those other states the public domain lands originally
held in trust by the federal government had become the
property of homesteaders and settlers and so, in the
natural course of events, had moved onto the state tax
Arid Nevada, though, had presented Congress
with a unique situation. And because Congress had never
faced up to it, settlement of the public domain lands had
lagged in the state.
The fact was, the only way settlers could make
a living on most of the land within Nevada borders was by
running cattle on huge plots of the arid rangeland --
plots much larger than the 160-acre parcels which had
been sufficient for the settlement of the East and the
So the need for a federal range settlement law
allowing for stockmen was widely recognized. Presidents
Ulysses S. Grant and Rutherford B. Hayes had proposed
such land use legislation, as had John Wesley Powell,
director of the U.S. Geological Survey from 1881 to 1894.
For example, Powell, in his landmark study Report
on the Lands of the Arid Region of the United States had
argued that Congress should recognize the circumstances
of the desert West and allow much larger homesteads ---
ranch units four miles square, or 2,560 acres.
But Congress, during the entire quarter of a
century following Nevada statehood, had never complied --
in large part because of active lobbying by the nation's
newly powerful Northeast capitalists.
Like the new class of bureaucrats in the
Department of the Interior, the new financiers of the
Northeast had a vested interest in retarding the
privatization of the West. Just as liberal homesteading
of the West would mean a quick end to the privileges and
sinecures of Land Office bureaucrats (detailed
here last week), it would also take the immense
natural resource base that was the West out of the grasp
of the politically dominant Northeast capitalists. So the
Department of Interior and America's money-center
financiers worked hand in glove through Congress for a
quarter-century to stave off privatization of the West.
They were aided, notes historian Richard
Bensel, by the full-scale depression of the 1880s, during
which harsh economic hardships suffered by the populace
east of the Mississippi were being blamed on 'cheap
production' from the West.
"The public believed it," writes
Hage, "and the Eastern capitalists plundered the
West with little political interference from a Congress
and courts dominated by Eastern solons and judges."
A Wild Card
But suddenly in 1890, a wild card endangering
Eastern control was thrown on the table. The U.S. Supreme
Court -- in the landmark precedent case of Buford v.
Houtz -- opened another route through which ranchers
could pursue direct title to the western rangelands.
Not only did the decision recognize an implied
license for the settler-ranchers to use the public domain
lands for grazing purposes, but it also cited
long-standing practice plus earlier Congressional intent
to explicitly envision ranchers perfecting their title to
the land while grazing their stock upon the range.
"Although the record is silent,"
says Hage, "Buford v. Houtz must have sent a
wave of panic through the anti-western-growth
movement." He adds that, following the federal water
law of 1866, which had endorsed the West's prior
appropriation water rights doctrine, this new high court
action suggested the ranchers' full title in the range
was only a couple of steps away.
Now the Northeast began a vociferous attack --
expressed in legislative, litigative, and public
relations efforts -- against preemptive range rights and
prior appropriation water rights -- the 'first in time,
first in right' principle that had settled all the new
states after the original thirteen. Now that the same
process was in use out West, it suddenly had become
The Hypocritical East
There was immense hypocrisy and greed behind
the Eastern finger-wagging, many historians agree.
"The limitless antagonism of the East was
a truth," wrote Richard Lamm and Michael McCarthy in
The Angry West. "The exploitative impulse was
fact, not fancy, and paternalism, contempt, arrogance and
distrust were as commonplace as snow on a Utah
"The attitude was as old as the West and
East themselves. The West was suspect. It had always been
suspect. The East romanticized western life and history
and lionized its heroes, but only discreetly, from a
distance. All the while it saw it as a remote and
frightening world of political radicals, economic
misfits, and other fools cast out from
"All [the West] knew," said Lamm and
McCarthy, "all it experienced, was a scathing
contempt hurled at it from the Eastern shore, the
unstinting conviction that westerners were plunderers and
thieves and that if the public domain was to be saved,
the East would have to do it."
The attack on preemptive range rights and
prior appropriation water rights in the West -- an
attack, Hage notes, which continues still today, a
century later --- took the form in the late 1880s of a
largely successful effort by Northeastern industrial and
financial interests to redirect what had been, until
then, a troublesome forest preservation movement.
Those same Northern interests had reaped
enormous profits from clearcutting timber during and
after the Civil War --- first for charcoal for gunpowder,
and later to rebuild northeastern cities. Over the past
decade they had increasingly been beset by complaints
about the wholesale removal of, first, the white pine and
hardwood forests of the Atlantic, and then the
destruction of all forest resources east of the
Preservationists & The Trusts
Now those same eastern capitalists began
pouring money into the fledgling nature preservation
branch of the conservation movement, notes Hage,
following Bensel. "Railroad magnates such as Edward
H. Harriman doled out largesse --- including extensive
expense-paid expeditions --- to nature writers such as
John Burroughs and John Muir, the latter of whom
unwittingly helped Harriman obtain a monopoly of the
railroad route to Yosemite National Park.
Top of page
"Conservation-minded publisher Robert
Underwood Johnson of Century magazine helped set
the public agenda for nature preservation" as he
sought the support of powerful eastern capitalists like
George Vanderbilt, Clarence King, Alexander Agassiz and
Theodore Roosevelt, all of whom owned large western
cattle and mining operations, and several of which had
Johnson appears to have been instrumental in a
major piece of illegal "luck" that the
anti-Western forces enjoyed a year after the Supreme
Court decision. It would eventually mean the
extinguishing of Western ranchers' hope for full title in
What was illegal --- but successful -- was an
action by a House-Senate conference committee, on which
sat one William Steele Holman, and one Preston B. Plumb.
Holman, an Illinois Democrat, was a family
friend of Johnson's, and a man who Johnson frequently
lobbied, successfully, upon conservation issues. Plumb, a
Kansas Republican, had also been successfully lobbied by
As Harold K. Steen details in his 1976 book, The
U.S. Forest Service: A History, what is today called
the "Forest Reserve Act of 1891," when
originally passed by House and Senate, contained nothing
at all about forest reserves. The fatal Section 24,
giving Presidents the power to unilaterally withdraw from
the public domain forest reserves where settlers could
not enter, was added by conferees as a last minute rider
to a bill to repeal the Timber Culture Act of 1873.
Because that resulting provision was not
referred back to the originating Public Lands Committees
of either House or Senate, it was illegal under laws
governing the operation of the Congress. In the view of
many Constitutional scholars, it was also illegal because
the powers given the Presidency were not - under the
Constitution -- Congress's to give.
Holman, ranking Democrat on the House Public
Lands Committee at the time of the conference committee,
had been the committee's chairman three years before when
Democrats had controlled the House. That was when he had
introduced a bill, never passed, from which the infamous
Section 24 was copied in 1891.
"The bill went directly to a floor
vote," writes Hage, "and nearly every
commentator says that Congress passed this most important
law without being aware of its content."
Indeed, shortly before the Senate vote,
Preston Plumb, chairman of that body's Public Lands
committee, explicitly reassured one senator that it
would not do what it did!
Florida Senator Wilkinson Call had interrupted
the reading of the conference report, calling for the
conference version of the bill to "be printed so
that we might all understand it before acting upon
Plumb falsely assured Call that "there is
nothing in the report on any subject whatever that has
not already undergone the scrutiny of this body, and has
been passed by this body." In actuality, Section 24
had never before been seen by the U.S. Senate.
When Call, following the reading, asserted
"I shall not .. consent if I know it to [contain]
any proposition which prevents a single acre of the
public domain from being set apart and reserved for homes
for the people of the United States who shall live upon
and cultivate them," Plumb again falsely assured him
that was not the case.
"No bill has passed this body or any
other legislative body that more thoroughly consecrates
the public domain to actual settlers and home-owners than
does the bill in the report just read," said Plumb.
However, after President Benjamin Harrison
signed the bill, he immediately used it to permanently
exclude "actual settlers and home-owners" from
land near Yellowstone Park.
By just five years later, Harrison and the
next president, Grover Cleveland, had used the provision
to create reserves covering some 20 millions of acres-
much of it valuable grazing land upon which ranchers had
already established prior rights.
Blatant Anti-West Politics
Cleveland, especially, used the powers of
Section 24 to indulge blatant sectionalist and political
hostility against the West.
"In the early 1890s Cleveland's gold
policies had been savagely opposed by the pro-silver
West," write Lamm and McCarthy, "and western
antagonism, in part, cost him renomination in 1896. To a
great extent the proclamations were an act of political
revenge --- 'as outrageous an act of arbitrary power,'
said a Wyoming congressman, 'as a czar or sultan ever
Cleveland's 'Midnight Proclamations' were made
only ten days before he left office, and had been kept
secret from Westerners.
"Ten years later Roosevelt repeated the
same process," write McCarthy and Lamm.
"On a single shattering day in 1907 he
withdrew 17 million acres of timberland from entry in 21
new national forests in six western states. The action,
which sent shock waves across the West, preceded by a
matter of hours the enactment of a measure prohibiting
creation of future forest reserves without the consent of
"The effect was to tie up vast areas of
the public domain so that no one could settle them, cut
firewood or construction timber on them, hunt game on
them, mine minerals, or even build transportation roads
through them," says Hage.
The Forest Service Arrives
In 1897, six years after their illegal birth,
Congress finally passed measures to administer and fund
the federal forest reserves. In 1905, they were
transferred to a new bureaucracy in the U.S. Department
of Agriculture, the newly created Forest Service. In
1907, the reserves were renamed 'national forests.'
"The Forest Service would in many ways
become the in-house federal agency of the northeastern
money trusts in their fight against the ranching
community of the West," wrote Hage.
"The Forest Service would act to inhibit
economic development of the West and to insure continued
Eastern influence over the West's resource base."
Next week: Nine Decades of Abuse by the
Forest Service in Nevada