Early Oregon Land Law V
Bill Long 3/3/12
The Land Provision of the Territorial Act of August 14, 1848
Oregon became a Territory on August 14, 1848, even though news of that condition and official implementation of the Act enabling Territorial status didn't happen until 1849. The land provision appears in Sec. 14 of the Act, 9 Statutes at Large 329 (the law is on pp. 323-31). This essay will not only give that provision but will begin with some comments on method in the study of Oregon's early land law.
I. Comments on Method
If there is one virtue you need in understanding the evolution of Oregon's land laws and the eventual distribution of its land, it is patience. Patience is needed because you have a Provisional Government formed seven years before the act declaring how to divide up the land was passed by Congress. In that seven years hundreds of thousands, if not millions, of acres were claimed, and all of it had to be sorted out or claimed again when the federal act of September 1850, the Oregon Donation Land Claim Act, was passed. Then, you have the issue of Indian (as they were known at the time) claim to the land and, as law so inartlessly puts it, the "extinguishment" of the Indian claim, through herding them off to reservations in remote and (at the time) valueless land. Then, you have the great survey of the land, beginning in the Willamette Valley, in June 1851, which would divide into townships, ranges and sections, almost 240 of the most valuable farm townships in the Willamette Valley, stretching from Portland to Ashland. But even before all this 1850s action happened, you have a number of laws that should be understood, if only to see how they reflect the various issues that the people had to content with in making land laws. Most of the provisions in the first four statutes listed below will appear in some form in the "big" law--the federal Donation Land Claim Act of September 1850. Consider the following, then, a "dry run" or "first draft" of history.
Thus, we would first need to understand:
1. The land provision of the Oregon Provisional Government Organic Act of 1843. That provision, with comment, is here.
2. The revision/amendment of that provision on June 25, 1844, given here.
3. The further amendment of that provision on December 24, 1844, given here.
4. The completely rewritten Organic Act of the Provisional Government--this time July 5, 1843. I give the complete act here, while the land provision is here.
5. The land provision of "An Act to establish the Territorial Government of Oregon," cited above.
II. The Territorial Act Land Provision
Well, here it is. In Section 14 of the Act, after it meanders through hundreds of words on how the inhabitants of "said Territory" (i.e., Oregon) will be entitled to enjoy "all and singular" the "rights, privileges and advantages" granted to people of the US "northwest of the River Ohio" by the Northwest Ordinance of 1787; on how the existing laws of the provisional government (not capitalized) established by the people "shall continue to be valid and operative therein, so far as the same be not incompatible with the constitution of the United States, and the principles and provisions of this act.." we come to the crux of the provision:
"but all laws heretofore passed in such Territory making grants of land, or otherwise affecting or incumbering the title to lands, shall be, and are hereby declared to be, null and void; and the laws of the United States are hereby extended over, and declared to be in force in, said Territory, so far as the same, or any provision thereof, may be applicable."
III. Comment and Conclusion
That about says it all. All the hard work trying to articulate a land policy, all the grants given to people, all the hopes tied up with the lands, are now made "null and void." Surely this wasn't passed with the assumption that all the settlers would be thrown out of the land or would have their titles summarily and finally removed. Indeed, within 25 months the Donation Land Claim Act would be passed, and many of the features of earlier Oregon land law would be incorporated into that statute, but the DLC law wasn't perfect, and it needed three iterations in order for it to accomplish its purpose.
With the reality of land claims being "null and void" in 1848/1849, it was of paramount importance that Oregon elect a Congressional delegate in 1849 who would strongly represent their interests--especially on the land issue. Oregon voters decided on young attorney Samuel Royal Thurston (his birth date is variously given as 1815 or 1816), who came to Oregon in 1847, set up a legal practice in Hillsboro (Tuality District), and was elected to the Provisional Legislature in 1848. Thurston was the force behind the Oregon Donation Land Claim Act; an interesting discussion of the political wrangling in the Spring and Summer of 1850 in DC regarding possible provisions for the act is James Bergquist's 1957 article in the Oregon Historical Quarterly.
Thurston actually died on the ship California on April 6, 1851 on the way back from DC. He was returning in triumph, since he could justly claim that he was largely responsible for the law just enacted, the one which not only would shape Oregon's land future for the next decade but would be the forerunner and, in many ways, the model for the Homestead Act of 1862. Yet a personal vignette, related by Kay Atwood in her wonderful little book on Chaining Oregon (the story of the survey of the Willamette Meridien--Thurston was on the same ship as a few of the early surveyors who were coming to Oregon to implement the provisions of section 1 of the Donation Claim Land Act) gives us insight into this person. She writes:
"The passengers departed Panama for San Francisco on April 2 (1851) aboard the steamer California. As the overcrowded vessel neared Acapulco a week later, thirty-eight-year-old (sic--he was 35) Samuel Thurston, suddenly died. His fellow passengers were unaware of the severity of the Oregon delegate's illness because, as Thomas Nelson remarked somewhat uncharitably, he had 'exhibited so much impatience, petulance and..selfishness that no one believed that he was really sick until the day before his death..." (Chaining Oregon, 22).
So now, with Thurston's untimely death and that rich and vivid quotation in our mind, we are ready to begin our study of the Oregon Donation Land Claim Act.
Copyright © 2004-2009 William R. Long