This chapter explores the intersection between the rabid market for land in the early United States and the territories’ property pluralism—the existence of multiple, conflicting sources of rights to ownership. The chapter focuses on the debate over three particularly significant sources of title: purchases from Native nations; state land grants under the system of indiscriminate location; and occupancy, commonly known in early American law as preemption. The collision between these different sources with unclear validity made ownership in the territories highly uncertain and spawned conflict. The federal government attempted to reform territorial property, deeming some sources of title legitimate while barring others, but both formal and informal law hampered these federal efforts to produce clarity of ownership.
The failure of federal efforts to reform title meant that federal officials in the territories found themselves, unwillingly, adjudicating conflicting claims to ownership, often in ad hoc, unplanned fashion outside of courts. This chapter describes three sets of adjudications of territorial land rights. The first involved conflicting assertions of different Native nations to ownership, as federal officials, as part of their effort to “extinguish” Native title, had to decide which nation owned which land. The effort led them to try to understand Native land laws in an effort to parse these claims. The second required wading into the land rights of the French habitants of the Illinois Country, where territorial officials similarly attempted to understand past French land law to confirm preexisting claims to title. The third concerned veterans of the Revolutionary War, who were promised land in the U.S. Military District in the Northwest Territory. Frequently defrauded out of their rights, these holders of the so-called bounty lands appealed to the U.S. Secretary of War to protect their title. In all three cases, the result was that federal officials distilled the territories’ plural sources of ownership into a single federal title issued under federal authority. This decades’ worth of difficult and unheralded legal and administrative work became the foundation for the federal land system, especially when the Harrison Land Act of 1800 codified the resolution to long-standing heated debates about the public lands.
When criminal law and command failed, federal officials came to rely on federal finance to try to secure peace between Natives and U.S. citizens, as this chapter depicts. Both Native and white claimants demanded that the federal government compensate them for the violence they suffered at each others’ hands. Increasingly, the federal government did so, paying both Natives and whites for the constant murders, horse thefts, and abduction of enslaved human property that plagued both federal territories. Still more money went to the territories to satisfy Native leaders’ expectations for what federal officials called “presents” and to fund the expensive military “protection” that territorial citizens demanded. Federal officials reluctantly spent these increasingly large sums of money to secure the doubtful allegiances of these borderlands residents; their goal was to foster dependence on the federal government. Arguably, they failed. Native leaders espoused a gendered rhetoric of poverty and weakness, but they successfully extracted federal funds precisely because of their considerable power. Constitutionally, the territories were dependencies of the United States, but territorial citizens rejected any suggestion of subordination, demanding vast sums for militia actions—even when at odds with federal law—as part of the federal government’s obligation to protect its citizens. In the process, both sets of claimants relied on the federal government as the venue to make claims and redress grievances. But only Natives were tagged with the dependent label even as their white neighbors proved far more effective at extracting federal largesse, prefiguring later dynamics in the rise of the national welfare state.
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