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PUBLIC OPINION IS MORE THAN LAW POPULAR SOVEREIGNTY and VIGILANTISM in the NEBRASKA TERRITORY Sean M

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PUBLIC OPINION IS MORE THAN LAW POPULAR SOVEREIGNTY and VIGILANTISM in the NEBRASKA TERRITORY Sean M University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln Great Plains Quarterly Great Plains Studies, Center for Fall 2011 PUBLIC OPINION IS MORE THAN LAW POPULAR SOVEREIGNTY AND VIGILANTISM IN THE NEBRASKA TERRITORY Sean M. Kammer Lewis and Clark Law School Follow this and additional works at: http://digitalcommons.unl.edu/greatplainsquarterly Part of the American Studies Commons, Cultural History Commons, and the United States History Commons Kammer, Sean M., "PUBLIC OPINION IS MORE THAN LAW POPULAR SOVEREIGNTY AND VIGILANTISM IN THE NEBRASKA TERRITORY" (2011). Great Plains Quarterly. 2733. http://digitalcommons.unl.edu/greatplainsquarterly/2733 This Article is brought to you for free and open access by the Great Plains Studies, Center for at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Great Plains Quarterly by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. PUBLIC OPINION IS MORE THAN LAW POPULAR SOVEREIGNTY AND VIGILANTISM IN THE NEBRASKA TERRITORY SEAN M. KAMMER While debating Senator Stephen A. Douglas contrasted sharply with that of Douglas, who in the fall of 1858, Abraham Lincoln declared argued that the ultimate source of authority the principle of popular sovereignty, as applied was the will of the people, and that this author­ to the Kansas Territory, to be "nothing but a ity was unlimited. The morality of democracy, living, creeping lie from the time of its intro­ according to Douglas, lay not in any particular duction till today."l While Lincoln conceded result but in the process of decision making the right of majorities to rule and to shape itself.2 policy, he maintained that there were moral Four years earlier Douglas had made his limits to this right-a line beyond which dem­ notion of popular sovereignty the centerpiece ocratic majorities could not govern. This view of an amended bill providing for the creation of the Kansas and Nebraska Territories. It declared that the new territories, when admit­ ted as states, "shall be received into the Union with or without slavery, as their constitution may prescribe at the time of the admission."3 Key Words: Bleeding Kansas, claim clubs, Omaha, Predictably, debate over the bill exacerbated squatters, violence sectional tensions over the slavery issue. Because the act potentially allowed for the Sean Kammer is a visiting assistant professor of expansion of that institution into new ter­ environmental and natural resources law at Lewis and ritories, most Southern members of Congress Clark Law School. He is a PhD candidate in American embraced the bill's central principle of popular history at the University of Nebraska-Lincoln. His sovereignty. In contrast, most Northern mem­ dissertation examines the legal history of the land bers of Congress, including some Democrats, grant railroads and forest management in the Pacific Northwest during the first half of the twentieth century. opposed extending the principle to the slavery question. Senator Salmon P. Chase of Ohio demonstrated the seriousness of the perceived [GPQ 31 (Fall 2011): 309-241 stakes when he denounced Douglas's bill as 309 310 GREAT PLAINS QUARTERLY, FALL 2011 "an atrocious plot to exclude from a vast unoc­ frontier areas organized such groups to protect cupied region immigrants from the Old World, their claims to land, to ensure access to natural and free laborers from our own States, and con­ resources, and to assist members in securing vert it into a dreary region of despotism, inhab­ legal title to land.tO Like other vigilante groups, ited by masters and slaves."4 After months of claim clubs ruled through extralegal means intense debate, Congress finally passed the and based their legitimacy on the doctrine of Kansas-Nebraska Act on May 30, 1854, largely popular sovereignty. As scholar William E. along sectionallines.5 Burrows argued in Vigilante!, popular sover­ Over the next several years Kansas Territory eignty was a key intellectual foundation of "clas­ became "Bleeding Kansas" as violence erupted sic vigilantism" as well as "the most important between pros lavery and free-state factions. political element contributing to the vigilante While scholars continue to debate the true reaction."ll Popular sovereignty was attractive causes of the fighting in Kansas, there is a strong to settlers not only because it gave them the consensus that the conflict was fundamentally authority to act in their own best interests but shaped by the national political debate over the also because it was consistent with natural law's extension of slavery-if not by the slavery issue edict that each person had the right and the itself. James C. Malin and James A. Rawley, for responsibility to protect his own life and prop­ instance, while questioning slavery's central erty in the absence of other protection}2 role in causing the violence, recognized that Historians have debated the extent to which Kansas' symbolic importance in the national these vigilante groups represented certain political debate played an important role in features of American nationalism. Historian precipitating and shaping the conflict.6 More Frederick Jackson Turner, in The Frontier recently, Nicole Etcheson blamed the violence in American History, famously argued that on the failure of politicians to find a solu­ claim clubs were demonstrations of Western tion that would both satisfy the Southerners' democracy and its promotion of economic claims for equal treatment and guarantee equality and individual libertyP Similarly, in political rights to free-staters'? She character­ Vigilantism in America, Arnold Madison con­ ized Bleeding Kansas as a distortion of popular tended that the frontier tradition of vigilantism sovereignty through fraudulent elections and helped form many traits of modern America, violence.8 However, while the violence in including individuality, equality, and social, Kansas may have been unique in both its scope economic, and political mobility.14 Allan G. and the degree to which it influenced political Bogue, however, challenged these assessments. developments in the rest of the country, it was Looking at the possible inequities of claim-club not unique in its basic form. Indeed, by the activity, he found a pattern of clubs being orga­ mid-nineteenth century, the vigilante violence nized by speculators rather than by settlers, and that typified Bleeding Kansas had become a in many instances being used "against the best common feature of the American experience. interests of the very same settlers who have This phenomenon, most pronounced on the usually received credit for creating and operat­ so-called frontier, dated back even prior to the ing them."15 American Revolution, when residents of the Despite considerable scholarly work on South Carolina and Virginia backcountries Bleeding Kansas, very little attention has been established their own systems of justice to make paid to the prevalence of vigilantism in the up for the lack of formal institutions.9 other territory created by the Kansas-Nebraska Bleeding Kansas occurred at a time when one Act, a territory that in fact shared many simi­ type of vigilante group, the "claim club," was larities with territorial KansasJ6 As in Kansas, becoming widespread across not only Kansas but increasing numbers of settlers relocated across also in places such as Iowa, Nebraska, Colorado, the Missouri River and into the Nebraska Montana, and California. Settlers in these Territory immediately after passage of the act, PUBLIC OPINION IS MORE THAN LAW 311 and Nebraska's future, like that of Kansas, was heavily influenced by the formation of vigilante groups during its territorial period. Nebraska settlers formed vigilance committees as early as the summer of 1854. Indeed, Nebraska's key difference from Kansas, namely that it did not become part of the national debate over slav­ ery, makes a study of vigilantism in Nebraska intriguing, as any features common to both territories cannot be said to have been caused by the slavery issue alone. Immediately after the Nebraska Territory's FIRST CLAIM CABIN IN NEBRASKA organization, many of the settlers in the vicin­ ity of Omaha formed a claim club to secure FIG. 1. Drawing of the first claim cabin in Nebraska. what they considered to be their property, Addison Erwin Sheldon, History and Stories of since the U.S. government, for the time being, Nebraska (Chicago and Lincoln: University Pub­ lishing Company, 1914), 241. Courtesy of Nebraska could not afford them any protection. As of State Historical Society. 1854, the only legal mechanism for Nebraska settlers to acquire public lands was pursuant to the Preemption Act of 1841, which allowed the threat to property, community order, and heads of families, widows, or single men to economic progress that speculators posed to secure legal title to up to 160 acres of surveyed these fragile communities. I then explore these public lands, provided they followed the pre­ organizations in the context of the effort to scribed steps. After inhabiting and improving promote Omaha and to develop it into a west­ particular parcels, qualified settlers had thirty ern metropolis, an effort that paradoxically days to file a declaration of intent to preempt, required settlers to attract investment from and they had a year to prove the settlement and the very people whom settlers purportedly improvement, to submit an affidavit testifying feared. The final two parts assess the extent to that they met all of the requirements of the act, which the operation of the Omaha Claim Club and to pay $1.25 per acreP However, because violated the egalitarian rhetoric used to justify the government had yet to survey the land near its existence. The claim club often employed Omaha or open a land office in the Omaha violence and intimidation to secure not only land district, settlers in Omaha were unable to the economic interests of Omaha's most promi­ file for preemptions. Thus, on July 22, 1854, a nent citizens but also those of the very Eastern large group of these settlers met and approved speculators whose threat warranted the com­ a series of rules and regulations for the purpose munity's heightened vigilance in the first place.
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