Category: Stories

Native people were able to acquire land from the public domain beginning in 1875 via the Indian Homestead Act. Those who abandoned tribal relations and were at least 21 years old could acquire a homestead on the public domain under the general land laws. An 1884 law eliminated the tribal severance requirement and extended the federal trust period from five to twenty-five years. These laws preceded the well-known General Allotment (Dawes) Act of 1887.

Kelsey considered the 1875 and 1884 laws “of little value.” Not until 1891 were allotting agents assigned to California. As Kelsey saw it, this meant that in California’s first forty years of statehood, its native people had “no practical way…to acquire title to land from the public domain” (“Mr. Kelsey’s Brief History of the California Indians” in Warren K. Moorehead, The American Indian in the United States, 333).

A quick search of the BLM General Land Office Records database (see header image) confirms the low use of the Indian Homestead Act in California. Searching the state for the two Indian homestead options–“Indian Homestead Fee Patent” and “Indian Homestead Trust”–in the authority picklist yields only a couple of pages of results, whereas the “Indian Allotment – General” option yields more than one hundred pages.  

The laws about acquiring public land are confusing, but as Kelsey recognized, they are essential to understanding how nearly all of California was taken from native people. Here’s my attempt to make sense of Indian homesteads and allotments on the public domain in California.

The Homestead Act of May 20, 1862 (12 Stat. 392) allowed settlers to apply for up to 160 acres of public land if they lived on it for five years and provided proof of cultivation. The land was free but there was a filing fee. A citizenship requirement excluded native people.

The Indian Homestead Act of March 3, 1875 (18 Stat. 420) extended the benefits of the Homestead Act to native people. The native homesteader followed the same procedures as a non-Indian homesteader, but title was placed in federal trust for five years. Indian homesteaders had to relinquish their tribal ties but could retain their share of tribal funds.

The amended Indian Homestead Act of July 4, 1884 (23 Stat. 96) eliminated the tribal severance requirement and filing fees. It also extended the federal trust period from five to twenty-five years.

Especially before 1887, the Indian Homestead Acts of 1875 and 1884 were used by nonreservation peoples around the country to remain on or near their homelands and maintain their culture beyond the reach of government officials. They included the Winnebagos (article by Nancy O. Lurie), Wisconsin Ho-Chunk (Angela Firkus), Northern Cheyenne (James R. Allison III), Spokane Indians/Deep Creek colony (John W. W. Mann), and Columbia River Indians (Andrew H. Fisher).

The General Allotment (Dawes) Act of February 8, 1887 (24 Stat. 388) made allotments to Indians from the public domain subject to the provisions governing allotments on Indian reservations. Section 4 of the act dealt with public domain allotments. Applicants had to register intent with a federal Indian agent and prove actual residence on the land but did not require proof of improvement. The land was held in trust for twenty-five years, though the length of the trust period changed with amendments.

Both the Indian Homestead Act and Section 4 of the Dawes Act allowed native people to acquire land on the public domain, and both were available over multiple decades beginning in 1887. Because the two laws had small differences, a well-informed applicant could choose the more favorable one. For example, after the Interior Department issued new regulations in 1918, allottees were limited to forty acres of irrigable land under the General Allotment Act. Historian Martha C. Knack described how Tim Hooper (Shoshone) wanted to file an allotment for 160 acres of irrigable land in Nevada, but the General Land Office directed him to file under the Indian Homestead Act instead because that act did not distinguish land qualities, thus allowing Hooper to file for the full 160 acres.

In acquiring land on the public domain, how were the Indian Homestead Act and General Allotment Act Section 4 different?

Eligibility was one difference. Under the General Allotment Act, only those who were “not residing upon a reservation, or for whose tribe no reservation has been provided” could apply for an allotment on the public domain. With few reservations in the state, most California Indians were eligible for a Section 4 allotment. However, a resident of the Hoopa reservation, for example, was not.

The Indian Homestead Act of 1884 was more liberal in its eligibility. “Such Indians as may now be located on public lands, or as may, under the direction of the Secretary of the Interior, or otherwise, hereafter so locate” could apply for a homestead. Because the law was blind to an individual’s reservation status, even a resident of the Hoopa reservation qualified for homesteading.

Another difference involved the application process (which changed over time; these comments focus on the early years). The General Land Office circular of 1877 outlined the early Indian homesteading procedure (see header image). One had to apply at the land office and provide affidavits of two witnesses, live on the land for five years, and then “prove up” at the land office with two witnesses. Initially the Indian Office was not involved, but by 1889 the instructions had changed to also require a “certificate from the agent of the tribe to which [the applicant] belongs.”

Regulations governing the application process for Dawes Act Section 4 allotments on the public domain were issued by the Interior Department on September 17, 1887. One had to apply at the land office and provide affidavits of either two witnesses or an Indian agent. The allottee did not need to prove up. Thus, allotments required less travel to the land office, less paperwork, and generally less bureaucracy.

How soon a trust patent was issued seems to be a third difference. As far as I can tell, an Indian homesteader only received a trust patent when he proved up five years after making entry. An allottee got a trust patent much sooner, after his allotment application was processed in Washington. The Indian homesteader’s five-year long road to a trust patent might have left his homestead less secure from whites ready to seize it and dispossess the homesteader or otherwise contest his entry before the trust patent was issued. The Indian Office’s annual reports from the 1890s note that such contests were not unusual, with Indian homesteaders (and allottees) not knowing how to defend title nor able to pay legal fees and thus losing their land. In many other cases Indian homesteaders did not prove up, so the land office canceled their entry and their land was lost. Of course, having a trust patent was hardly ironclad protection from encroachment.

Finally, a major difference involved the government’s investment in implementing the Dawes Act, which seems to have exploited unused funds set aside for Indian homesteads. Under the Act of March 3, 1891 (26 Stat. 989), the Interior Department was allowed to use the balance of the fund titled “Homesteads for Indians” to employ allotting agents dedicated to Section 4 allotment work. That year the Indian Office began sending allotting agents to California, where they churned out two thousand allotments on the public domain under Section 4 of the General Allotment Act before Kelsey began his California work.

So, Kelsey was substantially correct in writing that the Indian Homestead Act was little used in California because “the technical requirements were too onerous, no one was designated to see that Indians were assisted and few Indians ever heard of the Acts” (“Mr. Kelsey’s Brief History of the California Indians” in Warren K. Moorehead, The American Indian in the United States, 333).

In his 1906 report, Kelsey noted that 2,058 allotments had been made by allotting agents in California beginning in 1891. He could provide an exact number because separate books were maintained to track Indian allotment applications. Indian homestead applications were not tracked the same way. Instead, they were mixed in with all the other homestead entries in register books. Though lacking a precise number, Kelsey found few Indian homesteads in California.

Given the low number of Indian homesteads in California, perhaps it is no surprise that some were handled incorrectly. The Indian homestead patents in the BLM General Land Office Records database show various discrepancies and mistakes made by workers implementing the law.

For example, Charles Peterson is listed in the database as having received an Indian Homestead Fee Patent (12 Stat.392) to land in Fresno and Tulare Counties in 1871. How is this possible when the first Indian Homestead Act was not passed until 1875? I can only guess without access to Peterson’s land entry file at the National Archives. There was a provision allowing homesteads for the Stockbridge Munsee of Wisconsin in the 1865 appropriations act for the Indian Office (13 Stat. 562), and an Interior Department circular of April 1, 1870, allowed Indian homesteads on public lands until 1874, when the circular was rescinded and all such homesteads ordered to be cancelled. Neither of these seem to fit this situation. It may be that Peterson applied as a citizen who had dissolved his tribal relations and the land office accepted his status.

In 1920 John Campbell was issued a new patent for his land in Inyo County under the Act of March 3, 1875. It replaced his 1892 patent, which was “erroneously issued under the Act of July 4, 1884.” Citing the first Indian Homestead Act as the proper authority despite the second Indian Homestead Act being in effect is mystifying. Perhaps Campbell made his entry before July 4, 1884, so the 1875 law was the only law in effect and thus considered the valid authority.

In the 1890s, the patents of both Ulsha or Mack in Fresno County and Chico Jim in Plumas County were  “erroneously issued under the Act of January 18, 1881.” The 1881 act (21 Stat. 315) was a special act that applied only to the Winnebagos of Wisconsin. New patents citing the Indian Homestead Act of 1884 were issued to the two homesteaders in the 1910s, with the trust period running from the date of the erroneous patent.

The 1890 patent of William Wallupie in Amador County was “canceled because it erroneously issued under the Act of May 20, 1862.” This was the original homestead act for U.S. citizens. He received a new trust patent in 1911 under the Indian Homestead Act of 1884.

Two Paiutes with homesteads in Shasta County, Edna Button, heir of Billy Button, and Charley Green, were issued new patents on the same day in 1919. The new patents were issued “in lieu of one which the trust period has expired.”

As these examples show, administering the Indian Homestead Act was confusing for federal workers, who only occasionally dealt with the law and were probably unfamiliar with it. This would have made the homesteading process even more confusing and difficult for the native applicants the law was intended to benefit. The situation only worsened as more public land laws were enacted, including the laws governing homesteading in the burgeoning national forests in California.