Books

“We claim that the value of homesteading to the federal government always came from one key feature: homesteaders had to live on the land. When land was occupied, homes and barns were built, roads and stores arose, a certain type of development took place, and eventually population growth and cities made “going back” impossible. In the words of Justice Ginsburg, this would “…preclude the Tribe from rekindling embers of sovereignty that long ago grew cold.””

[W]hy would the state be interested in allowing homesteaders on these lands rather than cash entrants? An alternative policy might have been to hold the lands until land values increased to the point where cash entrants were willing to purchase them, and thus avoid the dissipation of rushing. [...] The answer is found in the signature characteristic of homesteading: occupation by actual settlers. Settler occupation disrupted tribal land uses, physical development, and infrastructure; it also created vested political interests in maintaining non-native settlement. These irreversible effects of settlement meant that even a future legal loss could only result in a payment to tribes, not the return of the land. This reduction of the tribal land base furthered federal efforts to continually diminish tribes’ sovereignty, which was inextricably linked to their ownership of the lands that comprised their territories (Carlos, Feir, and Redish 2022). By using homesteading to occupy these particular lands, any legal threats against dispossession became moot; any future court settlement effectively became a forced sale of the land. Thus, the federal state strategically allowed homesteading to continue in order to solidify the transfer of lands away from tribes. This strategy complemented the various political forces that wanted lands to remain in the hands of non-native settlers.