involved settlers using public property rather than homesteading it. It also concentrates on the powerful influence of the homebuilder on the politics of public grazing. The very livelihood of the West depended on keeping government control out of the public domain. The Forest Service was the first experiment to adjudicate and negotiate the competing claims of ranchers to public lands, and this experiment involved ranchers and federal bureaucrats in creating a new institution for property rights in the West. By World War I, ranchers saw their use of those lands through their private real estate; that private real estate, in turn, served as the institutional foundation for their access to public lands; those public lands were owned by a government, whose ownership was understood to be like that of an individual.
The great and boundless West may change, the cattle king may become a memory, but in his place and in the place of the measureless ranches which may be divided, will come ten thousand homes of industry which will spring up where happy children will play from morning to evening, and music’s melodies will take the place of carnage and strife.
—J. A. Reed at the 1903 National Live Stock Association Convention
“I have heard cow men and sheep men stand up and appeal for the rights of the settler, and you would think the settler has no other friend,” groused Sam Cowan in a speech before the convention of western cattlemen in 1907. “You fellows don’t care about the settler.…There is no use to mince words, and make false pretenses. What you want is to get as much grass for your stock as you can.”1 Cowan (that is, Sam Houston Cowan) was a Texas attorney who served as legal counsel and lobbyist in Washington for both the American National Live Stock Association and the Cattle Raisers Association of Texas. In the capital, he was known as one of the great railroad rate lawyers; in the ANLSA, he was known for his plain talk and his long-winded speeches.2 Used to playing hardball politics, he was no doubt puzzled by the sentimental paeans to the homesteader that were endemic at the ANLSA’s annual conventions in the early years of the century. Having undoubtedly observed that most political rhetoric masked economic self-interest, Cowan tried to goad the cattlemen into talking about what was of most interest to them: how to secure the public range for their ranching operations.
(p.38) But Cowan’s attempt failed. If anything, the association increasingly praised the homesteaders of the West in the years before World War I, so much so that the ANLSA’s president declared in 1916,: “I want to put myself fairly on record, at this time, as a believer at all times in the legitimate homesteader—the man who comes right out and drives down the stakes of civilization in the wild, and sometimes, desolate, country; the man who rears a family under adverse conditions; the man who makes a real home and puts up a permanent roof-tree.”3 Given that ranchers have typically been seen as enemies, and even bullies, of small settlers, such a homily to “the homesteader” seems strange indeed. Certainly, there was political pressure on organized ranchers to voice their support for settlers. But the fact that leaders of the association sustained this kind of talk for so long, and did so relatively unambivalently, suggests that their embrace of “the homesteader” did more than just hide their interest in gaining control of the range. It was, in fact, a central part of the transformation of ranching’s identity and the politics of public grazing.
In this period, a conjuncture of events provided new social and political contexts for organized ranchers. For one thing, while many of the big cattlemen remained in the business, smaller family operations also emerged during this period, and both big and small ranchers employed different methods and principles in operating their businesses than did the frontier ranchers of the late nineteenth century. Western cattle ranchers began “breeding up” their herds—that is, investing in purer bred cattle—to meet consumer demand for higher grades of beef; these cattle were less hardy than earlier breeds and required better care, including feed during the winter. Ranchers thus now devoted more of their land to cultivating hay or other forage crops. What these changes indicated was that ranching was settling down, and although thousands of ranchers still used the public lands, their operations looked more like farming than ever before; indeed, their resemblance to farming provoked many a discussion at the ANLSA conventions. The changes in practice on the range were also both fueled and given political meaning by the renewed national interest in homesteading and, specifically, in altering the terms of the Homestead Act. Congress devoted more time to the public lands question during this period of less than twenty years than it had since the 1860s and 1870s, and the attention given to homesteading would have profound effects on both western ranching and the subsequent relationship between ranchers and public land agencies, as the “bona fide homesteader” became an inviolable and very popular (p.39) figure in the political discourse surrounding the public lands. In both planned and unplanned ways, ranchers hitched their fortunes to the “homebuilder”; and in quite unpredictable and fascinating ways, this move established the terms in which ranchers and land managers would understand the public range of the twentieth century.
But if the homesteader was ascendant in this period, other events and trends moved the public land question in quite different directions—directions that tell us much more about the organization of politics and the power of the federal government. Perhaps most important, in several key decisions, the Supreme Court gave the federal government the green light to manage public grazing lands as it saw fit, and this goahead provided the Forest Service with the authority to develop and forge, sometimes with the help of ranchers, the policies that would govern grazing on the public lands until the present. The authority in and of itself was critical to the government, setting out the wide scope of its powers over the public lands. This authority, in turn, helped to build further the institutional structures for managing grazing in the national forests, and it provoked tremendous debate over the proper role of the government with respect to the public domain. Finally, if the federal government was becoming increasingly organized and mobilized around questions of the range, ranchers, too, were building impressive organizations to lobby for their interests, the most prominent ones being the National Live Stock Association (which early in the century became the American National Live Stock Association) and the National Wool Growers Association.
These two associations certainly did not represent the political views of all ranchers and of ranchers’ smaller organizations: given how many of these there were—from county livestock associations to state-level ones—that kind of representation would have been impossible. But the coordination of national political activity is an important story to tell about the western livestock industry, because it would have such a profound influence on the formation of public land policy. That coordination brought the “national” livestock associations into a closer relationship with public land administrators than anything ranchers had known in the nineteenth century, and it opened the way for these two groups of actors to envision a new future for the public lands.
I use the word “envision” very deliberately, because this chapter explores two different visions about the West—and, specifically, two different stories about the public property of the West. In the early years of the century, one vision was dominant among politicians, many western (p.40) citizens, some ranchers, and a good portion of the general public: the West needed to be peopled by homesteaders, and the land had to be divided and dispersed among small-scale property holders. For a variety of reasons, this projection left ranchers almost entirely out of the picture. But gradually, as politically organized livestock owners and federal land managers developed policies for the range, another vision emerged: the West could be filled with ranchers who would make their homes using large tracts of leased public land. Of course, we know the end of the story, that homesteading largely failed, and that by midcentury, the government managed hundreds of millions of acres for ranchers’ use. But that story has some very peculiar twists, for although ranchers would later become infamous for their often brutal use of political force, in these years they were very decidedly the losers in almost every political battle of note. And because they were on the defensive politically for so much of this time, they appropriated the terms of their opponents, noting time and again that they believed the homebuilder would be best helped by government management of the public domain. How the homebuilder came to be such a popular presence at ranchers’ conventions, and how he came to have a powerful influence on the politics of public grazing, is the focus of this chapter, for it was he more than any other figure that would change the course of policy for the public domain.
From the late 1800s through the early 1900s, the differences between ranching and farming were built into the categories people used to talk about western land use. Even though by the early twentieth century, ranchers were taking much better care of their animals and were actually cultivating forage and feed for them, ranching was not considered a part of agriculture. As late as 1914, a western livestock and loan manager noted, in a comment on whether the government should encourage further homesteading in the West, that “[p]assing laws to create ‘agriculture’ where nature planned a grazing or pastoral country does not relieve the situation any more than the efforts of the land locators, emigrant agents, or speculators to make the crops grow on the Bad Land Buttes of the Dakotas.”4 Like many other people associated with the cattle industry at the time, he did not believe that the government could make the semi-arid lands bloom with farms. But more important for our story, he did not see “grazing” as an agricultural pursuit.
This would have been self-evident to the cattlemen of the late nineteenth century, whose history seemed to distinguish them sharply from (p.41) pioneer farmers. But these perceived differences from settlers also made ranchers politically unpopular, cutting them out from a widespread movement that sought to retain America’s agricultural base. Proponents of this agrarianism argued that the nation could not continue to grow and develop without a stable population situated on the land, and that good citizenship stemmed from a man’s owning his land and improving its value with the labor of his family. That the early 1900s saw a steep increase in migration from farms to cities created enough anxiety to spawn a veritable industry of publication on the “farm problem” well into midcentury. Such concern over how the United States would maintain its agricultural population produced an enormous amount of social commentary during the Progressive period and fueled the rise of both the country life movement, a mostly urban-based movement that sought to “uplift” the lives of farm families, and a brief back-to-the-land movement. Even President Roosevelt joined in investigating the problems of the American countryside.5
Encouraging homesteading was thus a response to a national concern over the country’s agrarian base. But homesteading as a western phenomenon had other associations as well. By the 1890s, most of the fertile public lands had been taken up, and the 400 million acres left lay in the semi-arid and arid West. Westerners put their hopes initially in irrigation to reclaim the dry lands from rangeland and create a society of profitable homesteads. As the irrigation prophet William E. Smythe wrote in The Conquest of Arid America, irrigation was the key to opening up a new kind of society in the West. In this vision, ranching would fast become a thing of the past. “Civilization is driving barbarism before it,” he argued. “The conflict is between the civilization of irrigated America and the barbarism of cattle ranching.”6 For Smythe, who was both editor of Irrigation Age and a popular writer for such magazines as Harper’s and the Atlantic, agriculture was “the basis of civilization,” upon which the nation had “hastened to erect the superstructure of a complex industrial life.”7
But the argument that farming provided the only means for settling the West with homes and families also emerged with irrigation’s flipside: the dry-farming movement. It too was fed by the notion that a stable society could only be rooted in a stable farm population, a belief that was especially profound because the movement claimed to be creating farms in semi-arid areas that seemed impossible to cultivate.8 Throughout the early 1900s, boosters of the West maintained that dry farming was the only way to bring the vastness of the semi-arid public domain (p.42) into the national polity, the only way both to utilize these lands productively and to sustain the country. Indeed, although Alva Adams had praised the newly organized cattlemen of the West as governor of Colorado in 1898, as the former governor in 1911, he declared at the Dry Farming Congress, “The best way to conserve the land is to use it, and it will be a fortunate day for state and nation when there are no great reservations and no public land; but when every quarter section will be the home of an industrious, producing American citizen.”9 The figure of the homebuilder thus emerged as the embodiment of western agrarian ideals—the man who, along with his family, would settle, and settle down, the country, who through his and his family’s labor would cultivate and improve the region, transforming disordered public lands to orderly private ownership.10
By these standards, the turn-of-the-century livestock owner was seen as anything but a homebuilder, and before the early 1900s, ranching and homebuilding were culturally and politically viewed as antithetical categories in stories of western development. If the values of farming were seen to lie in the ownership of private property, agricultural improvement of land, family stability, and residential permanence, at the turn of the century ranching was still widely considered to be merely a temporary industry. Ranchers used vast amounts of land—the public domain—that they did not own, which they did not improve through cultivation, and on which they merely grazed their animals. And ranching was seen not to operate from homes with families. In what was a common rendering of late nineteenth-century ranching, Edward Everett Dale wrote in 1930: “Camps occupied by ranchmen and their employees and corrals for use in caring for the animals were of the most flimsy and temporary character. Under such circumstances homes and family life were virtually impossible. As a result the range area developed as a ‘man’s country’ where women and children were seldom seen.…[Ranching became] entirely removed from the refining influences of home and civilization.”11
Ranching’s untempered masculinity contrasted starkly with the constructions of farming in this period, in which women and children were essential participants. Roosevelt played up the image of the “primitive” ranchman in his reminiscences, of course, and cattlemen also enjoyed boasting of their frontier pursuits. In none of their representations of the industry was the rancher depicted as an analogue to the family farmer, or the ranch as a semi-arid family farm. If “[t]he country home” was “the safe anchored foundation of the Republic,” the western ranch (p.43) was seen as a transient outpost for capital on the hoof and masculine heroism.12
Thus, despite the disappointing results of the Homestead Act in the semi-arid and arid West, it alone provided the framework within which Congress created the nation’s public land laws during the Progressive period. For these politicians, and for officials in the Department of the Interior—which administered the Homestead Act through the General Land Office—the crisis of the public domain involved determining how much acreage was needed to support a family, and their ultimate goal was to transform the entire public domain into privately owned parcels. Such western politicians as Frank Mondell of Wyoming and, later, Harvey Fergusson of New Mexico were prime movers in popularizing legislation that increased the amount of acreage available under the principle of homesteading. The Kinkaid Act of 1904 was the first experiment in expanding these provisions, allowing settlers up to 640 acres in the Sand Hills of western Nebraska, with the idea that they would establish homesteads for small livestock operations. Although politicians and officials would argue about how successful this experiment was, as E. Louise Peffer points out, “the start made in creating grazing homesteads proved abortive.”13 With the emergence and initial successes of dry farming in the semi-arid West, the Kinkaid Act was followed in 1909 by the Enlarged Homestead Act, which allowed settlers to enter 320 acres on the public domain and was intended to encourage cultivation. However, in 1916 Congress went back to the idea embodied in the Kinkaid Act and passed the Stock-Raising Homestead Act, which allowed settlers 640 acres of the public domain and was specifically designed for small livestock operations.
These last two acts spurred the greatest run on homesteads since the passage of the Homestead Act (see figure 2), but two other points are equally important for our story. The first is that, given Congress’s intense interest in getting the Homestead Act right, and given the clear popularity of homesteading as part of a larger agrarian discourse, the terms of the political debate about the public lands narrowed until few participants could speak about the public domain without voicing support for “the homesteader.” However, within this constricted atmosphere of political discussion, there was a genuine struggle among politicians, bureaucrats, and ranchers to understand what form the homestead would take in the West, and whether it should involve ranching. Congress experimented with the idea of small ranch-homesteads in the Kinkaid Act, for example, then retreated to the notion of an agricultural homestead with the Enlarged Homestead Act, only to revise that again in 1916, allowing for small ranch operations. And that struggle would be echoed among cattlemen, who were also trying in these years to understand the relationship between homesteading and ranching. But as influenced as they were by the debates about homesteading, the western livestock associations had also entered a political relationship with officials in what would soon become the Forest Service, and that relationship would have a profound effect both on how ranchers envisioned their place in the West—and more significantly, how their place would be established as policy by the federal government.
(p.45) Leasing the public domain became a serious policy option with the presidency of Theodore Roosevelt because of his willingness, even eagerness, to open up the national dialogue about the public lands. In 1903, Roosevelt appointed a Public Lands Commission, made up of Gifford Pinchot (then head of the Forest Bureau) F. H. Newell (chief of the Reclamation Service), and W. A. Richards (commissioner of the General Land Office). Roosevelt’s commission both harked back to the Public Lands Commission of 1879—which included John Wesley Powell’s recommendations for the western public domain—and looked forward to a new era in public land management, favoring more federal involvement on the range.14 The commission traveled throughout the West and met with 102 representatives of the National Live Stock Association; it also sent out a circular of questions to livestock owners across the West, receiving replies generally favorable to federal range control.15
Representing Roosevelt’s political views, as well as its own, the commission recommended doing away with a number of troublesome provisions under the settlement laws, including the repeal of the Timber and Stone Act of 1878—under which many fraudulent claims had been filed—and the commutation principle of the Homestead Act. Congress acted on neither of these proposals and, in fact, passed only a minor point among the commission’s recommendations.16 But despite its failures in the realm of legislative action, the commission made important recommendations for the western livestock industry as a whole. It proposed that the remaining public domain be classified according to its agricultural possibilities, and that those lands that were only suitable for grazing should come under a loose form of government administration. The commission noted that livestock owners themselves wanted “government control of the ranges under reasonable regulations made to meet local conditions, and providing for a proper classification of the lands.”17 And classification had long been recommended within the government, John Wesley Powell having done so in 1879, for instance. As a way to order the vast area of land into manageable and productive units, classification was put forward as the solution to the endless disappointments of homesteading in the semi-arid region and as the means that would ultimately allow ranching to flourish. But the commission’s report also indicated that it could only consider the future of ranching through the established principles of homesteading, especially the imperative that the government had to discover the correct amount of (p.46) acreage that would support one family in ranching, just as it had settled on 160 acres as the correct amount to support one family in farming in the Midwest. For instance, the commission stated that “lands which could only be used for grazing should be so classified, and entry or settlement should only be allowed under such conditions as offer a reasonable assurance of the successful establishment of a home. New men engaging in the stock business should be allowed the use of enough land to support a home, the development of ranches suited to the support of a single family being the condition desired for the best use of public grazing lands.”18
While the commission did not recommend “the immediate application of any rigid system to all grazing lands,” it did propose a plan that would give the president authority to establish grazing districts, and the secretary of agriculture would be able “to make and apply appropriate regulations to each [grazing] district, with the special object of bringing about the largest permanent occupation of the country by actual settlers and home seekers.”19 This language, emphasizing that the object of leasing was home-building, would have long-lasting effects on the grazing debates. For one thing, it suggested that the ranching industry was still dominated by monopolistic cattle kings.20 The commission’s report would also contribute to the rather awkward fit between the support for leasing and agrarian ideals; thereafter, advocates of federal grazing control wedded proposals for a lease law to the notion that homesteading was the primary goal of western development, even though land leasing was anathema to American agricultural ideals of private ownership.
As other supporters of leasing would note in the future, the commission argued that leasing functioned like homesteading: it could attract settlers by proving that the lands were productive for grazing and by giving them more security than under the free-for-all of the open range. The commission noted, for instance, that the leasing of state lands in Texas had encouraged small settlers to come. But the example of Texas also worked against the commission’s recommendations, for without proper regulations, the commission argued, the Texas lease law also spawned tremendous speculation in land, which was the specter that never went away for leasing bills during the Progressive period.21 Any kind of government-run land program, it was argued, was bound to fall into the hands of speculators, not homesteaders. It was a charge made repeatedly against Roosevelt’s conservation program, and one that he and Pinchot worked hard, and often unsuccessfully, to debunk. As Samuel Hays has noted, Roosevelt’s and Pinchot’s support of leasing “identified administration (p.47) leaders with the large cattle corporations, so far as the West was concerned, and brought down upon their heads the wrath of farming groups and their representatives in Congress.”22 And while leasing bills were routinely drawn up in the years following the commission’s report, they never left congressional committees, tainted as they were by the support of politically organized cattlemen in the West.23
The relationship between conservation leaders and politically organized ranchers cannot be characterized simply. On the one hand, in 1906, the National Live Stock Association officially split over whether the federal government should manage the range for grazing. It had previously been an association that encompassed both sheep and cattle producers, but the former now returned to the National Wool Growers Association, and the NLSA became predominately a cattlemen’s association, but with a longer name: the American National Live Stock Association. For some years thereafter, the wool growers supported Congress’s policy of expanded homesteading, suspecting that the Forest Service would privilege the demands of cattle owners over their own. It was not an irrational worry, given the exclusion of sheep grazing from forest reserves in the late 1890s. Conservation opinion was dead set against them: John Muir made his famous statement that he considered sheep “hooved locusts,” and the American Forestry Association “vociferously opposed” the presence of sheep on the reserves.24 Pinchot himself disliked sheep, although he would allow them in the reserves. But his own forestry program also included trying to oust the so-called “tramp herdsman,” who roved over the public lands with his sheep, with no stable base of operations.25
Still, Pinchot’s increasing influence over the forest reserves assuaged some of sheepmen’s concerns. He understood that grazing in the reserves was “the bloody angle” and at “the center of the bitterest controversy,” and in 1900, he traveled to Arizona to investigate the sheep problem.26 This trip would prove a watershed event in several ways, orchestrated as it was by two leaders of the Arizona Wool Growers Association, E. S. Gosney and Albert F. Potter. Potter and Gosney led Pinchot and Frederick Coville—a botanist with the Department of Agriculture and one of the first government scientists to study grazing issues—on a strenuous trek through the Arizona backcountry, and Pinchot was convinced that “Potter deliberately set up this test of toughness for us Eastern tenderfeet.”27 Not only did Pinchot survive the test, but the trip also convinced him that grazing—even sheep grazing—should not be excluded from the reserves, only regulated. Pinchot also developed a friendship (p.48) with Potter and eventually was able to bring him on board at the Division of Forestry as the head of the Branch of Grazing in 1901.28 This would not be the last time that stockmen joined ranks with the foresters, and it was an important part of the culture of what would become the Forest Service; having former stockmen as officials gave the agency links to the associations, as well as a certain political legitimacy.29 With Potter as head of grazing, no western stockman could say that the Forest Service was only a band of eastern-bred college men.
Potter’s presence helped ease some of the tensions between wool growers and conservation leaders in Washington, and it certainly did not hurt the relationship between the latter and the ANLSA, which consistently supported the Forest Service throughout the Progressive period.30 To begin with, the ANLSA enthusiastically endorsed transferring administration of the forest reserves to Pinchot’s agency, a move that Pinchot had lobbied for since becoming chief forester, but which Congress did not accomplish until 1905. That transfer of the forest reserves to the Department of Agriculture bolstered Pinchot’s agency: not only was the USDA a much larger department than Interior, and as Morton Keller has noted, perhaps “the most powerful and effective government department during the Progressive era,” but Pinchot’s conservation program also required a vast expansion of personnel to manage its timber, mining, and grazing interests.31 The transfer expanded the powers of Pinchot’s agency, and it also gave the livestock industry more secure access to grazing lands in the national forests, compared with Interior Department administration. It was this security—that under Forest Service administration, ranchers who used the national forests could depend on being able to graze their animals there—that the ANLSA sought. At the same time, however, Pinchot had to engage the ranching industry in policy controversies; to institute grazing regulation in the forests, the Forest Service established grazing districts, requiring an enormous range of administrative decisions over who would or would not receive a permit, how many animals they would be allowed to graze, and how long those animals would be allowed to graze that particular allotment. While these decisions involved the Forest Service in a host of local conflicts, the agency also became embroiled in a larger political conflict over grazing fees, which Pinchot decided to institute in 1906. All these conflicts, as we shall see below, would have formative effects on how ranchers and Forest Service officials understood the land that lay at the heart of their political relationship. But suffice it to say that, at this moment in the early 1900s, the ANLSA was committing itself to a future of range management, (p.49) both within the reserves, and, the association hoped, in the unreserved public domain, and it was committing itself politically to the Forest Service.
Reasonably enough, that alliance suggested to many westerners that cattlemen and the Forest Service did not support the cause of homesteaders, that they wanted to shut small settlers out of the reserves and keep them off the range. Even at the ANLSA conventions, a number of delegates in the early years of the century stood, at least rhetorically, for the homebuilder, as against the interests of their own association. In what was one of the more common versions of this perspective, one delegate to the convention in 1900 argued that federal leasing of the range would keep “all public lands from entry. The homesteader will have no place to go and locate and establish a home for himself and for his children.…Great corporations within a few years will own the major part of this grazing land.”32 That these corporations included the ANLSA men, whose hearts might not truly be with the homesteader, was a comment often made by members of the association. “[T]here is one class of people that are conspicuous in this meeting for their absence,” began one delegate from Arizona, who spoke at the association’s conference with members of the Public Land Commission in 1904:
I refer to the small stockman and farmer, the home seeker, the pioneer of the West, who is, for the most part, to-day following occupations in blissful ignorance of what is taking place here, which is of more vital importance to that man than to any of us. In many instances it involves his home, the future of his family, and, whatever is done, we must bear in mind that it has been the policy of this country…to keep in view the humbler settlers of the country and to preserve the public lands for the home seeker.33
He went on to worry that, if the government instituted a leasing law, “we will build up a system of serfdom, of peons, as we have in our sister Republic, Mexico,” and that these small settlers would “feel that the Government is against them and that stronger and more powerful people are against them.” While large landowners and cattlemen might gain from government control, he argued—and while it might “add to our individual bank account”—such control “strikes at the root of society, at the foundation of all that is best and most sacred in our Government.”34 The very livelihood of the West depended on keeping government control out of the public domain. As one delegate from Iowa put it, maintaining the homestead principle “means whether or not the States that are sparsely settled today shall be literally covered over with a hardy race of small farmers and raisers of cattle, shall be covered with (p.50) school houses, churches and little towns, that shall pay into the treasuries their taxes to help maintain the country…or whether it [sic] shall be thinly populated by a few cattlemen, as it has been for the past years.”35
But several speakers questioned, as Sam Cowan had, such devotion to the cause of homesteaders, given ranchers’ traditional antipathy toward them and need to control as much grass as possible. “[T]hough on the face of it the cause of the settlers appeal [sic] to our sentiments and to our sense of justice and right, yet such a view is only a superficial one,” noted one member. And a judge from Colorado, reminding his audience that a farm family could not exist on 160 acres in the West, remarked that “there is a great deal of demagoguery in the clamor that has been made here relative to the homesteader. (Applause) Who is the homesteader? Who has been the homesteader in this arid region in the past?”36 These and other speakers attempted both to unmask the ranchers’ rhetoric and to explain the support for homesteaders as a simple case of interference with ranchers’ interests. However, they often seemed resigned to what they saw as the settlers’ inevitable encroachment. The same Colorado judge who opposed the rhetorical grandstanding about homesteaders also saw social benefits in the homesteading movement: “The cottage upon the plain, the little school house upon the hill, the church steeple at the cross roads, all go to admonish us that the higher plan of civilization has invaded the West, and to convince us that the mother, the baby and the hearthstone are here to stay, and demand of us honest, careful and candid consideration.”37
The judge’s obvious ambivalence (the invasion of “civilization”) highlights that ranchers’ exhortations of homesteaders had a strategic purpose, of course, and did not always express cattlemen’s economic interests on the range. Nonetheless, ranchers’ appropriation of the homesteader occurred at their own conventions and was not simply a rhetorical device to win favor from politicians or popular support. Rather, these conventions show the organization in an extended discussion over the relationship between the figures of the rancher and the homesteader. One can see from the above statements, for instance, that ranchers saw little relationship between themselves and the “home-seeker.” Whether they supported the government’s homesteading policy or not, the cattlemen distinguished themselves in their speeches at the early ANLSA conventions by stressing that they were engaged in business, not agriculture, and did not grow crops; that they dealt with the wilder forms of nature; (p.51) and, by implication, that ranching was not an occupation that involved their wives and children.38
But the way these ranchers conceived of the homesteader was also shifting during this period, particularly around the time of the Kinkaid Act. As Congress turned, in a very limited way, to the “grazing homestead” to solve the crisis of settling the public domain, the definition of who could be a homesteader began to expand. And both in and outside of the ANLSA, the “public domain question” came increasingly to involve how the government could best encourage homebuilding on the range. Some of the attempts to get cattlemen recognized in these terms revolved around the familiar evolutionary argument that the cattle or sheep rancher had helped to settle the West as much as the homesteader had.39 Occasionally, too, ranchers claimed a rather paternalistic ground about their status as real homebuilders. For instance, at the 1907 Public Land Convention, which showcased western anti-conservation sentiment, the longtime president of the Wyoming Wool Growers Association, J. M. Wilson, grew vexed that only small-time settlers who came out West to take up lands were seen as homebuilders. Noting that he himself was considering settling two hundred families on his “irrigation enterprise,” he declared: “When the representatives of the government say that they are trying to hold [the public domain] for the homebuilder, they certainly cannot mean that the people of the West are not the homebuilders, the people who have come here from the beginning and have withstood the privations of frontier life.…If they are not the homebuilders I would like to know in the name of Heaven where the homebuilders come from.”40
Speakers at the ANLSA conventions tried explicitly to include ranchers in the category of homebuilders. At the 1904 ANLSA convention, for example, J. M. Wilson showed the same interest in allowing a small rancher to be a homesteader as he would three years later in allowing a large rancher to be a homebuilder: “I notice most of the men here are sheepmen and cattlemen, and the general idea I got in regard to the homestead was that the homesteader was a farmer, similar to back East, and was to plow his land.…Now the homesteader in the arid West is not a farmer. He is the best type of citizenship that there is in the West; he is the small stockman.”41 In a more sentimentalized rendering, a delegate in 1903 maintained that stockmen were like “pilgrim fathers” on the range: “[O]ut of this gigantic range evolution the old dug-out has disappeared before the model American home, with books, music, comforts, (p.52) luxuries and happiness. All hail the home-builders of the American Union!”42 But there was evidently a good deal of confusion over ranchers’ relationship to the terms “homebuilder” and “homesteader.” For instance, at the 1904 Public Land Conference between organized ranchers and the Public Lands Commission, one Colorado delegate explained: “[W]hen I say that homesteaders have taken up homes, I don’t mean the man who wants to raise corn, wheat and oats. I don’t mean the homesteader that mortgaged his farm and ranch, and went back East with the money.…I mean the cattle farmer of to-day; the man with a little herd of 40, 60, 80 or 100 head.”43
That this delegate spoke of the “cattle farmer” indicates just how much more ranching had to do with agriculture than in the open range days. But most significant here is that in their political discourse, members of the association reconstructed the image of their industry by arguing that ranching, like agricultural homesteading, could build permanent homes in the West. Indeed, one of the more prominent opponents of federal range control acknowledged this shift in 1914 when he noted that the Kinkaid Act of 1904 “was an evolution in homestead law, in that it recognized grazing as the basis of the homestead rather than farming.”44
The small stockman was therefore given room to become a western “homesteader.” But another shift in language was also under way, because throughout the Progressive period, leaders of the ANLSA argued that it was not a homesteading policy that would produce homebuilders on the range; it was federal leasing. As Congress considered the terms of what would become the Enlarged Homestead Act, the ANLSA as an organization put its faith behind government range control. Speaking of a congressional proposal to counter an expanded homestead act, the ANLSA’s Committee on Resolutions argued that “[a]bove all, from the standpoint of the public good, [government leasing] will encourage the establishment of homes upon the public lands.”45 Or as former senator Joseph Carey of Wyoming argued before the convention in 1908, about the same bill to provide for leasing the public domain, “It is popular to talk about the homesteader and homebuilder. If the bill under consideration should become law, it would give a great impetus to home building, to ranch development and ranch improvements.”46
To whom were the ANLSA leaders speaking when they supported leasing as the way to make homes on the range? The assumption among historians has been that they used this language to address Congress or some notion of the American public (or easterners) to win them over to (p.53) their political goals. No doubt this was true. But politically organized livestock owners were generally suspicious of the reception they received outside their community, feeling that the rest of the country was biased against ranchers because of their late nineteenth-century reputation as “cattle kings.” In fact, the most important conversation the ANLSA was having was with administrative representatives of the federal government, such as Theodore Roosevelt and officials in the Forest Service. For one of the most striking things about meetings of the ANLSA was the annual presence of foresters—first Pinchot in the early years, and later, grazing experts—who explained the benefits and regulations of public grazing in national forests.47 What we thus see in the changing language of cattlemen is an emerging discourse that paralleled the highly articulated policies of Roosevelt, Pinchot, and, institutionally, the Department of Agriculture. Between the early 1900s and World War I, both the ANLSA and the Forest Service supported a leasing bill for the public domain, and that support was phrased primarily in the language of homebuilding. This shift worked effectively to change ranchers’ positions in visions of the developing West. If ranchers were homebuilders, then they were certainly not just a phase in the social evolution of the West. By publicly voicing its support for the “bona fide settler,” the ANLSA remade its own image, giving it a cultural and political currency that it had not hitherto had nationally, and established cattle production as a legitimate form of homebuilding.
This parallelism between the ANLSA and the architects of conservation is evident when comparing statements by Roosevelt and Pinchot with the speeches of leaders at the ANLSA conventions during the middle years of Roosevelt’s administration, when Pinchot was a ubiquitous presence in the West. Even before the establishment of the Forest Service in 1905, Pinchot established institutional ties with the ANLSA, and the association’s conventions gave him yet another platform from which to explain the administration’s emphasis on homebuilding. In 1904, for instance, he noted to the National Live Stock Association that he had “only one speech for this convention, and I have already delivered it once before to the wool growers.” That speech, which he maintained Roosevelt had asked him to give to the western livestock owners, was “a sort of text” of the president’s policy for the forest reserves, and particularly for grazing therein:
He was talking about the policy of home-making and he said that it was the primary object of our Government; that everything else is secondary; and that the object of the forest reserves…is absolutely the making of homes. (p.54) (Applause)…The whole effort of the Government in dealing with forestation must be directed to this end, keeping in view that it was not only necessary to start homes prosperous, but to keep them so. The way to keep a home prosperous is to keep the forests yielding wood, water and grass, and keep them at it permanently.48
In other words, the relationship between “homes” and the resources needed to develop them was not simply natural, in the sense of not requiring mediation by public authority. The only way to build stable homes in the semi-arid and arid West was through governmental management of natural resources.
This single “text” was continually reiterated by federal officials, particularly by Roosevelt and Pinchot and officials in the Department of Agriculture generally, to the point of becoming an administrative mantra. One of the major reasons for this repetition was Congress’s passage of the Forest Homestead Act in 1906, which opened up the forest reserves to homesteading. But this would not be the homesteading of the past, as the Forest Service was in charge of deeming whether particular parcels of land had sufficient agricultural value to be open for entry.49 Such bureaucratic mediation in the homesteading process sparked understandable fire from many westerners and put Roosevelt and Pinchot on the defensive about their commitment to “home-building.” For instance, in a letter to the 1907 Public Land Convention—which was organized in part to protest the Forest Service’s power over homesteading in the reserves—Roosevelt argued that “[o]ur whole purpose is to protect the public lands for the genuine home-maker.…[I]f the administration’s policy is upset[,] the one man who would be irreparably injured would be the settler, the home-maker, the man of small means, who has taken up a farm which he intends himself to work and on the proceeds of which he intends to support and bring up his family.”50
But if the homebuilder here was a farmer, he was beginning to take on other shapes elsewhere. Roosevelt himself blurred the categories of rancher and homesteader/farmer when he announced to Congress in 1907 that the government’s “prime object” in settling the public domain was “to secure the rights and guard the interests of the small ranchman, the man who ploughs and pitches hay for himself.”51 And Gifford Pinchot noted in the 1908 convention of the American National Live Stock Association that “[t]he men who are employed in caring for the cattle, as a rule, are owners of the cattle and actual home-makers.”52
It was not self-evident to many others in the West that ranchers could be described as homemakers, and certainly large-scale livestock producers (p.55) continued to be unpopular figures. For instance, in the last Progressive-era struggle over the public domain—the hearings that preceded the Stock-Raising Homestead Act of 1916—livestock industry leaders felt themselves very much on the defensive. As the secretary of the National Wool Growers Association, S. W. McClure, argued in hearings before the House Public Lands Committee in 1914, the livestock industry was routinely vilified by advocates of the expanded homestead acts: “It has been my construction, based on what I have heard, that Congress feels that every man who is engaged in any way in the livestock industry of our country is a criminal and that he is of no importance or of no consideration in the West.”53 McClure correctly read the charged atmosphere of the hearings, for he and other stockmen were up against powerful boosters of homesteading. “Iowa is the greatest farming State in the Union, and is second in raising meat, and my State will be settled up like Iowa, except instead of 160 we will have 640 acre farms,” argued Congressman Harvey Fergusson of New Mexico, the sponsor of the Stock-Raising Homestead Act, who was perhaps the era’s best agrarian spin doctor.54 (Admittedly, his audience responded to this claim with some astonishment.) Fergusson was not alone in expressing this agrarian vision. Most of the other congressmen on the committee also supported an expanded homesteading act in the West and had no compunction about publicly attacking the sheep and cattle industries and their supporters. McClure’s defense of the industry, for instance, went nowhere. At one point making the inestimable mistake of referring to the parts of the public domain as “our range,” he was reminded by the committee’s chairman, Scott Ferris, that he “ought not to say ‘our range,’ or impugn the good faith of the homesteader who is seeking a home, because nothing strikes as high a chord as the man who is trying to get a home.”55 Ferris made it clear at another point in the hearings that the western states needed “people, many of them with a few cattle each, not a few people with a large number.”56 Even the ANLSA’s president, Dwight Heard, argued that “[t]here is no question in the world but what the agricultural homestead, properly developed, is better than grazing.”57
Again, such comments should indicate the general level of skepticism, and even hostility, to the idea that ranchers were proper settlers of the western public lands. But there is evidence of some resistance to the terms with which the public domain question was discussed. At the 1915 meeting of the American National Live Stock Association, Congressman William Kent of California, an advocate of leasing, vented his wrath (p.56) in describing the hearings that had preceded the Stock-Raising Homestead Act:
First and foremost, our opponents stuffed some abandoned overalls and gunny sacks with straw, and painted across the bosoms of the scarecrows the magic word “homesteader.”
They would have homesteaded the Mojave Desert, all the mountain-tops, and the alkali flats with “splendid, sturdy American tillers of the soil.…”
The discussion brought out the theory that Uncle Sam, in so far as he is a landowner, is a most malicious malefactor, and, in so far as he seeks to control his property in the public interest, the pillory stocks and whipping-post are too good for him.58
Especially in a Congress thoroughly under the spell of homesteading, Kent was one of the very few people to allow such a statement to go on the public record, although he was simply articulating in an angrier manner what ranchers had long contended of the homesteading policy: that the homestead laws were not successfully transferring the public lands into small homesteaders’ hands. His lively reaction is important because he provided a devastating critique of the discourse that revolved around the figure of “the homesteader,” as opposed to simply criticizing Congress’s actual policymaking. At the same time, however, Kent was unable to provide or even have access to an alternative discourse about the public domain; like those who opposed government leasing, he too had defended his recommendations for federal range control by arguing that leasing would settle homebuilders more permanently on public lands. And Kent missed one important fact: by passing the Stock-Raising Homestead Act, Congress now accepted ranching—albeit on a small scale—as a legitimate occupation for settlers on the public domain. Although the hearings pitted the proponents of homesteading directly against proponents of leasing, these hearings highlighted just how close both sides had come in publicly expressing their support for “the little fellow.” The ANLSA had transformed itself from an organization that exalted its frontier exploits and business acumen into one that consistently supported the presence of both homebuilders and government administration on the range.
Although the stockmen appropriated the figure of the homesteader in support of their interests, this strategy turned out not to be politically expedient. The ANLSA did not get the leasing bill that it had been seeking since 1900, and had to wait until 1934 to get the Taylor Grazing Act, by which time the association was quite ambivalent about federal grazing management. The significance of this discourse about the homesteader (p.57) therefore lies in its practical political applications. First, it played a role in shaping the organizational identity of politically active ranchers. It reconstituted their own image of the industry, shearing it of its nineteenth-century qualities. No longer was ranching an occupation just for virile, adventurous men; like agriculture, it would settle people and homes permanently on the land. The ANLSA’s very different relationship to the federal government than at the turn of the century went hand-in-hand with this changed image. The talk of homebuilding gave the ANLSA and Forest Service and USDA officials a language in common, helping create an alliance between a formerly frontier industry—now turned modern organization—and an active government agency. This alliance was hardly unusual in Progressive-era America, an era of organization in which businesses, manufacturers, farmers, and academics (to name just a few groups) joined together in associations, which then established ties with specific government agencies. In the case of the western cattle industry and the Forest Service, the ties involved an accord that government leasing of the range would best stabilize land use and make possible more permanent settlement.
“Never in the American past had so much been demanded in the name of so many whom so few could locate,” Robert Wiebe observes of the Progressive concept of “the people,” and much the same might be said of these homebuilders.59 Indeed, whether the “bona fide settler” existed ceased to be the important point. Rather, he was, for want of a better metaphor, the frame that shaped the view of the public lands for all the participants in these political debates. This framing had political, cultural, and legal significance. It helped create a public alliance between the ANLSA and the Forest Service, permitted ranchers to be popularly seen as potentially legitimate settlers in the West, and contributed to the passage of the expanded homestead acts between 1900 and 1916, which conversely also reinforced it.
The public grazing lands—both in the national forests and on the unreserved public domain—made up an enormous amount of property owned by the United States; vast as it was, vast beyond most people’s comprehension, it nonetheless was tangible to the people most interested in settling the public land question. It was, to draw on the property theorist Carol Rose’s work, property that people saw, and through their sight, it was property about which people developed certain stories. Its general aridity, its grasses, its contours—all these things went into how people saw and envisioned the future of those lands. But as Rose also reminds us, “seeing property…reflects some of the cultural (p.58) limitations on imagination. Different people see the signals of the surroundings through very different imaginative lenses, and they put those signals together in different property stories.”60 And it is important to pause here to explore what meaning those different visions, those different stories, had and the foundation they laid for the institutional future of the public grazing lands.61
When ranchers, politicians, and bureaucrats looked at the public domain in 1900, what they saw was failure all around: first, a market failure (the land had not been divided into privately owned parcels, and therefore was not able to circulate and assume value through the market); second, a social failure (there was still no clear sense of whether a permanent population had been established on those vast lands); and, finally, a legal failure (these lands existed in a gray area of statutory authority, where the government chose to exercise very little police power, but technically only allowed grazing by “sufferance.”) To these, one might also have added a political failure, as they caused constant political tension with no foreseeable road to resolution. When ranchers, bureaucrats, and legislators tried to envision the future, to envision the resolution of all these failures, they imagined both similar and different pictures. All three groups imagined that property rights had to be established for that land. When ranchers envisioned their future on the range, for instance, they imagined a legal structure that would provide them with secure and exclusive access to particular lands. Whether they imagined metaphoric or real fences bounding off these rights is unclear, but they saw the public domain as a land divided among individual ranchers who had legally enforceable rights to specific parts of the range.
But if the three groups shared a general vision of private property rights ruling the range, one vision alone was politically and culturally dominant at the turn of the century, and that was of the settler, “who goes into the wilderness to carve out a habitation and a support for himself and his family.” As a group of anti-conservationists wrote in 1907, on the occasion of holding a convention showcasing their views, “In the administration of our public laws and in the making of new laws it must never be forgotten that the bona fide homestead settler is the central figure around which the public land system is and should continue to be maintained.”62 It was through the homesteader and the homestead that politicians saw the public domain, and that is just one of several reasons why the forest withdrawals had produced such a volatile backlash: of course, timber magnates wanted access to the forests, and of course, (p.59) many ranchers wanted continued free use of that land for grazing. But it was not simply the political influence of powerful economic interests that shaped congressional politics. To reserve such areas, to make them unavailable for settlers, also went deeply against what many people—especially many westerners—had imagined that land would look like and be used for.63
Given the context of agrarianism in the early twentieth century, as well as the political activity around expanding the homestead act, the range of political discussion about the public domain came down to that one sight—to what had really become a metaphor—the homebuilder attached to a specific piece of land. From our standpoint today, one can imagine other visions, such as of a group of small ranchers successfully cooperating around a commons. But this alternative was simply not available to legislators in the Progressive years. The imperative was to transfer the public domain into small parcels of privately held land. I would argue, however, that that picture of the homebuilder, so absolutely dominant in the public land question, was appropriated to signify something else. That is, ranchers and land managers in Roosevelt’s conservation program used the image of the homebuilder to articulate a different institutionalization of property in the West. Compared to the politicians who supported expanded homesteading, these men used “different imaginative lenses” when they looked at the public lands; they kept the ever popular homesteader as “the central figure” of that vision, but instead of attaching him simply to a privately owned parcel of land, they also attached him to leased land, and specifically, to land owned by the United States. In other words, they used the same picture as congressional partisans of homesteading did, but they used it to tell a different story: a story where the government did not go away, as it did in the homesteading tale, or more generally as it did in the classic story of the creation of property rights, but where it stayed to adjudicate and secure the rights of ranchers, large and small.
And that story began to stick. If ranchers and land managers were politically unsuccessful in getting a leasing bill passed, they were eventually successful in changing politicians’ “imaginative lenses” for western public land use. What may seem surprising to us, given the degree of public animosity between ranchers and federal land managers today, is that the ANLSA leaders and conservation officials told this story together, for they had become allies in the fight against an expanded homesteading act. But while they agreed on the broad outlines of this “story” of property—that ranchers could be legitimate homebuilders while using government (p.60) land—there were also disagreements over the specifics in the story that would explode in later years. First, ranchers and Forest Service officials were working out the very structures of their property relations during these years. Although the ANLSA leaders supported leasing the public domain and lobbied to have the Forest Service take it over, what the Forest Service was actually doing in the national forests was developing a permit system—a distinction with a great deal of difference. What ranchers had in mind when they imagined leasing was like leasing in the private market: a rancher would pay a given rent for a particular area of land and in exchange would acquire a fair degree of control over how to use that land. The permit system devised by the Forest Service, however, put the agency squarely between ranchers and the land. While it fully accepted and even encouraged grazing in the national forests, it also very quickly established a set of rules for its administration.64
For instance, the Forest Service had to decide who would be allowed to graze their animals in the forests, and here, the agency followed principles of occupation and priority rights. It would institute three classes of grazing permits, it stated in its first Use Book: Class A permittees would be those ranchers who had “adjacent property” to the reserves; Class B permittees would be those ranchers who owned property, but not adjacent to the forests, and who had used those ranges in the past; and Class C permittees would include those “transient herders” who owned no property at all. Typically in most forests, the demand on the reserves was so great that only Class A and Class B permits were issued. And if this system weeded out the “tramp herdsman,” it also institutionalized the notion of “commensurate property,” of which we saw an inkling in chapter 1: that is, the Forest Service now stipulated that the greatest priority would be given to those ranchers who owned enough private land to support their animals when they were not on the forest ranges.65 The rule of “commensurate property” would guide grazing policy for the rest of this century, and we shall therefore examine it in much greater detail in later chapters. It should be noted here, however, that while the leaders of the ANLSA, and, to some degree, of the NWGA, accepted the principle as a basis for management, ranchers would lock horns with grazing administrators over what constituted “commensurability”; and while the principle encouraged livestock owners to take care of their animals, especially in the winter, it also tied ranchers’ allotments in the forests to their own property. This connection between ranchers’ private and public land had enormous ramifications. (p.61) First, ranchers conceived of the public land they used as part of their entire operation and increasingly folded the public grazing land into their notions of their private property. Second, from the start the grazing permits had a property value, as the Forest Service allowed them to be transferred from one rancher to another along with the sale of the commensurate property. Often the grazing privilege would increase the value of the base land substantially, and it would not be long before bankers, in issuing loans, privileged those ranchers who had permits to graze their animals in the national forests.66
Those ranchers who made it into the forests were happy enough to get permits. But the Forest Service also intended to manage the use of that land. Forest supervisors had the power to determine both how many animals ranchers could graze on their allotments and when those animals should be put on and taken off those ranges. In doing so, the service set both a “protective limit” on the number of animals in the allotment—that is, the minimum necessary for a permittee to stay financially afloat—and a “maximum limit” of animals that any one owner could graze. As the Forest Service’s administration got off the ground, many ranchers found their numbers being reduced to their protective limit, especially as the agency made it a policy to allow room for small ranchers on the forests.67 Other contentious issues remained, as well, such as how long the ranchers could securely hold grazing permits and how much they would pay for that privilege.
From the ANLSA’s perspective, the matter of grazing fees was relatively unconflicted in the beginning. Soon after Pinchot decided to institute a fee in 1906, the association passed a resolution approving it.68 But the association’s views did not represent those of all ranchers. Many, in fact, saw the fee as a wedge that would drive small ranchers out of the forests, a prospect that stood in contrast to the Forest Service’s stated goals of encouraging the homebuilder. Other westerners thought likewise. The 1907 Public Land Convention, which convened largely anticonservationist westerners, railed against the fee, seeing it as a tax, as the first link in a chain that would bind ranchers to the federal government as tenants, and as the government’s attempt to gain commercial value from the range. That the Forest Service had the authority to implement fees, as well as even to arrest people who violated its regulations, set the stage for a never-ending struggle over what this property meant—what sets of rights it conferred on the ranchers who used it and on the government who administered it.
But what rights did the government have? What was the relationship (p.62) of the government to that land, now that that the national forests had largely been excluded from settlement? These questions were as troublesome to answer as were those about the rights of ranchers to public grazing in the national forests. Gifford Pinchot, for one, was quite clear about the rights that the government garnered in public land management. Years later in his autobiography, he commented bluntly on what powers were granted to the Forest Service after the transfer of the forests to the Agriculture Department. “Before the transfer,” he noted, “we were limited to peaceful penetration.…After the transfer the situation was radically changed. While we could still say nothing but ‘Please’ to private forest owners, on the national Forest Reserves we could say, and we did say, ‘Do this,’ and ‘Don’t do that.’ We had the power, as we had the duty, to protect the Reserves for the use of the people.”69 Pinchot clearly saw his power as constituting the means for discharging his public duty. But he also articulated, if unwittingly, that the Forest Service now stood in a very different relationship to the property of the United States.
It is important to put this power in perspective, because the federal government was saying “Do this” and “Don’t do that” to more people and corporations than ever before, and with greater frequency. Starting with interstate commerce, Washington had by Roosevelt’s administration taken on a limited number of regulatory functions over property, as had the states themselves; American government, in other words, was now involved in negotiating the limits of private property. Just as Pinchot had gone to Europe to study forest practices there, young Progressive economists traveled across the Atlantic, and particularly to Germany, to imbibe the ideas of European economic theorists, who sharply criticized America’s weak state and laissez-faire policies. Although these men returned, also like Pinchot, hoping to avoid the dominating state presence found in Germany, they were intent on asserting public authority over certain forms of private property. And their ideas did not float in a vacuum on their home shores. Throughout the last decade of the nineteenth century, the most important political questions at both the state and national levels concerned the degree to which government should become involved in the economic and social transformations set in motion by the phenomenal growth of industry. By Roosevelt’s administration, federal regulatory power over property was still limited, when compared, for example, with the New Deal, but it was certainly present and certainly a focus of conflict. If such bodies as the Interstate Commerce Commission did not have much bite to them, the (p.63) Progressive-era interest in such regulatory bodies in general signaled the prevalent political concern with distinguishing property imbued with public interest from that which was merely private.70 But for Pinchot, a fundamental claim of private property served as the foundation for the regulatory functions of the Forest Service. That foundation not only protected the public interest, Pinchot realized, but bolstered the government’s proprietary interest in the national forests.
How did this transformation happen? The answers lie in both specific legal texts and a more general reading of the political and cultural atmosphere at the time. In the most important Progressive-era case relating to Forest Service grazing land, Light v. United States (1911), the court upheld the government’s authority to establish rules and regulations for the forest reserves.71 The case involved a Colorado cattle owner named Fred Light who had turned 500 cattle out to range on the unreserved public domain. The cattle ended up, however, on the nearby Holy Cross Forest Reserve, and the Forest Service charged that, in fact, Light had known full well that they would graze on the reserve and that this constituted trespass on U.S. property, because Light had no permit to graze his cattle there and did not intend to get one. Light’s lawyers argued that “[t]he Government holds title to public lands, not as sovereign, but as a proprietor merely,” meaning that the United States’s use of these lands was subject to the police power of the state of Colorado. Under Colorado’s fencing law, which, like other fencing laws in the West, privileged open range grazing, individuals had to fence their property if they wanted to collect damages from stray cattle; and likewise, the lawyers argued, the United States ought to have fenced its reserve if it were to recover damages from Light. The court’s decision dismantled this last argument, however, noting that, even if it were incumbent on land owners to put up fencing to keep out stray cattle, this did not mean that the Colorado fencing law authorized intentional trespassing.
But of more interest to our narrative is how the Court answered Light’s claim that the United States was “a proprietor merely.” Quoting from an earlier case, Camfield v. United States (1897), the court agreed with the metaphor of individual proprietorship: “The Government has with respect to its own land the rights of an ordinary proprietor to maintain its possession and prosecute trespassers. It may deal with such lands precisely as an ordinary individual may deal with his farming property.”72 It was a neat analogy, except there were complicated layers to it. First, the United States does not hold an actual title to the land, in the same way that an individual owner of land would gain title to land. The (p.64) closest approximation to a title can be found in the treaties that authorized the United States to buy or gain control over the land, as well as the land cessions by seven of the original thirteen states after the Revolutionary War. More difficult still, however, is that technically the public lands belong to the United States as a whole. Congress acts loosely as the trustee for the people in legislating for those lands, and this includes delegating administrative powers over the public lands to the executive branch.73 Indeed, right before the decision in Light, the Supreme Court decided in a case involving California sheep owners that it was constitutional for Congress to delegate power to the Department of Agriculture to set rules for the forest reserves. While acknowledging that it was “difficult to define the line which separates legislative power to make laws, from administrative authority to make regulations,” Justice Joseph Lamar argued in Grimaud v. United States that the acts that established the forest reserves achieved the latter.74 One final problem was that the reserves also lay in a kind of netherworld of property: they were public property, but did “public” refer to the rights of all American people or to the rights of the federal government to manage that property as a “public trust”?75 Clearly, in Light v. United States the latter interpretation held, as it would fairly consistently in Supreme Court decisions.76
The “public” largely meant the government, which was not only analogous to a private proprietor; it was also, in the court’s decision, simply sovereign. Its authority over the forest reserves trumped that of the state. Yet this begged the question, where did the federal government get this authority? The Constitution seemed explicit on this issue, because it states that “Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or the property belonging to the United States.”77 But two things are evident in Light v. United States that call into question the strength of this claim. First, the court admitted that “the full scope of this paragraph has never been definitely settled,” although it accepted that this was “a grant of power to the United States of control over its property.”78 But while this was a constitutional grant of power, one could also argue that the argument about sovereignty and the argument, by analogy, about property—that the United States could administer these lands because it owned them, like an individual proprietor—collapsed into each other. Proprietorship, which entailed an individual’s sovereignty over the land he or she owned, and sovereignty, which entailed the state’s rule over its territory, looked very much like each other.
(p.65) This point would not have come as a surprise to Morris Cohen, who wrote a groundbreaking essay in 1927 on “Property and Sovereignty.” While property and sovereignty have traditionally been studied as separate categories of law, Cohen notes, the distinction is a false one because property accords to the owner certain degrees of power over other people: a property right “is always against one or more individuals,” and ultimately gives the owner of the property “the right to exclude others.” That power is inherently a political power, Cohen argues, and therefore justifies the intervention of government to regulate property as it sees fit to maintain the welfare of society. In Cohen’s mind, then, property is sovereignty.79 But in the case of the public lands, was sovereignty property? Did the sovereignty of the government over these lands rest on its ownership of them?
On the one hand, this proposition seems, on the surface, patently wrong. The sovereignty of the United States government lies in the consent of the people, not in its owning property. And in writing the Light v. United States decision for the court, Justice Lamar was careful to note that the United States could not “hold property as a monarch may for private or personal purposes.”80 On the other hand, the issue of the national forests dramatically called into question the classic liberal view, stemming back to Locke, that the role of the government is largely to protect private property and not to encroach upon property rights. Even if this is not wholly accurate, given that the rights of property ownership have been restricted in all sorts of ways by the U.S. government, the starting point of this argument envisions the government as divesting itself of property. And to say that the government’s sovereignty over the public lands derives fundamentally from its owning them is merely to underscore what a number of property theorists, Cohen included, have argued—that owning property confers upon the owner a political sovereignty over that property; that property is itself a political relationship between the owner and other people. Again, this is not to say that all private property confers unlimited rights on the owner to use that property however he or she wishes, because government has always imposed certain limits on property use. But what is so striking about the case of the Forest Service is that the government had the power to make regulations and establish limits over its own property rights. And with that power came a narrowing notion of property ownership in the public lands. Light v. United States gave the Forest Service a wide range of powers to make regulations for its lands, and it would also provide the (p.66) opening for the government to see itself increasingly as the proprietor of the national forests, to make claims on the public lands as an owner of private land would.
This shift would become more important to the public land debates after World War I, but it is important here for this reason: just when the government came to see itself as analogous to a private property owner, ranchers and bureaucrats were also reenvisioning the property relations of the range. Although expanded homesteading continued to be the popular political answer to the problem of disposing of public domain land, proponents of leasing had used the “homebuilder” construct to reimagine the range as a place where ranchers would stake out their private claims to land, claims that depended on grazing animals on the public range. The Forest Service was the first experiment to adjudicate and negotiate the competing claims of ranchers to public lands, and this experiment involved ranchers and federal bureaucrats in creating a new institution for property rights in the West. It was, of course, not outside the institutions of private property in the United States, but fully enclosed within them, for the terms of private property ownership informed all sides of the public land question, and therein lay the problem: at every level, the expansion of federal authority over the public lands was structured and given meaning by property ownership. By World War I, ranchers saw their use of those lands through their private real estate; that private real estate, in turn, served as the institutional foundation for their access to public lands; those public lands were owned by a government, whose ownership was understood to be like that of an individual. After the war, these competing private claims on the public lands would come into explosive conflict and once again change the politics of the western range.
(1) Sam Cowan, Proceedings, 1907, 96–97
(2) Charles E. Ball, Building the Beef Industry: A Century of Commitment (Denver: National Cattlemen’s Foundation, 1998), 42
(3) Proceedings, 1916, 32
(4) A. E. de Ricqles in U.S. Congress, House, Committee on Public Lands, A Bill to Provide for the Disposition of Grazing Lands under the Homestead Laws and for Other Purposes, Hearings on H.R. 9582 and H.R. 10539, 63d Cong., 2d sess., pt. 1 (1914), 253 (hereafter cited as Hearings on H.R. 9582 and H.R. 10539)
(5) . Stanford Layton has argued that the country life movement and the back-to-the-land movement formed a kind of “matrix” from which the early twentieth-century homesteading acts emerged. To No Privileged Class: The Rationalization of Homesteading and Rural Life in the Early Twentieth-Century West (Provo, Utah: Brigham Young University, Charles Redd Center for Western Studies, 1988). On the country life movement itself, see David Danbom, The Resisted Revolution: Urban America and the Industrialization of Agriculture, 1900–1930 (Ames: Iowa State University Press, 1979). On the Country Life Commission, which Roosevelt appointed, see U.S. Congress, Senate, Report of the United States Country Life Commission, 60th Cong., 2d sess., Senate Doc. 705 (1909).
(6) David Emmons, Garden in the Grasslands: Boomer Literature of the Central Great Plains (Lincoln: University of Nebraska Press, 1971), 188
(7) . William E. Smythe, The Conquest of Arid America (New York: Harper & Bros., 1900), 9. Patricia Nelson Limerick has characterized Smythe’s vision of irrigation in the following way: “Most people fail to see transcendent meaning in irrigated agriculture, but the idea came easily to William Ellsworth Smythe.…The experience of watching farms wither from lack of rain, while water flowed in untapped streams, changed the direction of Smythe’s life. He converted (p.221) to reclamation.” Limerick, The Legacy of Conquest: The Unbroken Past of the American West (New York: Norton, 1987), 135.
(8) Mary Wilma Hargreaves, Dry Farming in the Northern Great Plains, 1900–1925 (Cambridge, Mass.: Harvard University Press, 1957)
(9) Alva Adams, Sixth Annual International Dry Farming Congress, 1911, 57
(11) . Edward Everett Dale, The Range Cattle Industry: Ranching on the Great Plains from 1865 to 1925 (1930; repr., Norman: University of Oklahoma Press, 1960), 176.
(12) Danbom, Resisted Revolution, 22
(13) E. Louise Peffer, The Closing of the Public Domain: Disposal and Reservation Policies, 1900–1950 (Stanford, Calif.: Stanford University Press, 1951), 141
(14) Paul Gates writes (The History of Public Land Law Development [Washington, D.C.: Zenger Publishing Co., 1968], 489)
(15) Proceedings, 1905
(16) Peffer, Closing of the Public Domain, 47
(17) Report of the Public Lands Commission, 58th Cong., 3d sess., Senate doc. no. 189, (1905), 18
(22) . Samuel Hays, Conservation and the Gospel of Efficiency: The Progressive Conservation Movement (1959; repr., New York: Atheneum, 1980), 55.
(23) “Grazing on National Forests and the Public Domain,” Proceedings, 1926, 51)
(p.222) (24) William D. Rowley, U.S. Forest Service Grazing and Rangelands: A History (College Station: Texas A&M University Press, 1985), 36–37
(25) Pinchot wrote years later, “I hate a sheep, and the smell of a sheep.…Yet I recognize (with regret) that sheep are necessary, and (with satisfaction) that good handling can make and keep them harmless.” Breaking New Ground (New York: Harcourt, Brace, 1947), 270
(27) Pinchot, Breaking New Ground, 177–78
(29) . The most prominent stockman, in addition to Potter, who joined the Forest Service was Will C. Barnes, who had managed the Esperanza Cattle Co. in Arizona. Barnes was devoted both to the cause of the service and to western cattlemen, and was a prolific contributor to the ANLSA’s trade journal, the Producer.
(30) . Although the National Wool Growers Association was generally skeptical of Forest Service policy in the Progressive period, its trade association journal, the National Wool Grower (hereafter cited as NWG), often featured articles by Forest Service personnel. As just a sample, see C. S. Chapman, “Range Development and Improvement on National Forests,” NWG, May 1911, 22–24, and articles by Potter himself: “Relation of Forest to Flockmaster,” NWG, January 1912, 19–21, and “Co-operation in Range Management,” NWG, January 1913, 15–17.
(31) John C. MacKay, Proceedings, 1900, 273
(32) Morton Keller, Regulating a New Economy: Public Policy and Economic Change in America, 1900–1933 (Cambridge, Mass.: Harvard University Press, 1990), 150
(33) Proceedings, 1905, 325–26
(35) Proceedings, 1903, 250
(36) . Proceedings, 1900, 202–3, 302. Or, as another speaker put it baldly in 1907: “You fellows don’t care about the settler, except that you are going to become one yourself on a piece of land you have got your eye on. There is no use to mince words, and make false pretenses. What you want is to get as much grass for your stock as you can.” Proceedings, 1907, 97.
(37) Proceedings, 1900, 300–301
(38) Proceedings, 1915, 8–9
(39) Proceedings, 1900, 270
(40) Proceedings of the Public Land Convention (Denver: Press of the Western Newspaper Union, 1907), 55 (p.223)
(41) Proceedings, 1905, 295–96
(42) Proceedings, 1903, 141
(43) Proceedings, 1900, 304
(44) . Hearings on H.R. 9582 and H.R. 10539, 437.
(45) Proceedings, 1908, 86
(47) Proceedings, 1908, 58)
(48) Proceedings, 1904, 243–44
(49) Peffer, Closing of the Public Domain, 65, 97
(50) Public Land Convention, 136–37
(51) Theodore Roosevelt, “Annual Message to Congress,” 1907, in Documents in American History, ed. Henry Steele Commager, 7th ed. (New York, 1963), 50
(52) Proceedings, 1908, 50–51
(53) . Hearings on H.R. 9582 and H.R. 10539, 135.
(55) . Hearings on H.R. 9582 and H.R. 10539, 152. Perhaps one of the most ludicrous moments of the hearings came when Congressman John Raker of California, who was a tireless defender of the homesteader, pressed leasing supporter J. B. Killian about his knowledge of land tenure and human history. Raker was concerned that if ranchers were allowed to lease government land, they would also be allowed to fence it, which would discourage homesteading. “Do you know,” he asked Killian, “from your examination from the beginning of history down to the present time of any place or any condition where men have been permitted to inclose [sic] their land” and other men were then able to “establish homes or mining camps” on them? Clearly stymied, Killian answered, “Well—”; at which point Congressman Charles Thomson of Illinois rescued him by asking, “Is this B.C. or anno Domini?” (124).
(58) . Proceedings, 1915, 57. On William Kent’s progressivism, see Anne Hyde, “William Kent: The Puzzle of Progressive Conservationists,” in California Progressivism Revisited, ed. William Deverell and Tom Sitton (Berkeley and Los Angeles: University of California Press, 1994), 34–56.
(59) . Robert H. Wiebe, Businessmen and Reform: A Study of the Progressive Movement (Cambridge, Mass.: Harvard University Press, 1962), 179. “If one were to read the pages of the Congressional Record he would find there more (p.224) words uttered in behalf of the homesteader within the National Forests than in behalf of any other class of our citizens,” the National Wool Grower editorialized at the height of the debate over how to admit homesteaders to the national forests (“Homesteading the Forests,” NWG, February 1913, 28).
(60) Carol Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership (Boulder, Colo.: Westview Press, 1994), 296–97
(61) Property: Mainstream and Critical Positions, ed. C. B. Macpherson, (Toronto: University of Toronto Press, 1978), 1
(62) Public Land Convention, 11
(63) Joseph Singer writes (The Edges of the Field: Lessons on the Obligations of Ownership [Boston: Beacon Press, 2000], 26)
(64) Rowley, U.S. Forest Service Grazing, 59
(68) Proceedings, 1907, 100
(69) Breaking New Ground, 259
(70) Rodgers, Atlantic Crossings, 95–111
(71) . 220 U.S. 523–38 (1911).
(72) Camfield v. United States, 167 U.S. 524 (1897)
(73) . I say “loosely” because the language of trusteeship is very different from that used in establishing policy for the state trust lands, also known as the “school lands.” These were lands granted to the states upon their admission to the United States. As Jon Souder and Sally Fairfax write, these lands, “in combination with the revenues and permanent funds they produce, are generally viewed as a trust; hence, trust land managers approach their management responsibilities under the same array of rules and enforcement mechanisms that surround any trustee, such as a banker managing funds for a client’s grand-child.” This arrangement, they argue, provides a much stricter set of guidelines for managing state lands than the principles established for managing public (p.225) land use. Souder and Fairfax, State Trust Lands: History, Management, and Sustainable Use (Lawrence: University Press of Kansas, 1996), 1. Moreover, there is a stricter interpretation of trusteeship to be found in the public trust doctrine, which has long been used by states to protect tidelands and submerged lands for certain public uses, such as navigation and fishing. The public trust doctrine is a unique legal principle that binds the states’ regulatory authority with property. “[B]ecause the public trust doctrine is fundamentally a property-or ownership-based doctrine, a state’s authority under the public trust doctrine is not limited to the power to regulate but also includes the power to protect the state’s fundamental rights in its property, and the rights of all members of the public to use such property, even when the property has been conveyed into private ownership,” Jack H. Archer et al. observe in The Public Trust Doctrine and the Management of America’s Coasts (Amherst: University of Massachusetts Press, 1994), 4. Carol Rose also discusses the public trust doctrine in Property and Persuasion, 111–16, where she describes it as a “strong” doctrine for protecting public property, compared to “weak” doctrines that emerged from the public’s customary use of certain properties.
(74) United States v. Grimaud, 220 U.S. 517 (1911)
(75) . Rose, Property and Persuasion, 121–22; Property, ed. Macpherson, 4–6.
(76) . The decision quotes from United States v. Trinidad Coal Co., 137 U.S. 160: “All the public lands of the nation are held in trust for the people of the whole country.” It goes on: “And it is not for the courts to say how that trust shall be administered. That is for Congress to determine” (220 U.S. 537). One of the reasons this is complicated is that the only other place in the Constitution that mentions federal property is in Article I, which gives “‘exclusive’ federal jurisdiction over the District of Columbia and other places for government if the states agree to cede jurisdiction.” George Cameron Coggins and Robert L. Glicksman, “Power, Procedure, and Policy in Public Lands and Resources Law,” Natural Resources and Environment 10 (Summer 1995): 3.
(77) . U.S. Constitution, Article IV, section 3, clause 2.
(78) . Light v. United States, 536–37; Kansas v. Colorado, 206 U.S. 89.
(79) . Morris Cohen, “Property and Sovereignty,” in Property, ed. Macpherson, 159. Cohen’s piece was originally given at the Cornell Law School and was reprinted in Cornell Law Quarterly 13 (1927). As for the ingrained distinction between the two, Cohen writes that “[s]overeignty is a concept of political or public law and property belongs to civil or private law.”
(80) Van Brocklin v. Tennessee, 117 U.S. 158