University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln Dissertations, Theses, & Student Research, History, Department of Department of History 5-2015 Land and Law in the Age of Enterprise: A Legal History of Railroad Land Grants in the Pacific Northwest, 1864-1916 Sean M. Kammer University of Nebraska-Lincoln Follow this and additional works at: http://digitalcommons.unl.edu/historydiss Part of the Legal Commons, and the United States History Commons Kammer, Sean M., "Land and Law in the Age of Enterprise: A Legal History of Railroad Land Grants in the Pacific orN thwest, 1864-1916" (2015). Dissertations, Theses, & Student Research, Department of History. 84. http://digitalcommons.unl.edu/historydiss/84 This Article is brought to you for free and open access by the History, Department of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Dissertations, Theses, & Student Research, Department of History by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. LAND AND LAW IN THE AGE OF ENTERPRISE: A LEGAL HISTORY OF RAILROAD LAND GRANTS IN THE PACIFIC NORTHWEST, 1864 - 1916 by Sean M. Kammer A DISSERTATION Presented to the Faculty of The Graduate College at the University of Nebraska In Partial Fulfillment of Requirements For the Degree of Doctor of Philosophy Major: History Under the Supervision of Professor William G. Thomas III Lincoln, Nebraska May, 2015 LAND AND LAW IN THE AGE OF ENTERPRISE: A LEGAL HISTORY OF RAILROAD LAND GRANTS IN THE PACIFIC NORTHWEST, 1864 – 1916 Sean M. Kammer, Ph.D. University of Nebraska, 2015 Adviser: William G. Thomas III Federal land subsidies to railroad corporations comprised an important part of the federal government’s policies towards its western land domain in the middle decades of the nineteenth century. In all, Congress granted over a hundred million acres to railroad corporations to subsidize construction of a transcontinental railway network. Long after the last such grant in 1871, these land grants continued to incite political contests in Congress and state legislatures and legal disputes in communities across the West. By the end of the century, railroad corporations had become manifestations not just of the threatening growth of corporate power in the United States, but also of the official governmental approach to public lands, the failed and corrupt implementation of that approach, and the apparent threat of resource depletion that resulted. Through its examination of the Northern Pacific’s land records, administrative and judicial opinions relating to public lands, and the transcripts of key cases involving land grants, this dissertation makes significant contributions to the historiographies of railroads, of federal land policies, and of the Progressive conservation movement. It treats the relationship between the government and railroad corporations not as one between regulator and regulated, but rather as one between co-managers of the nation’s resources and economy, and as one in which the legal boundaries of authority were uncertain. Most importantly, though, this dissertation provides insights into the failures of lawmakers and policymakers to standardize and categorize the social and physical worlds they governed. Legal conflicts, including those involving railroad corporations, ultimately exposed contradictions at the heart of the American legal order. These included contradictions between the promotion of individualism and the protection of community order; between notions that land should be owned by as many people as possible for the sake of building a virtuous, fair society and a belief that land should be commodified and exploited for sake of economic growth; and between characterizations of property as bastions of protection from the State and the use of property as a tool of the State in acquiring and maintaining power. Each of these contradictions can be negotiated but never resolved. iv Copyright 2015 by Sean M. Kammer All rights reserved. v ACKNOWLEDGMENTS Earlier this evening I told my wife, Sarah, that the last part of my dissertation left to complete was the “acknowledgments” section. She responded with sound advice: “thank your loving, clever wife, thank your advisor and committee, thank your elderly shiba inu, Maya”—who she also pointed out was a puppy when I started this endeavor— “and be done with it.” I wish I could be so succinct. If this dissertation proves anything, it’s that I can’t. My first time meeting anyone from the history department at the University of Nebraska was over lunch in the spring of 2007. Months earlier, I had applied for the graduate program in history, and I was meeting a few faculty members to discuss my plans. I don’t remember what I ordered for food, but I still clearly remember being impressed with the energy, intellect, and warmth of the faculty I met with that day. My decision as to whether to attend the University of Nebraska was not finalized that day, to be sure, but I knew it would be a good fit for me if that were what I decided. Thank you, James D. LeSeuer, Andy Graybill, and Will Thomas, for not leading me astray. Professor Thomas also served as my advisor, and I am especially grateful for that. He always seems to know what to say to get the best out of me when I am on the right track and to help me out of ruts when I am not. He allows me to come up with ideas seemingly independently—which is important to me—while still letting me know he has my back whenever needed. Most of all, I have enjoyed simply being around Professor Thomas and being able to share my thoughts with him. His positive energy is infectious, and I look forward to being his friend and colleague. vi The same goes for all my committee members. I formed my committee based primarily on who inspired me most through their teaching, scholarship, style, and engagement with the community. Professors Graybill, Margaret Jacobs, and Lloyd Ambrosius clearly met my criteria in addition to offering a variety of invaluable perspectives. The fifth member of my committee is not a historian. One of the college’s requirements for doctoral students is that one member of each committee be a faculty member from outside the department of study. I remember struggling to find whom to ask to be on my committee. Fortunately, as the deadline approached for forming my committee, Professor Thomas recommended a faculty member from the law school, Sandi Zellmer, who he thought would be a perfect fit. All I can say now is he was right. I hope I can someday repay each of the members of my committee for all they have done for me, but I know that is impossible. I suppose I will just have to pay it forward. I am excited for that. Beyond my committee, I owe a special gratitude to John R. Wunder. Even as he neared retirement, Professor Wunder did all he could to help me both in and out of the classroom. He has been a mentor to me in every sense of the word. Thank you to the history department for supporting my dissertation research, including through awarding me the Addison E. Sheldon Research Fellowship in 2011. Thank you to all the librarians who helped me track down texts. Thank you to the support staff in the history department, Barbara Bullington and Sandra Pershing, for all of their help in navigating the bureaucratic maze of graduate learning. Thanks as well to Teresa Carlisle here at the University of South Dakota School of Law for her vii occasional proofreading and, in advance, for her help printing and mailing copies of this document to my committee members. My graduate experience could not have been a success without the friendships I formed along the way. Thank you especially to Shayla Swift, Rob Voss, Dave Nesheim, Andy Wilson, Chris Steinke, Jason Heppler, Michelle Tiedje, Brianna Theobald, Brian Sarnacki, Robert Jordan, and Rebecca Wingo for sharing this experience with me. Our mostly ridiculous conversations, whether on the tenth floor of Oldfather or on the back patio of Duffy’s, helped keep me sane(-ish). And of course thank you, Sarah and Maya. I could not have done this without you. --Sean Kammer Vermillion, South Dakota April 16, 2015 viii TABLE OF CONTENTS Acknowledgments .......................................................................................................... v Table of Contents ........................................................................................................ viii Introduction .................................................................................................................... 1 Chapter 1 – Railroad Land Grants in an Incongruous Land System ............................ 25 Chapter 2 – Avoiding a Public Lands Tragedy .......................................................... 114 Chapter 3 – Lawyering for the Railroad ..................................................................... 153 Chapter 4 – The Railroads Must Have Ties ............................................................... 181 Chapter 5 – Inertia and Undirected Drift .................................................................... 224 Epilogue ...................................................................................................................... 276 Bibliography ............................................................................................................... 288 Ask the man who wonders that there are so many laws, to go with you to the neighboring prairie, and, standing in the door of the farmhouse, with corn-fields