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“[The term squatter] has been applied indiscriminately to all who questioned dubious titles and tried to test them by settling land.”

—Paul W. Gates[1]

“Squatting is the oldest mode of tenure in the world, and we are all descended from squatters.”

—Colin Ward[2]

“In conclusion, your committee are compelled to say, that if possession under color of title for 207 years, and actual title under the legitimate government of the land, for 140 years…is not a perfect title, it would be extremely difficult to find one; there can certainly be none in this state.”

—New York Assemblyman William F. Allen in response to the conundrum of Rensselaerwyck

To begin this chapter about the history of land struggles in the United States, it would be fair to again note that the following proprietary injustices were only made possible through the similarly unjust usurpation of the continent by white settlers. By the second generation after colonization, however, little blame could realistically be placed on American residents whose luck had them born onto a stolen continent. Poverty-stricken pioneers moved westward in search of affordable habitation (and occasionally in search of profit) and they were subject to the whims of a fickle federal government that struggled to balance legislation as both lucrative and fair to republican ideals.

Since the arrival of Europeans in North America, land and power have been conflated concepts—the goal of capitalist settlers being to procure as much land as possible. In the New World’s colonial days, the Crown insisted on relatively formal methods of land acquisition, preferring internationally recognized treaties with Natives to bloody conquest. The British did not rule out violence as an option, but according to their Doctrine of Discovery, it was to be used as a last resort should Indians respond poorly to the offer of a treaty agreement. This is not to suggest that the hands of the British colonizers were clean; indeed, their ideas about how a “New World” should be utilized are markedly objectionable by today’s human rights standards.

Ward Churchill writes in his essay “Perversion of Justice” that “a person or a people [was] ultimately entitled to only that quantity of real estate which s/he/they convert from ‘wilderness’ to a ‘domesticated’ state. By this criterion, English settlers were seen as possessing an inherent right to dispossess native people of all land other than that which the latter might be ‘reasonably expected’ to put to such ‘proper’ usage as cultivation.”[3] This practice would nearly always eliminate Native Americans’ claim to land. In 1763, however, King George III broke the conflation of land and power in his proclamation that no land further west than Appalachia was to be settled by colonizers for fear of disrupting the fur trade and risking further Indian warfare.[4]

Possibly anticipating the Revolution of 1776, in 1773 George Washington, among others, defied the king’s proclamation in order to pursue land speculation further west. At this point, the motives of the burgeoning new nation became possibly more dubious than those of Great Britain. The new Americans did not respect treaties to the extent that many international players appeared to; they frequently assumed land title without consulting Natives at all, and even when they did sign treaties, the settlers regularly neglected the terms and later breached the contracts (with few repercussions).[5]

This bulldozer approach of the new Americans proved lucrative after the revolution when the former colonies offered to admit the Western states into the now-independent United States, in exchange for the use of Western lands. Fearing that taxes would drive Eastern residents west and cause the federal government to lose money, Eastern bureaucrats plotted to absorb and develop everything west of the Mississippi and then collect revenue by selling off large parcels of public land to speculators. In turn, the speculators would divide that land into smaller parcels and flip them to settlers at an inflated price.[6] The Land Ordinance of 1785 dictated how these lands would be divided. Counterintuitively, auctions for land in the West were only held in Eastern cities, and bidders could only buy 640 acres or more at $1 an acre or more. Because of this distribution framework, the settlers themselves could not buy land outright; only speculators, or “land-jobbers,” had that privilege.[7] But, as Mike Davis would write of such unfathomable capitalist monstrosities as Dubai two centuries later, “What is too often flipped, some economists predict, may someday flop.”[8] And the same was true in eighteenth-century America.

Squatting on the frontier was a problem for institutions from the onset. With little enforcement structure in place to prevent illegal occupation, settlers grabbed land where they saw it not in use—which compelled the Jefferson administration Congress to craft strict laws against illegal settlements. With the act of March 26, 1804, squatters north of the Ohio River (which was Indian territory) or in Louisiana were subject to a $1,000 fine or a year in prison. The act also authorized the army to use its force toward ejectments. With the act of March 3, 1807, came more penalties for squatters. But it also made for one of the first legal leniencies in regard to land: If settlers were already living on a plot, they were permitted to retain up to 320 acres of it as long as they registered at the land office and signed a statement claiming no right to the property and pledging to leave when it was sold. Squatters who refused this deal would be fined $100 and risked a prison sentence of six months.[9]

Squatting wasn’t exclusively a Western phenomenon, however: In 1726, there were upwards of 100,000 squatters in Pennsylvania alone. In 1784, Pennsylvania as well as Massachusetts began a series of preemptive measures to transfer title to squatters in those states. Massachusetts (still in possession of Maine at the time) recognized occupancy rights of squatters who had improved the land, particularly in the Maine territory, which Massachusetts had hoped to settle.[a] Not having title to land was common, at one time, particularly in the original colonies and before the revolution. In 1776, Virginia handed out 400 acres free of charge to each settler, and the next year North Carolina gave away 640 acres of unclaimed land to any settler who wanted it. The faster land was transferred to private ­ownership, the faster the government could accrue revenue from it.[10]

The United States continued to voraciously consume land. In 1819, the federal government acquired Florida from Spain. In 1845, it acquired Texas from the Republic of Texas. In 1846, it acquired Oregon territory from Great Britain by treaty. In 1848, the Mexican Cession granted the United States California, Nevada, New Mexico, most of Arizona, and parts of Colorado and Utah. The 1853 Gadsden Purchase transferred the rest of Arizona, and in 1867 the U.S. acquired Alaska from Russia. Over the course of fifty years, the country padded itself by 300 percent. It was described at the time as being the “best system in the world.”[11]

There was something fishy about the pattern of land distribution, however. With the government continuously selling the public domain in order to fund its ever-expanding presence, matters of equitable distribution were overlooked. By 1792, for example, only six people owned half of the current state of New York.[12] According to historian Paul W. Gates, “In New York, revenue and even promotion of settlements were of minor importance. Instead, the emphasis was on large grants of members of the governor’s council and other favorite individuals and families, with all settlement or improvement requirements quite generally disregarded.”[13]

Gates explains further that independence from Britain scarcely impacted the course of land management in the state. At the time of the first national census in 1790, New York was significantly stunted in terms of population and economic growth when compared with Pennsylvania, Massachusetts, Virginia, and North Carolina, despite its longer history. This was because a small number of land barons owned a very large ­acreage of land.[14]

One of the most incredible stories to come from New York’s bizarre history of land tenure—and resistance to its injustices—is that of Rensselaerwyck and the Anti-Rent War, which began on July 4, 1839, and marked the beginning of a new era in land law in the Hudson River Valley. The twenty-four square miles of Rensselaerwyck (which is now Albany and Rensselaer Counties) was owned by Stephen Van Rensselaer III, and had been in the family for 207 years since New York was New Netherland. The Van Rensselaers ran their manor as a patroonship—an archaic form of feudalism rooted in Dutch property law. Under the patroonship, each of the 3,063 families on the manor signed leases that lasted “forever” and amounted to, in their own words, “voluntary slavery.” The Van Rensselaers had successfully peopled their land by offering prospective settlers the first seven years rent free. Many of the contracts had also been signed by very poor or illiterate settlers who did not understand the outrageous terms of the lease.[15]

When Stephen III, whom many had regarded as the “richest man in America,” died in 1839, his tenants were relieved to think that their unpaid rents might be forgiven. They were infuriated to learn that his son, Stephen IV, intended to collect the back-rents, or rents in arrears, and apply them toward his own personal debt. The tenants refused to pay. When the under-sheriff arrived to collect the rents, anti-renter Isaac Hungerford stopped him and, while brandishing a large jackknife, said, “You had better go home and be in some other business. We have pledged ourselves that no officer shall travel through here to serve process for the patroon. We have made up our minds to die, and we are ready to die in the cause of resisting any officer that should come there on the patroon’s business.”

The next time a Van Rensselaer hireling came to serve the tenants writs, they set a tar barrel on fire and told the collector that they would spare his life if he burned all the writs. When he did this, they made him buy a round of drinks for everyone present—after which they took him to burn all the writs that he had already served, and then had him buy two more rounds for everyone at the tavern. After each round, the tenants lit another barrel on fire and debated whether or not to tar and feather the man. When police came to the manor to restore order, they were turned away by 300 anti-renters, wielding clubs and shouting, “Down with rent!” The next time, police were met by 1,500–1,800 protesters, who blocked the road completely.

Finally, just before the government brought in 2,000 military troops from New York City, Governor William H. Seward gave the anti-renters one last warning. He said, “Organized resistance to legal process is insurrection, and if death ensue the penalties of treason and murder are incurred. The only lawful means to obtain relief from any injuries or redress of any grievances of which they complain are by application to the courts of justice and to the legislature.”

To avoid a stalemate, both sides heeded Seward’s suggestion and attempted to employ the law to remedy their dilemma. But in order to legally deconstruct the disaster of Rensselaerwyck, anti-renters and the State of New York alike would have to determine how Rensselaerwyck was legally constructed in the first place. Every person involved was equally baffled about how the estate could have ever legally come to be.

While most property law in the United States is based on English Common Law, the brand of feudalism practiced at Rensselaerwyck had been outlawed by Parliament and King Edward I with the statute Quia Emptores almost 600 years earlier. This is explained by New York having been under Dutch control before the British acquired it. No American lawyer by the time of the revolution remembered the Quia Emptores statute; thus, it was never migrated into American property law.

Quia Emptores outlawed the form of fee-farm rent known as rent service. The closest statute that America had to the British Quia Emptores was the Act Concerning Tenures of 1787, which banned feudal properties and established all real estate as allodial—that is, owned absolutely and independently of a lord. If nothing else, the Act Concerning Tenures should have at least converted all rent-service leases into rent-charge leases, but this statute appeared to have been largely ignored in Upstate New York until 1839 when tenants began examining the legal dilemma.

If anything was more difficult to explain than where this patroonship came from, it was how to get rid of it. Any suggested method of taking away a person’s “vested property rights” was immediately dismissed as unconstitutional. The only legal way to divest the Van Rensselaers of their land was through the use of eminent domain. A process still used today, eminent domain allows the state to appropriate private property for the “public good,” as long as the owner receives “just compensation” from the state.[16] This might have worked had the whole country not been battling an economic depression in 1841: The State of New York was so under-financed that it had to abandon its work on the Erie Canal. So the idea was put on the backburner and Congress continued debating. Meanwhile, anti-renters were recruiting residents of other nearby counties to join the rent strike. And because Congress was still discussing a legal resolution to the feudal tenures problem, writ-bearing deputies were kept off the manor as the rent strike continued.

In March 1841, attempts to collect rent resumed. As residents refused, deputies took up “distress sales”—that is, the auctioning off of residents’ material goods as pre-modern repo men. But stalwart anti-renters then adopted other tactics. At auctions, crowds of people would begin bidding and continue bidding from morning until night, exhausting the auctioneer and trying the patience of the patroon. Anti-renters also began the practice of disguising themselves as Indians (a motif reminiscent of the Boston Tea Party)[b] and forming a silent ring around potential buyers at distress sales. This usually intimidated people away from bidding on items. In one case in which a man bid on a horse, the incognito anti-renters rolled him down a hillside.

The “Indians” continued their intimidation tactics until September when the military sent four companies to the manor to squelch the movement. They threw rocks at the soldiers but retreated after two anti-renters were cut by the soldiers’ bayonets. In response, a week and a half later, the “Indians” kidnapped Deputy Sheriff Bill Snyder and held and tormented him for two days. Bill Snyder’s ambush marked the last attempt to collect rent on the manor for nearly three years. All the while, Congress continued to unsuccessfully work toward land reform.

Matters became more complicated when evidence surfaced to confirm old suspicions that Stephen Van Rensselaer IV may never have been the rightful heir to the manor at all. The trouble dated back to 1685 when, under a Dutch patent, the manorial title was conveyed by King James II to Kiliaen Van Rensselaer (son of Johannes) and Kiliaen Van Rensselaer (son of Jeremias) from their common grandfather, the first patroon. But Kiliaen (son of Johannes) and Kiliaen (son of Jeremias) had a third cousin, also named Kiliaen—this one the son of Jan Baptist. The lineage of this third Kiliaen (son of Jan Baptist), who was the oldest son of original patroon (confusingly also named Kiliaen), was now pointed to as the rightful heir of the manor, according to the common law rule of primogeniture. The other two Kiliaens were suspected of covering up the existence of the third Kiliaen, who had never emigrated from Holland.

By the end of 1843, few residents at Rensselaerwyck believed that Stephen IV had the right of title. When one anti-renter was caught stealing timber from the manor, the government found it impossible to fill a jury with unbiased peers, as nearly every resident was suspected by the district attorney of belonging to the Anti-Rent Association.

The “Indians” meanwhile organized a march around the whole Hudson Valley region, along the way instructing people on how to run a rent strike, how to resist sheriffs, and how to sing the movement’s own anthem, “The Ballad of Bill Snyder.”[17] Authorities responded by having a band of thirty-five men issue a new batch of distress warrants. A hundred of these “Indians,” armed with pistols and tomahawks, surrounded them, released their horses, and forced them to march a mile and a half, at which point they searched the deputies for distress warrants. The man in possession of the warrants was tarred and feathered. At midnight, the disguised anti-renters went to the deputy’s house, snatched all the warrants he had, and burned them at a “powwow in the center of the village.” When the deputy bragged that he would get even, the “Indians” struck first by kidnapping him from his bed that night to cover him too “with a thick coat of tar and feathers.”

After this incident, the sheriff organized a formal meeting between the authorities and the anti-rent representatives, at which he offered to mediate between their association and the patroon. There was one more attempt to serve distress warrants on the manor, which ended in another tarring and feathering, after which the anti-renters were left in peace for several months. Meanwhile, the Indian costume came to be more than just a disguise—it was an identity that the anti-renters now wore with pride.

But everyone involved found that their war had reached an impasse; Congress could not sponsor land reform so long as the “Indian” resistance continued, and similarly, anti-renters could not renounce resistance without seeing the sort of change they demanded. Tipping the scales, citizen action soon turned to bloody insurrection when a stray bullet at a demonstration hit and killed a teenage spectator.[c] After that, the anti-rent movement was tainted by bloodshed, and government officials appeared less willing to work with the group, preferring instead to put down the revolt by capturing and jailing every one of the “Indians.” Authorities became fixated on this issue over land reform. By August 1845, “Indian” activity had resulted in the deaths of several authorities, including a deputy sheriff. After this, the “Indians” who weren’t yet in jail burned their disguises and went into hiding, collapsing the militant movement. A few of those who were unlucky enough to be caught were sentenced to death, while most received either prison time or fines. Other anti-renters continued the resistance by blaring a horn whenever a law enforcement official was in the vicinity so as to make his presence known. They also occasionally arranged for the disappearance of livestock and other chattels advertised for distress sale.

All the while, anti-renters were holding out for the “title-test” scheme, by which they hoped to disprove the patroon’s legitimacy of title and instantaneously be granted their land in accordance with the adverse possession law—which required that a person “openly and notoriously” occupy a property for (at that time) twenty years in New York state.[d] The patroon himself could not argue adverse possession, as he had not personally occupied the entire manor for twenty years. Only the residents could make the claim.

In many other counties, landlords had already agreed to sell their interests to the rent-striking tenants, thus mollifying much of the broader regional movement. When manor lords wouldn’t sell, residents sometimes burned down their own houses and threw down their own fences rather than allow the landlords to benefit from their generations worth of property improvements. By 1850, only the Van Rensselaers still refused to sell, and the Rensselaerwyck residents found themselves alone in the struggle.

In the title-test suit, the court surprisingly found that the plaintiff was not technically a landlord at all and that the defendant was not technically a tenant. Instead of a “lease in fee,” the parties had engaged in a “grant in fee” because none of the living residents had signed the original contracts. Instead, they had inherited the perpetual debt from their ancestors. It was the classic terms of an indenture—the sort that hadn’t existed in England since the year 1290 but somehow thrived in Upstate New York in the mid-nineteenth century. This shift in definitions altered the terms of the entire case. The suit was thrown out, and the only escape from manorial tenure now would be for the patroon to sell out, which he still refused.

In 1853, after fourteen years without income from rent, Stephen Van Rensselaer IV finally sold the manor to a speculator named Walter Church for a lower price than he had ever offered manor families. He was so bitter over the rent strike that he purposefully sold the farms to Church rather than to the residents themselves. Once Church had the land, he offered to sell families their individual farms at an inflated rate, and about half the families took this option. The other choice he gave them was to pay their back-rents and continue their leases in perpetuity. Anyone who refused both options would forfeit their farm. Following this, Church issued 2,000 writs of ejectment. By 1859, only 580 of the 3,063 original leases still existed.

In 1860, one Peter Ball was evicted from his farm for withholding back-rent. If Ball paid his rents in arrears he would be allowed to keep the farm—and though he indeed had the money, on principle, he refused to pay. The sheriff even offered him $50 out of his own pocket to avoid the unpleasantness of eviction. But Ball had been an anti-rent militant for twenty years, and he would not turn. Almost every inhabitant of the town was present as authorities emptied the house and placed all of Ball’s possessions on the snowy side of the road. No one objected to the eviction, but after all the authorities had returned to Albany, a resurgence of “Indians” moved Ball back in and occupied the property with him for several years afterward.

During this same time, soldiers around the country were fighting the Civil War, and those who were not fighting were suppressing anti-draft riots in Manhattan. Short on military assistance, Church was poised to do little in the way of aggressive evictions—so he did not confront Peter Ball again until May 1865, after the Civil War ended, and with the help of the state militia.

A mere month before, the New York legislature had ratified a thirteenth amendment to the Constitution, abolishing slavery and involuntary servitude. Yet the eviction of Peter Ball went ahead unhindered, and the same soldiers who had fought against slavery the year before, now ironically reinforced the feudal servitude at Rensselaerwyck. To prevent the anti-renters from reclaiming Ball’s farm the way they had in 1860, soldiers packed a thousand rounds of ammunition and several barrels of provisions, and they camped that night on Ball’s land. The next day, the troops marched up every road in the county’s western townships and began their forced ejections of all remaining tenants. Most had already left to avoid the indignity of eviction.

That August, in one last attempt at justice, thirty “Indians” sneaked onto Ball’s former farm at first light to harvest his crop. But the militia had arrived before them and turned them away. The next day, Church hirelings harvested Ball’s crop and shipped it to market; a profit from nothing for Church.

After twenty-six years of litigation and uprisings, the Anti-Rent movement was finally over. Its conclusion was as embarrassing as it was disappointing. The Anti-Rent incident dispelled the American notion of democracy for many nineteenth-century contemporaries who questioned how, in a country of “free” people, the violence of the state could be utilized as an arm of private tycoons to silence the majority. Even when every lawmaker in Congress agreed that feudal tenures were outmoded in modern society, they still shrugged their shoulders at the legal roadblocks and avoided alternatives suggested by logic and practicality.[e] As late as 1884, 300 leases in perpetuity were still active in the Hudson River Valley. Even today, traces of this failure of democracy are evident when astonished homebuyers in Albany County are compelled to pay a nominal rent charge every year to some remote assignee of Stephen Van Rensselaer III.[18]

The story of Rensselaerwyck is indeed an unusual property tale for the United States. But that the story grew from Dutch property law does not make it impertinent to American law. If nothing else, it reflects an important trend of what could be called trickle-down land distribution and the refusal to allow settlements to occur organically. Instead, land is used as a buy-and-sell commodity that one is paternally granted the right to use. Patricia Nelson Limerick describes the phenomenon this way: “Conquest basically involved the drawing of lines on a map, the definition and allocation of ownership (personal, tribal, corporate, state, federal, and ­international), and the evolution of land from matter to property.”[19]

This transition from matter to property, as Limerick describes, was the cornerstone of the development of the United States as a country. After the revolution, property began to be discussed in terms of fee simple—a concept antithetical to feudal ownership systems that tethered individuals to pieces of land. The United States prided itself on its freedom to accumulate and dispose of land at will, and property owners’ freedom from meddling feudal or royalty lords. James Howard Kunstler points out the advantages and disadvantages of such a system in The Geography of Nowhere: “America’s were the most liberal property laws on earth when they were established.... Our laws gave the individual clear title to make his own decisions, but they also deprived him of the support of community and custom and of the presence of sacred places.”[20]

Kunstler points to a developmental oversight that is endemic throughout U.S. history. The haphazard methodology of land distribution was a federal scheme; only the government and speculators were able to profit from the mammoth raw resource that was North America. Nearly anyone else who gambled at real estate entered into a perpetual state of debt. In fact, while pioneering the West remains romanticized to this day, settlers were sometimes more realistically trapped by the credit-debt ­system than they were forging a lawless frontier.[21]

Settlers of the West were often poor, and those who couldn’t afford to enter into a credit-debt arrangement resorted to squatting the public land rather than buying it. With great hordes of these squatters occupying farms in the West, their communities became difficult for authorities to disperse. The squatters formed what they called “settlers’ associations,” which not only lobbied state and federal governments under the banner of squatters’ interests, but also used direct action—and often violence—to protect their land. At auctions, if a speculator attempted to purchase the squatted land, he would be “knocked down and dragged out” of the room. As a last resort, squatters threatened to “burn powder in their faces.” If squatters went to jail for these types of actions, everyone in the association would chip in to pay the bail. If squatters went to court, a jury of their peers would consistently acquit.[22]

Settlers’ associations—also known as “squatters’ associations” or “claimants’ clubs”—became so popular beginning in 1824, that on March 31, 1830, Congress banned group intimidation tactics, threatening potential lawbreakers with $1,000 fine and two years in prison. One attendee of an Alabama auction at which claimants’ club members were present wrote, “The general opinion is…that these men will murder any man, or set of men, who bid for this land against their body.” Because of this mean reputation, many settlers’ associations earned the respect of land officers, moneylenders, speculators, and potential claim-jumpers, and eventually formed a larger Squatters’ Union in 1936.[23]

Settling on federally owned land had been criminalized by the Jefferson administration in 1804, and squatters were threatened with fines and imprisonment. Yet, “there is little evidence that Western people were intimated by the laws.”[24] Easterners tended to view squatters as “lawless land-grabbers,” a result of the growing absentee landlordism that was problematic both to squatters and legal settlers of the West alike. Absentee landlords consistently failed to improve their land, preferring to wait until tenants or squatters did it for them. Furthermore, owner-occupied lands tended to yield more affluent communities because residents felt a sense of direct investment in their surroundings, while absentee-owner properties made way for poorer communities, even decades later.[25]

In response to the problem of absentee landlords, local governments began to write their own property law as a method of undermining federal policy. Examples of this included raising taxes on unoccupied land and requiring the taxes to be paid in coins only, which was near impossible for absentee owners. Lawmakers also sometimes compelled landowners to reimburse evicted squatters for any improvements that they made to the land during their occupancy under color of title.[26]

Eduardo Moisés Peñalver and Sonia K. Katyal posit in their book Property Outlaws that disgruntled settlers were actually able to alter the written law by pushing the envelope in a tenuous social climate. Without squatters intentionally breaking the law, legislation like adverse possession would have never been accepted into the legal compendium. Further, all of the legislative alterations that comprised a series of preemption acts from 1815 until the most famous in 1841 were brought about through petitions and general public unrest.

The preemption statutes incrementally awarded illegal settlers land on a case-by-case basis according to certain conditions, including but not limited to the magnitude of improvements made on the land by those settlers. Between 1820 and 1829, the federal government awarded 179,717 acres to settlers without title in Mississippi, Louisiana, Arkansas, Florida, and Alabama (data on other states is not available before 1830). Between 1830 and 1836, the government awarded over two and a half million acres in Alabama, Missouri, Louisiana, Michigan, Arkansas, Florida, Ohio, Indiana, Illinois, and Mississippi—the highest number in any individual state in one year being Alabama in 1824 with 338,985 acres awarded.[27]

The argument against preemption was that such allotments “would forgive and reward men who had violated anti-intrusion laws.” The Premption Act of 1830, however, addressed this concern by requiring that settlers pay $1.25 an acre for land that was not already reserved by another buyer—though these preemptive measures only lasted for one year. What settlers really wanted was land for free and to be able to compensate the government later after they had drawn income using the land’s resources. Conditions such as this one prompted settlers to appeal to the government with petitions and stories of poverty. In many cases, a profusion of objections to land legislation actually effected change: In 1815, for example, James Madison attempted to eject all illegal settlements in Indiana, but overwhelming public outcry compelled him to legalize every settlement in the territory. In Thomas Jefferson’s proclamation in December of the same year, he decried occupiers of the public domain as “uninformed and evil-disposed persons,” threatening them with military force. Few squatters were intimidated by such proclamations, and a delegate from the Indiana Territory, Jonathan Jennings, argued to Congress that squatting resulted from the government’s own failing to put the land on the market.[28] So in 1819, Congress passed the Occupancy Law, which mandated that squatters either get paid for the improvements they made on a property or have an opportunity to buy it minus the cost of the improvements.[29]

Application of the adverse possession statute, too, was popular during this time—and not only in the West, but also in Maine, which was sparsely populated and in many ways also considered wilderness. In the nineteenth century, Maine, along with the states of the West, used local courts to piecemeal rewrite American property law to favor occupants over owners. The majority of land in Maine was owned by a handful of wealthy land speculators known as the Great Proprietors, the corollary of which were the Liberty Men—the gang-like organization that led the resistance effort in the region. Similar gangs developed in other localities—such as the Wild Yankees in northeastern Pennsylvania, the Whiskey Rebels in Western Pennsylvania, the Green Mountain Boys in Vermont, the Liberty Boys in New Jersey, and the Berkshire Constitutionalists in Massachusetts—resulting in uprisings such as Ely’s Rebellion, Fries’ Rebellion, and Shays’ Rebellion (also known as the New England Regulation). Between the 1740s and the 1830s, settlers also revolted against landlords and speculators with riots and gang warfare in South Carolina, Ohio, and New York. These settlers “believed in a different American Revolution, one meant to protect small producers from the moneyed men who did not live by their own labor, but, instead, preyed on the many who did,” writes Alan Taylor in Liberty Men and the Great Proprietors. “Agrarians dreaded prolonged economic dependence as tenants or wageworkers as the path to ‘slavery.’”[f]

In Maine, land was constantly disputed on account of conflicting patents. The three major patents were drawn up by British lawyers who had never even seen the territory, so they were often imprecise and overlapping. These three major patents were claimed by the Great Proprietors, but they were further in conflict with ten other, smaller land patents. To make things more confusing, tracts of land were frequently sold and resold by local Indians to white settlers who didn’t understand that several other people were also under the impression of ownership. Consequently, property titles were unclear in most of the region—though the Great Proprietors could more easily back their unfounded claims with wealth and sued settlers who purchased land from the competition.[30]

Despite being the original developers of schools, meetinghouses, gristmills, sawmills, and roads in their towns, the settlers were compelled to pay the Great Proprietors for their use of the land. “Because wilderness land was virtually worthless without men to improve it, the settlers created the value that the proprietors demanded from them.” This should not suggest that settlers were opposed to private property; instead, the “cultural expectations of rural equality taught that a man should hold only what his family could improve,” which was usually about 50–150 acres per working male.[31]

The Great Proprietors, on the other hand, maintained the illusion that they were intellectually superior and that it was their moral obligation to guide the backcountry pioneers into a mode of civilization and sophistication. With disdain, they viewed the frontier as “an escape hatch that allowed men and women to evade discipline, morality, and law. So long as that outlet existed, the poor would remain saucy and uncooperative, and the frontier would sustain a squatter anarchy where quasi-Indian whites squandered nature’s bounty to live in idle dissipation.” The proprietors’ measure against this threat of sustained backcountry ignorance and degeneracy was to impose an “entry fee” to the frontier, limiting settlers to only those upright citizens who could afford pioneering, and molding the enlightened Maine that they envisioned. After all, if they failed, squatters might “preempt the vast American frontier for an asylum of the turbulent poor lost forever to commercial civilization, a threat rather than an asset to the older centers of trade, culture, and governance.”[32]

Henry Knox was one of the most notorious and reviled proprietors, known for taking out advertisements such as this one (with its original capitalization and application of italics, in the style of the day):

The Subscriber has agreed, with all the settlers, seated on his back lands, and sold lands the fame quarter to numerous and respectable Emigrants from the States Westward, on principles promising them great prosperity and the establishment of harmony and good order throughout that fertile region. He conceives therefore, that this is the proper moment to announce in the most public and solemn manner that in future, No usurpation of his lands will be tolerated. As the land is, and will be surveyed into lots, no hope of impunity will arise from any [ILLEGIBLE] in the offense. Every regular settler has bound himself to discountenance and discover lawless persons—It would be deemed madness among Farmers to suffer a wolf to enter at among their sheep, much more so would it be for regular settlers after having legally engaged valuable consideration for their Lands to suffer an audacious usurper to enter and remain there, scattering the seeds of discord, misery, and insurrection with both hands. Any person therefore, who shall in defiance of this notice, and in defiance of the law, usurp the lands of the Subscriber will be prosecuted for the damages that many ensue; suffer the utter loss of his labor and fixtures, and be refused Land at any price whatever.[33]

Knox, as many of the Great Proprietors, was under the impression that his relationship to settlers was a protective and paternalistic one. He described himself as a “father and guardian” to them, as well as a “close friend.” These notions are contrary to his many land monopoly plots and credit schemes at the expense of settlers. In 1792, for example, he teamed up with William Duer of New York, and the two purchased almost three and a half million acres at twenty cents per acre by paying the General Court a relatively small down payment and persuading the court to grant them the full acreage on credit. They planned to sell the parcels at inflated rates to settlers, and in this way, “the settlers would finance the land monopoly held over them by Duer and Knox.” Knox consistently used settlers as a revenue source, profiting from them twice over: first by their improvements on the land and second by their purchase of it. In fact, part of the grander conspiracy of the Great Proprietors was to transform these ignorant yeomen into economically savvy commercial farmers, developing the wilderness and maximizing the financial exploitation of the ­frontier—perpetuating the free market ideas of Adam Smith.[34]

In response to the reckless authoritarianism of the Great Proprietors, squatters and other settlers launched a series of assaults on the proprietors and their property. This frequently involved sabotage or destruction of their boats, garrison houses, or sawmills. Between 1790 and 1799 there were thirty-three such instances recorded, and another hundred between 1800 and 1809. Resisters regularly used the popular Indian-disguise tactic, and—incognito—they would harass the proprietors outside their homes (sometimes by firing shots), steal logging tools and horses, break windows, destroy survey plans and compasses, surround the jail and liberate the prisoners, throw down fences and gates, publicly humiliate proprietor supporters, ambush law enforcement, strip naked the constable and beat him with sticks, and light just about anything on fire.[35]

Knox and the like-minded speculators simply could not understand why this was happening. They blamed the rebels’ actions on the “darkness of ignorance,” and sought to break down the isolation that supported the resistance, while integrating the remote settlers into mainstream American civilization. These squatters became so problematic, however, that the Great Proprietors strategically recruited new settlers, in the hopes of replacing the older, more troublesome ones. “Not used to trust in one another to act against gentlemen of wealth and standing, the recruits dared not directly occupy the homesteads they needed. They had never known the cultural distance from authority that allowed the backcountry’s settlers to develop their own notions about property and power.”[36]

According to the agrarians, not all land was property; unimproved wilderness could only be transformed into property through labor, since labor created all value—and where there is no value, property cannot exist. That said, the Great Proprietors were theoretically unable to sell the title to wilderness lands. Yet, some settlers—especially the new ones—had already been duped into believing the doctrine of private property. Agrarian William Scales asked of the proprietors in 1789, “O why do you not sell the rain, dew, frost and Sunbeams also[?]”[37]

Efforts such as those in Maine, as well as those of other resisters throughout the country, culminated in the federal act of September 4, 1841 (the Preemption Statute), which loosened laws intended to punish squatters. Finally, in 1862, the federal Homestead Act provided an avenue for settlers to acquire federal land after living on it for five years and meeting its improvement requirements.[38]

Americans had become accustomed to free land grants, and they did not adjust well to government’s intention of using public land for revenue. Thus, the Homestead Act quelled many concerned voices in regard to the privatization of federal land. It allowed for heads of family or citizens (or soon-to-be citizens) twenty-one years or older to file a claim on no more than 160 acres of surveyed land, which was not already claimed or under Indian title. Despite the rule against settling on unsurveyed land, many found a loophole in settling the plot first and then filing a homestead application after the land was surveyed later. Surprisingly, it was because of the surveying stipulation that the Homestead Act was actually considered to be more conservative than many of the preemption laws, although an amendment finally allowed for the settling of unsurveyed plots in 1880.[39]

Homesteading was theoretically free of charge, except for the land office fees, which totaled $16 (or about $336 in 2010). To fulfill a claim, homesteaders were required to occupy a property for five years, though a claim couldn’t be canceled until after seven years. Beginning in 1872, Civil War veterans were permitted to count their service time toward a homestead claim, which usually left them with only one year of occupancy required until title was granted. Each settler was only allowed one Homestead application, but another loophole allowed for a settler to receive one piece of land via Homesteading and another via the Preemption Act, as long as it didn’t interfere with occupation requirements.[40]

Because of the simplicity of obtaining free land, “very many [homesteaders or preemptors] did not go west with the purpose of farming, but merely wished to get title to a piece of land.”[41] Indeed, one of the problems of the land-giveaway program was that some used it to make a profit through privatization. Meanwhile, changing factors made land more difficult to attain for those who intended it for personal occupation and use: The railroads were granted twenty million acres a year, and, by their swallowing up land, the Homestead limit for individual families had to be reduced to 80 acres from 160. Furthermore, 127 million acres within 50 miles of the railroad was off-limits to claimants, as were 140 million acres of state land and 175 million acres of Indian land. With limited homesteading options, some considered purchasing outright from speculators, but by 1870, buying had become unaffordable, as average prices tripled between 1862 and the end of that decade.[42]

Still, in the 1860s, almost 100,000 Homestead applications were processed from Illinois, Missouri, Iowa, Michigan, Wisconsin, Indiana, ­Minnesota, Kansas, and Nebraska. While only 8,000 were submitted in 1863, the program grew in popularity over the years, and by its last year, 1890, 40,000 applications were received. Homesteading hit its height in 1886 with 61,600 applicants.

According to Gates, “the Homestead Act breathed the spirit of the West, with its optimism, its courage, its generosity, and its willingness to do hard work.”[43] But not everyone was so impressed by the Homestead Act. Joshua K. Ingalls of Massachusetts saw the act as a token concession to land reformers rather than true progress. In fact, “he considered it ‘so emasculated by political trickery’ that it did little to alleviate the conditions of the increasing numbers of the landless, while enough land had been voted to railroads by the politicians to have furnished a farm of twenty-five acres to every family in the country.”[44]

Ingalls became interested in the theory behind land reform in 1841, the year that the Preemption Statute passed, and he got involved with groups such as the National Land Reform Association, and the Land and Labor League of New England. Ingalls and his contemporaries wanted to restrict the legal size of land holdings and do away with land monopolies, and they saw the movement to abolish land monopolies as linked to the movement to abolish slavery: If a man were prohibited from owning more land than he alone could work, then slavery and slave plantations would become an impossibility. In this way, the two campaigns were paralleled in as much as land monopolies and slavery both reflected “one man profiting from the hands of many men.”[45]

Ingalls was published prolifically in anarchist newsletters and magazines of the time. He called the U.S. land-law system “half-feudal and half-civil,” comparing industrial tycoons of the day to land-wealthy nobility in other countries.[46] He tended to charge the government with the crimes of land usurpation (by reducing land to the status of a commodity) and land hoarding, calling it the “great land monopolist.”[47] In his book Social Wealth, Ingalls chastised economists for sidestepping the subject of land title origins because they “could give no justification to the system, for to trace any title back will yield us nothing…but forceful and fraudulent taking, even were land a proper subject for taking at all.” He went on to write, “Possession remains possession, and can never become property, in the sense of absolute dominion, except by positive statute. Labor can only claim occupancy, and can lay no claim to more than the usufruct.”[48]

Ingalls was not interested in simply eliminating private landlordism, because that shift would inevitably make way for public landlordism—in other words, the state as landlord—which he saw as equally disturbing. He was certain that a state-owned property system would again tax the lowest class the most, compromising its prospects for autonomous living. He wrote, “Any system securing a premium to capital, however small, must result in the worst degradation and servitude of one class, and in bestowing unearned wealth and power upon another…. The product of human labor can only be exchanged for the product of human labor.”[49]

Ingalls’s position on property was averse to institutions, not individuals. He theorized that increases in population yielded a reduction in landholders and an increase in tenancy—thus, he held, the demons of the rent system were in interest and profits, not in the rent itself. Still, he viewed rent as a political affair instead of an economic one. And similarly, he saw the compulsory taxation of land by the state as indisputably a political system of “despotism.”[50] Anders Corr, a hundred years later, in his essay “Anarchist Squatting and Land Use in the West,” agrees with Ingalls in that “the only landowner who does not dominate others, and is thus not a thief, is the one who uses no more than their fair share of land, and who receives no payment for other people’s use of land. Indominative landowners, or those who do not dominate, by the very fact that they had to pay for the land they use [are] oppressed like others who pay for land in the form of rent.”[51]

Eventually, Ingalls grew disillusioned with land-reform groups that wanted to introduce more laws to control the unfair distribution of land. He wanted to remedy the situation by repealing old laws that protected monopolists rather than by drafting new ones to punish them. He disagreed with reform as well as violent revolution; he was interested in property justice through education over legislation. He hoped to do away with land monopolies, gradually, and over time gear property practice more toward occupation and use.[52]

In 1849, Ingalls abandoned the land reform fight and sought to establish an intentional community (which he called a “colony”) in West Virginia. His goal, as he wrote years later, was “to build up a community where rent and interest and even speculative profit are virtually unknown.” Ingalls received a cascade of responses, from Maine to Ohio, of people interested in his cooperative land experiment. Disenchanted with activism to reform the U.S. legal system, he focused on designing an egalitarian microcosm using the capitalist mechanism of allodial title. [53] Corr dismisses this tactic as escapist and privileged. “Only people with economic resources are able to buy land and become self-sufficient,” he charges. “Utopianism satisfies the ‘back to the lander’ because they have land to construct their isolated utopia, and it satisfies the landlord because they are receiving money, but those who do not have money for country land are left in the same position as before, paying rent or fighting eviction.”[54]

In the 1870s, Ingalls became politically active again outside the personal sphere and started campaigns to repeal laws that protected land titles not based on personal occupancy. According to James J. Martin, “He identified capital as merely past labor and land frozen into a particular form and undeserving of increase in itself. To him the granting of a share of production to capital was placing a premium on past labor at the ­expense of present labor.”[55]

Many of Ingalls’s ideas were echoed in land struggles well into the next century. Ingallsian notions took a unique twist in the late 1800s with the rise of the conservation movement in the United States. This movement carried with it convictions that we, today, would consider contradictory. In fact, in our current age of increased environmental awareness, conservation seems like an innocuous—even essential—move toward preserving the natural world. Many wealthy, white Americans of the late-nineteenth and early-twentieth centuries believed the same thing. But the conservation movement, and its subsequent National Parks development, had catastrophic effects on indigenous peoples as well as poor whites across the country.

The conservation movement was born of a Vermonter named George Perkins Marsh, who, in 1864, published his seminal work Man and Nature, in which he discusses the importance of preserving the natural landscape and its pristine grandeur. He considered himself a forerunner of a burgeoning environmental ideology, and in many ways, he was. Marsh and his contemporaries, however, did not wish to live in constant commune with nature; rather, they were more interested in preserving it for weekend jaunts and occasional getaways from the stress and the brick of cities. Here, Marsh’s ideas begin to slip away from today’s understanding of integrated environmental consciousness. As Karl Jacoby observes in Crimes Against Nature, “The conservation movement existed partially to preserve social habits that dictated the contemporary model of masculinity: hunting and camping as alternatives to the ‘debasing pleasures of the cities.’” In this way, the wilderness was very much a man’s ­entertainment—particularly a wealthy white man.[56]

Though it would seem that the archetypal male might transcend socially understood differences such as class—and that romping in the forest and hunting wildlife might be equally enjoyed by rich and poor men alike—conservationists of the time actually “viewed members of the lower classes as lacking the foresight and expertise necessary to be wise stewards of the natural world.” Jacoby explains this contradiction in terms of the wilderness’s countervailing tropes of the time: the first being the “pastoral” trope, stressing “the simplicity and abundance of rural life”; and the second being the “primitive” trope, “focused on the backwardness and privations of rural life.”[57]

This dichotomy is illustrated in the story of property in the Adirondack region of New York. It began when, in 1883, New York State discontinued the sale of three million acres of its Upstate land. Two years later the region became the Adirondack Forest Preserve, and park rangers swore to defend and preserve the wilderness within. It was problematic then that it wasn’t realistically an empty backcountry: Locals had been living in the forests for generations. They chopped timber for fuel, and hunted, fished, and foraged for food—the Adirondack soil was too thin to support agriculture. Locals relied on the forest for all their resources, and as such they considered it to be part of the commons. Unaccustomed to cartographic boundaries, Adirondackers were disturbed to learn that the new park laws made every facet of their way of life a crime.[58] “Sports,” or recreational hunters from the city vacationing in the park, had more hunting options available to them because they were tourists. With an understanding of the dueling spheres of “the city life” and “the getaway,” park officials were more amiable to tourists appreciating nature (and re-creating “the imagined world of the American frontier”) than they were to the locals who unabashedly broke park rules. This preferential dynamic was repeated so frequently through the end of the nineteenth century that it created a massive wealth gap in the region. Jacoby describes it as having become a “place of abandoned farms and of grand new estates”—the latter owned by names as big as Rockefeller, Vanderbilt, and Morgan.[59]

Strangely, conservationists were under the impression that locals would welcome the changes because of the region’s history of poverty. They were surprised when residents demonstrated their disinterest in cooperating by lying to park rangers and by intentionally and sometimes maliciously breaking the law. When surveyors sought to mark property lines, residents would often act confused or purposefully mislead the surveyors. Other times, residents would destroy the boundary markers by burning or cutting down trees, or by otherwise removing the landmark that the surveyor had left behind.[60]

The Forest Commission’s second task—beyond protecting the forest—was demarcating forest boundaries and the private properties inside them. Discerning property lines and land titles, however, proved equally difficult. In addition to the non-cooperating locals, there was further title confusion as a result of logging companies in the area: Timber corporations would buy a piece of land, cut down all the trees, and then abandon it, leaving the property to be reclaimed by the state for non-payment of taxes.[61] To complicate matters further, planners had drawn the park perimeters around both legal and illegal dwellings. Many locals had, years earlier, found an unused piece of land and settled on it, neglecting to ever formally seek title—often because of the costs involved. This homestead ethic was based on the ideals of the commons and of an Ingallsian understanding that property was to be occupied and utilized; if a piece of land was unoccupied, then it was generally understood in Adirondack culture that the land was open to settlement. But, with the state’s sudden interest in the area in 1885, many of these homesteaders were overnight reclassified as squatters. There is no definitive data on the number of illegal residences at the time, but estimates range from 98 to 900—evidence of the state’s poor record-keeping. Surprisingly, squatted dwellings were not strictly a phenomenon among the lower classes; occasionally wealthy tourists would build summer homes on plots purchased illegally from locals who similarly had no right of title. Not surprisingly, however, the shanty-dwellers were the first to be evicted by the Forest Commission, while authorities tended to turn a blind eye to the politically well-connected vacationer squatters.[62]

After much resistance from squatters, the Forest Commission eventually put a hold on evictions for fear that angry locals would burn down the forest in retaliation. Instead, authorities focused on limiting new settlements and tried to ignore the old ones. According to Jacoby, because some squatters never left, certain plots in the region remain contested to this day.[63]

Unfortunately for authorities, hiring locals as park rangers was unavoidable as they knew the terrain the best, and with the new park rangers came their local allegiances. Foresters with such loyalties would often overlook criminal activity. Overzealous foresters were threatened with ostracism by their communities, and particularly problematic foresters might get mistaken for a deer and be shot “by accident.” Jacoby writes that “foresters played a dual role in the region: not only were they the means by which state power was projected into the countryside, but they were also the means by which local influence penetrated into the state. As a result, foresters had to navigate between several competing allegiances.”[64]

Inhabitants harbored similar hostilities toward private estate owners in the area. In 1903, Orrando Dexter—who was notorious for filing lawsuits against trespassers—was shot and killed as he drove his carriage down the once-public road now part of his estate. In response to this incident, security was heightened all over the park but particularly at private residences. Undeterred, locals tore down “no trespassing” signs, cut fences to release privately owned game, burned private parklands, and shot at guards. This brand of malicious reprisal led to lawsuits like Rockefeller v. Lamora, which eventually led to the park’s gradual absorption of private parklands into the grander state-owned preserve. While many residents preferred state ownership to private ownership, neither were ideal. Ingalls would have rejected either option, and indeed, inhabitants of the ­Adirondacks ceaselessly and remorselessly disregarded park laws in protest. [65]

Conservationists were convinced that if Adirondackers were left to do as they would, they would render the forest desolate and barren, for they lacked a sense of natural preservation. Inhabitants claimed that thery were simply exercising their “right to subsistence” by cutting wood for building and for burning, and by poaching animals for eating. Both sides of this argument teetered on the cusp of a new era in humankind’s relationship to nature: Conservationists saw humans as destroying select parts of the world (cities) with the burgeoning industrialism, and pinpointed the need for other select portions of the world (forests) to be preserved not unlike an artifact in a museum. Adirondackers, isolated from cities and from the Industrial Revolution, had a history of living off the land without pillaging it, so to them preservation tactics seemed unnecessary and bizarre.

But, as Jacoby points out, this was a transitional period for everyone in America, and even Adirondackers were not purely the subsistence ­livers they had once been:

If the persistence of this subsistence, nonmarket ideology illustrates the reluctance of many rural folk to embrace a completely capitalist orientation, it also reveals the uncertain ethical terrain Adirondackers had come to inhabit by the close of the nineteenth century. Residents might, in keeping with enduring agrarian notions of simplicity and self-sufficiency, give moral primacy to subsistence practices. But by the 1880s, none lived a completely subsistence lifestyle. Thus, as much as holding up subsistence as a moral ideal may have appealed to Adirondackers’ image of themselves as independent pioneers, it curtailed their ability to address the true dilemmas that they faced—issues such as how to interact with the market yet still preserve some element of personal independence or responsibility to the larger community.[66]

By preventing locals from utilizing forest resources, park authorities ushered Adirondackers into the wage-labor era: No longer able to rely on their surroundings for wood and for food, they were forced to work for wages with which to buy what used to be free of charge. If nothing else, the story of the Adirondacks was a tale of class war, to which environmental concerns were a pretext. This is a tricky plot for people today to make sense of because we are unsure which side we want to root for. We tend to align ourselves with the underdog squatters and timber poachers because we can empathize with them, but when we learn that angry locals senselessly killed moose and elk, and burned a million acres of park lands—“a symbol of their displacement and disempowerment”—to protest conservationists and perhaps rid themselves of their oppressors, suddenly we are conflicted about the role of the hero in this story.[67]

Despite the successes and failures of the nineteenth-century land reformers, and despite Ingalls’s noble idealism in regard to land occupancy, there was still a problematic element to homesteading that was unavoidable: The frontier (be it Upstate New York, Maine, or the West) was not empty wilderness as many Anglo-Americans of the time presupposed. When the goals of developers were not to conserve wilderness, they were to rapidly convert that wilderness into civilization. Either mode unavoidably adopts the old British argument that he who can use the land the most productively should have title to it, and anyone else is out of luck.[68]

That said, the lawlessness of the West appears to have been as mythical to settlers then as it is to Americans now. While pioneers were indeed entering somewhat uncharted territory and carving worlds for themselves from raw materials, John Phillip Reid argues that they still operated under the memory of law. They were “products of a legal culture” and continued to have the same expectations of each other and the same assumptions of property as if they were governed by the laws from their places of origin. These memories affected average behavior in the way that cultural customs and traditions dictate interactions with peers. One example Reid uses is the tendency for goods to be divided among groups according to the law of ownership rather than according to need, particularly on the Overland Trail. This is a replica of normal interactions under the conscious reign of formal law. When pioneers traveled beyond the reaches of such institutions, the memory of them persisted; “the remembrance was not only of things experienced, but of institutions that had only been observed, or perhaps only described.”[69]

Because Westerners had the potential to shape the law according to their (sometimes faulty) memory of it and according to the immediate needs of settlers (including squatters), American law had the potential to morph as it traveled across the continent. Indeed, adverse possession laws vary state to state and there is a visible trend of laxer requirements from east to west. For example, New Jersey requires sixty years of occupation to claim ownership, while Arizona requires only two. But Reid argues that the law did not change as much as it could have, despite the West’s alleged wildness. He describes the legal culture as one of “law by legislative command rather than custom, of rights secured by judicial direction rather than jury consensus, and of legal rules upheld by police enforcement rather than by community self-help.” In this climate of legal expectations, the courts would seem unlikely to support a squatter movement. As Reid describes, “the Anglo-American expatriates equated law with enforcement. For them, a ‘law of contract’ had no substance if the stipulated obligation could not be enforced. Fair dealing, reasonable price, adjustment, compromise, and accommodation were not enough.”[70]

This explains why the West was easily perceived as being “lawless” despite imported legal expectations. Westerners simultaneously believed in the sanctity of law and displayed “no real respect” for the government’s title to natural resources because that title was unenforceable, as were many of the supposed laws of the West. So what Westerners, like most Americans, actually believed in was enforcement. And because the West was new and lacking infrastructure, and the memory of a legal institution did not have the means to prevent settlers from breaking its remembered laws, Westerners harbored little respect for the system. This one-dimensional respect for enforcement perpetuates behavior that considers only artificial consequences. Questions of ethics weigh in decision-making less frequently than do questions of the risk of getting caught, even today.

While Peñalver and Katyal charge that breaking laws is a crucial step toward changing them, they also recognize that deterrent law enforcement—the system that pioneers recalled and re-created, and the system that we today continue to revere—can be harmful and self-defeating. “Deterrent models of punishment,” they write, “are likely to call for levels of punishment that overdeter or preclude certain forms of productive transgression.” Indeed, the events of the homesteading era suggest that direct action is a viable and perhaps even exclusive method of informing property law. “In cases of persistent, widespread disobedience, citizen behavior communicates vital information to property owners and to the state, indicating that some element of a property law or of the owner’s use of the property may be out of date, unjust, or illegitimate in some respect.”[71]

With this notion in mind, we move into the modern era of housing justice struggles.

a. The state eventually favored speculators, who bought Maine land in large blocks to divide up and parcel out.

b. History is filled with such instances of (usually white) men disguising themselves, often as Indians and sometimes even as women, to avoid incrimination during mob actions. So despite the novel sound of it, this tactic was not unique to anti-renters.

c. Though their reputation had been marred by the stray bullet incident, anti-renters asked themselves, “Has landlordism never caused death?”

d. The duration of occupation necessary to claim adverse possession in New York state has since been reduced to ten years. For a table of adverse possession limitations by state see Appendix E.

e. We find similar phenomena in legislative bodies today when responding to homelessness and the “housing crisis,” as discussed in Chapter 4. It would seem that the tendency of written law to cripple the lawmakers themselves is a ­pathology that transcends time and precipitates injustice onto every generation.

f. Interestingly, Taylor notes that he “avoided the labels ‘radical’ and ‘conservative’ in favor of the more appropriately ambiguous ‘agrarian.’ On the one hand, the land rioters do not seem ‘radical,’ in the twentieth-century sense of the word, because they counted on a defensive localism to protect their interests, instead of pressing a systematic program for restructuring social institutions. On the other hand, the label ‘conservative’ does not fit comfortably atop settlers who nurtured a labor theory of value and who perceived a chronic class struggle between laboring producers and parasitical gentlemen. The agrarians behaved and thought neither as radicalized proletarians nor simply as backward-looking traditionalists. They hoped that their relatively diffuse and restrained tactics (dictated by their limited means and rural dispersion) would be enough to secure important social consequences: the preservation of America as a land of small producers able to support their families free from domination by an employer or landlord” (p. 6–7). Taylor, Alan. Liberty Men and the Great Proprietors. Chapel Hill: ­University of North Carolina Press, 1990: p. 4–6.

Taylor then poses the question, “Were they promoting, or resisting, America’s development as a capitalist society?” He eventually answers himself by explaining that “agrarians hoped to sustain American capitalism at a simple stage of development where households bought and sold the fruits of their labor without having to sell their labor itself” (p. 8).