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Topeka



KIRKE MECHEM JAMES C. MALIN NYLE H. MILLER

Editor Associate Editor Managing Editor



CONTENTS



PAGE

THE ADMINISTRATION OF FEDERAL LAND LAWS IN WESTERN KANSAS,
1880-1890: A FACTOR IN ADJUSTMENT TO A NEW ENVIRONMENT

George L. Anderson, 233

THE REV. Louis DUMORTIER, S. J., ITINERANT MISSIONARY TO

CENTRAL KANSAS, 1859-1867 Sister M. Evangeline Thomas, 252

With Father Dumortier's map of Catholic mission stations in the St. Mary's
area (1866), facing p. 264.

THE ANNALS OF KANSAS: 1887 271

BYPATHS OF KANSAS HISTORY 298

KANSAS HISTORY AS PUBLISHED IN THE PRESS 302

KANSAS HISTORICAL NOTES 304

The Kansas Historical Quarterly is published in February, May, August and
November by the Kansas State Historical Society, Topeka, Kan., and is dis-
tributed free to members. Correspondence concerning contributions may be
sent to the managing editor at the Historical Society. The Society assumes no
responsibility for statements made by contributors.

Entered as second-class matter October 22, 1931, at the post office at To-
peka, Kan., under the act of August 24, 1912.



THE COVER

The picture, showing the loading of cattle in the Kansas
Pacific (now the Union Pacific) yards at Abilene, was sketched
by the Kansas artist, Henry Worrall, for Frank Leslie's Illustrated
Newspaper, New York, August 19, 1871. The original Leslie's
caption was: "Kansas. Transport of Texas Beef on the Kansas-
Pacific Railway Scene at a Cattle Shoot in Abilene, Kansas."
Photo courtesy of Dr. Robert Taft.



THE KANSAS
HISTORICAL QUARTERLY

Volume XX November, 1952 Number 4

The Administration of Federal Land Laws in

Western Kansas, 1880-1890: A Factor in

Adjustment to a New Environment 1

GEORGE J^. ANDERSON

THE careful interpretive studies of James C. Malin, 2 some of
which have appeared in earlier issues of this Quarterly* have
demonstrated that adaptation to the physical characteristics of the
grassland region was the greatest single problem confronting the
settlers in the western half of Kansas. Malin has shown that the
successful types of adaptation were the results of folk-processes; and
that the most fruitful technique for the historian is to study a
community in its entirety, with the emphasis upon the role of indi-
viduals as portrayed in local newspaper and manuscript sources.

This study involves only certain selected phases of the question.
It is based upon the assumption that the administration of the fed-
eral land laws was an important component of the problem of adjust-
ment. It is intended to illustrate the use that can be made of certain
types of archival materials and to provide a background for further
studies. It does not represent a commitment to the point of view
that fraud and speculative activities constitute the most important
aspects of the problem.

It should be clear that the history of the administration of the
land laws cannot be reduced to some capsule-like generalization

DR. GEORGE LA VERNE ANDERSON is chairman of the history department at the Uni-
versity of Kansas, Lawrence.

1. An earlier version of this paper was presented at the 1944 meeting of the Mississippi
Valley Historical Association.

2. "The Adaptation of the Agricultural System to Sub-humid Environment," Agricul-
tural History, Baltimore, v. 10 (1936), July, pp. 118-141; Winter Wheat in the Golden Belt
of Kansas: A Study in Adaptation to Subhumid Geographical Environment (Lawrence,
1944); The Grassland of North America: Prolegomena to Its History (Lawrence, 1947);
"Grassland, 'Treeless,' and 'Subhumid': A Discussion of Some Problems of the Terminology
of Geography," The Geographical Review, New York, v. 37 (1947), April, pp. 241-250.

3. "The Turnover of Farm Population in Kansas," v. 4 (1935), November, pp. 339-
372; "The Kinsley Boom in the Late Eighties," v. 4 (1935), February, May, pp. 23-49 and
164-187; "J. A. Walker's Early History of Edwards County," v. 9 (1940), August, "Intro-
duction," pp. 259-270; "An Introduction to the History of the Bluestem-Pasture Region
of Kansas: A Study in Adaptation to Geographical Environment," v. 11 (1942), February,
pp. 3-28.

(233)



234 KANSAS HISTORICAL QUARTERLY

that will faithfully portray developments in even a part of one state,
much less accurately reflect developments in all the states and terri-
tories west of the Missouri river. For too long a time a summary
of the laws padded with quotable portions of congressional debates,
and seasoned with the more dramatic generalizations of officials in
Washington, has passed for a history of the subject. Even this
formula is so diluted or distorted in some instances as to leave the
impression that the operation of the federal land laws was relatively
unimportant. In pursuing the study of a subject in an entirely
different field Joseph Schafer remarked:

The author's chief reason for calling sharp attention to the futility of the
speculative method hitherto commonly used by historians in dealing with
subjects of this kind is to protest against an outworn methodology. The "guess-
ing game" is no longer permissible to those who claim the right to be called
historians, in the American field at least. Like Hamlet, we demand "proofs
more relative" than those supplied by ghosts. 4

Much of the historical literature in the field of public land studies
is vulnerable to this criticism. Also, it cannot escape the judgment
Malin makes concerning population studies that are based exclusively
upon printed federal materials: "As in outline surveys or general
histories, it is writing from the top down and partakes too much of
the fitting of generalizations to particular cases rather than arriving
at the generalization from the study of the underlying detail." 5

Another characteristic of many of the historical accounts of the
public lands which this study seeks to avoid is the almost universal
preoccupation of the writer with the large speculator, the "bonanza
farmer/' the cattleman or the corporation. Thus Paul W. Gates
excludes from a study of the homestead law the "many farmers who
speculated in a small way/' 6 The histories of the range cattle indus-
try tend to limit land frauds to fencing the public domain and the
use of hired or dummy entrymen. 7 The authors of a widely used
general history accept this point of view so completely that they
are able to say, "Land frauds in the cattle kingdom were so universal

4. "Who Elected Lincoln?" The American Historical Review, New York, v. 47
(1941), October, p. 63.

5. "Local Historical Studies and Population Problems," in Caroline F. Ware (ed.),
The Cultural Approach to History (New York, 1940), p. 300.

6. "The Homestead Law in an Incongruous Land System," The American Historical
Review, New York, v. 41 (1936), July, p. 652.

7. Ernest S. Osgood, The Day of the Cattleman (Minneapolis, 1929), pp. 190-215;
Ora B. Peake, The Colorado Range Cattle Industry (Glendale, Cal., 1937), pp. 69-84.
Louis Pelzer, The Cattlemen's Frontier (Glendale, Cal., 1936), pp. 173-191. The reports
of the registers and receivers of the local land offices and those of special agents that were
sent to the General Land Office during October and November, 1884, are devoted almost
exclusively to these forms of fraudulent practice. "Report of the Commissioner of the
General Land Office," 1885, in Report of the Secretary of the Interior, House Ex. Doc. No. 1
(serial no. 2,378), 49 Cong., 1 Sess. (1885-1886), v. 1, pp. 202-216.



FEDERAL LAND LAWS IN WESTERN KANSAS 235

as to make impertinent the suggestion of mere individual wrong-
doing." 8 This relegation to the realm of the "impertinent" leaves
the individual settler a shadowy figure, always present, but rarely
made the specific object of attention. How he came to be in a
particular community; how he obtained his land; whether he was a
permanent settler, transient drifter or would-be speculator; how the
operation of the land laws affected his adjustment to his environ-
ment if he stayed; these and many other questions have been
answered only in a fragmentary way if at all.

The nature of the problem of research in this field, if printed
federal materials are used exclusively, can best be emphasized by
quoting conflicting statements of two commissioners of the General
Land Office. Each had access to the same type of material and
each had come to the office from the Middle West after long periods
of public service and political experience. William Andrew Jack-
son Sparks was a member of the Democratic party and an anti-
monopoly crusader; 9 his successor, William M. Stone, was one of
the organizers of the Republican party. 10 Said Commissioner
Sparks in 1885, after six months in office:

I found that the magnificent estate of the nation in its public lands had been
to a wide extent wasted under defective and improvident laws and through
a laxity of public administration astonishing in a business sense if not culpable
in recklessness of official responsibility. ... I am satisfied that thousands
of claims without foundation in law or equity, involving millions of acres of
public land, have been annually passed to patent upon the single proposition
that nobody but the government had any adverse interest.

The vast machinery of the land department appears to have been devoted
to the chief result of conveying the title of the United States to public lands
upon fraudulent entries under strained constructions of imperfect public land
laws and upon illegal claims under public and private grants. 11

Following these introductory remarks there are estimates of fraud
under the several land laws ranging from 40% in the case of the home-
stead law to 100% under the commutation clause of that law. 12

Thus Commissioner Sparks, using materials accumulated by the
preceding administrations, drew a blanket indictment that was

8. Samuel Eliot Morison and Henry Steele Commager, The Growth of the American
Republic (New York, 1942), v. 2, p. 94.

9. There is a brief biography by Harold H. Dunham, in the Dictionary of American
Biography (New York, 1946), v. 17, pp. 434, 435.

10. Benjamin F. Cue, History of Iowa (New York, 1903), v. 4, p. 253.

11. "Report of the Commissioner of the General Land Office," 1885, loc. cit., pp.
155, 156.

12. Ibid., p. 223. In this report reference is made, pp. 201, 202, by Commissioner
Sparks to his order of April 3, 1885, suspending the further entry of land in a group of
Western states and territories including western Kansas. This order remained in effect
until April 6, 1886, when it was revoked upon direct orders of Secretary of the Interior
L. Q. C. Lamar.



236 KANSAS HISTORICAL QUARTERLY

tantamount to saying that the settlement and development of the
Western plains prior to 1885 was largely based upon fraud.

The quotation given above is reasonably characteristic of those
that have gained entrance into the general histories, but in fairness,
Commissioner W. M. Stone should be heard in rebuttal. Making
direct reference to the Sparks report of 1885 and quoting several
paragraphs from it, he said:

This wholesale arraignment of claimants on the public domain should not
have been made without the most conclusive evidence to sustain it. It con-
tains in express terms, without discrimination and without exception, a charge
of the gravest character against these hardy and courageous pioneers of our
advancing civilization well calculated to challenge the credulity of the lowest
order of American intellect.

This astounding condition of things . . . may or may not have existed
during his administration, but it affords me infinite pleasure to inform you that
during my more than four months of intimate connection with the duties of
this office I have found no evidence of general misconduct on the part of our
western settlers, and have failed to discover any general system of fraud pre-
vailing upon the government in reference to the public domain. Instances of
attempted fraud are to be expected, but justice requires me to say that they
are exceedingly rare and notably exceptional. I speak now of the individual
settler.is

It is elementary to point out that both of the honorable commis-
sioners could not be right and that the truth must lie somewhere be-
tween the two extremes. It is more important to note certain
factors, other than political, that may serve to explain their dis-
agreement. The General Land Office, although charged with the
responsibility of administering a landed heritage of imperial propor-
tions, was handicapped by an undermanned staff, an antiquated
building, a pint-sized budget and an overwhelming flood of busi-
ness. 14 The information that came to Washington from the cutting
edge of settlement was from special agents with too little time to

13. "Report of the Commissioner of the General Land Office," 1889, in Report of the
Secretary of the Interior, House Ex. Doc. No. 1 (serial no. 2,724), 51 Cong., 1 Sess. (1889-
1890), v. 1, p. 9. Commissioner Stone was much too optimistic. Statements that he
thought would challenge "the credulity of the lowest order of American intellect" have
come to be accepted almost without question as accurate descriptions of the administration
of the federal land laws. There is no question concerning the existence of practices that
the commissioners described as fraudulent. The question is whether they were well nigh
universal and characteristic. N. C. McFarland, the predecessor of Sparks, wrote on August
5, 1881, to J. R. Hallowell, United States district attorney for Kansas, "This fraudulent
entry business has become too common as I have reason already to know." Correspond-
ence of the United States District Attorney's Office, Kansas State Historical Society manu-
script collections. Unless otherwise indicated all correspondence used in this paper is con-
tained in this collection.

14. Harold Hathway Dunham, Government Handout: A Study in the Administration
of the Public Lands, 1875-1891 (New York, 1941), pp. 124-144. The chapter cited is
entitled "The Inadequate Land Office." This study, which is a product of the seminar of
Allan Nevins at Columbia University, illustrates a statement made earlier in this paper. The
opening sentence of the paragraph in the preface, p. v., which describes the bibliography
that was used is as follows, "Emphasis on the administration of the public lands did not
call for an exhaustive analysis of the literature of the West."



FEDERAL LAND LAWS IN WESTERN KANSAS 237

do an enormous piece of work; from partisans in the local land
offices; from cranks and malcontents; as well as from honest settlers
with legitimate complaints and views. The alternate advance and
recession of settlement produced by alternate periods of drought
and rainfall brought a complex mixture of humanity to an unfamiliar
environment and piled entry upon entry, relinquishment upon re-
linquishment and contest upon contest until even the plat books
were hopelessly out-of-date and the basement and corridors of the
land office were piled high with unclaimed patents, unsettled con-
tests and unstudied correspondence. 15 "Going back to the wife's
folks" may be just a convenient euphemism to the historian, but it
more than doubled the work of the General Land Office. The
sequence of entry, abandonment without record, relinquishment
or sale may have added up to fraud in the humid regions farther
to the east and south; but in western Kansas it may have meant
that optimistic settlers, becoming discouraged by death, drought,
dust and grasshoppers, were giving up the fight and were only
trying to salvage enough from their battles with and on Uncle
Sam's land to get out of the country. 16 For this reason, among
others, the emphasis in this study is shifted from Washington to the
local scene, from federal officials to individual entrymen, from the
public domain of several millions of acres to the individual quarter
section of 160 acres. Obviously broader questions must be consid-
ered, but the center of attention is the individual entryman on a
particular quarter section of land. 17 This paper is, in a sense, a pre-
liminary move in the direction of studying the history of the opera-
tion of the federal land laws in the western half of Kansas from the
ground up. 18

15. Any researcher with a specific project in hand who has used even a small portion
of the mass of material in the General Land Office section of the National Archives, Wash-
ington, D. C., with the assistance and guidance of skilled personnel and modern technical
aids, will appreciate the difficulties that confronted the staff of the General Land Office when
the public lands were being entered at the rate of several millions of acres annually.

16. See article entitled "Governmental Evictions in Kansas" in the Kirwin Independent,
July 7, 1887, for a suggestion that the homesteader was really just betting his $14 against
Uncle Sam's 160 acres that he could live on the land for five years.

17. A study somewhat comparable in objective was made in 1887 at the request of
Commissioner Sparks. He directed that a thorough study be made of representative town-
ships by special agents and inspectors to discover how the several land laws operated in
particular instances. After giving specific directions for carrying out the study, Sparks
stated its purpose as follows: "The purpose of these examinations is to ascertain what
becomes of public land taken up under the public land laws, and the general character
of the different classes of entries on different classes of land, and to what extent they are
made to sell or mortgage, or for the benefit of land and loan agents, speculators, syndicates,
and corporations." "Report of the Commissioner of the General Land Office," 1887, in
Report of the Secretary of the Interior, House Ex. Doc., No. 1 (serial no. 2,541), 50 Cong.,
1 Sess. (1887-1888), v. 1, p. 144.

18. Almost without exception the examples selected involve entries west of the 98
meridian. The principal local land offices for the area were located at Wichita, Salina,
Concordia, Cawker City, Kirwin, Larned, Garden City, Hays, Wakeeney, Colby and
Oberlin.



238 KANSAS HISTORICAL QUARTERLY

Reduced to its simplest term, the process of alienating land from
the public domain to private ownership under the pre-emption and
homestead laws consisted of three steps: settlement, residence and
improvement. The timber culture act required a sequence of
breaking, planting and cultivating. The performance of these
various activities had to be verified before the local land officers by
the entryman through the filing of sworn affidavits and the sworn
testimony of two witnesses. Indeed, there was so much swearing
in the process that it is reminiscent of the medieval practice of corn-
purgation or oath helping. 19 It was this same abundance of swear-
ing that made perjury the most frequent offense under the land
laws. Forgery was quite prevalent, but it was the swearing to the
truth of the forged statement that made it actionable. If, in the
judgment of the officers of the local land office, the final proof was
satisfactory a final certificate was issued, and if no contest had been
filed the entry would be reported to the General Land Office for the
issuance of the patent. If the entry was contested the case was
heard in the first instance at the local land office with the right of
appeal to the commissioner of the General Land Office and ulti-
mately to the Secretary of the Interior. 20 Under some circumstances
entries that had been suspended because of the failure of the entry-
man to comply with the law could be referred to the Board of
Equitable Adjudication for final determination. 21 The almost
limitless variation of this process of entry, proof, contest, appeal
and patent; the numerous technical features of the laws; the fre-
quent contradictions in the interpretations of the laws and the
administrative procedures used in enforcing them imposed heavy
burdens upon the individual entryman. In nearly two-thirds of
the suspended entries referred from the area under consideration

19. The following contemporary comments suggest that the act of swearing to the
truth of statements contained in land entry papers had become so commonplace that it had
lost its value as an inhibitant to fraud: "The fact is land law is almost disregarded. The
people make affidavits much as they eat pie without any regard for their moral digestion."
Frank Thanhouser, Garden City, to W. C. Perry, May 1, 1886. "It is a positive fact that
a class of land lawyers in this country tell their clients that there is no danger of getting
into any trouble by swearing what they please and a certain class are acting accordingly
to the annoyance of honest settlers. . . ." Charles Morrison, Hillside, to W. C. Perry,
June 25, 1887. "There has been to much looseness in these land claims and many persons
think they are perfectly safe to swear to anything in a land claim or entry that in those
cases false swearing is no crime this idea which is quite prevalent should be corrected and
those persons who are disposed to swear falsely should be taught that it is perjury. . . ."
L. V. Hollyfield of Cherryvale, to J. R. Hallowell, March 23, 1880. "Our atty's here
claim there is no law against perjury and that there never was a party sentenced to the
Pen. for this kind of false swearing in the state of Kansas. They argue this way: that a
man is compelled to swear falsely in order to start a contest and whenever a party is com-
pelled to swear in order to start a suit it is not considered a crime. . . . This presi-
dent of affairs has existed in this county until perjury is considered witty and cute." C H
Barlow, Goodland, to W. C. Perry, April 12, 1888.

20. The contest division was established in 1887 upon the recommendation of Com-
missioner W. A. J. Sparks. It was designated Division H. "Report of the General Land
Office," 1887, loc. cit., pp. 435-438.

21. There is no readily available source of information concerning this agency.



FEDERAL LAND LAWS IN WESTERN KANSAS 239

to the Board of Equitable Adjudication, "ignorance of the law" was
the reason given for failure to make proof within the required
period of time. 22

The position of the individual entryman was further weakened
by the fact that the federal land laws did not make adequate pro-
vision for the punishment of criminal fraud. So weak was the
position of the government that W. C. Perry, United States district
attorney, wrote warningly to a United States court commissioner:
"I write this letter not for public use, as it is better not to let every
one know the weakness of the federal statutes with reference to the
punishment of frauds against the public domain." 23 Even the
avenue of prosecution for perjury was so restricted as to permit all
but the most glaring cases to go unpunished. In discussing a land
case Perry defined perjury as'"wilful and corrupt swearing to some
material matter, which was known at the time by the party so
swearing to be untrue." 24 It had to be "positive, unequivocal, ma-
licious and knowingly false." 25 There had to be proof that the
alleged acts were intended to and did actually defraud the United
States and not merely a private individual. 26 Moreover it should
be noted that the statute of limitations barred prosecution after
three years had elapsed 27 and that in all cases where the land in-
volved had been passed to patent the district attorney was helpless
and could prosecute only upon orders from the Attorney General,
who in turn could act only if requested to do so by the Secretary

22. H. Booth, former receiver of the Lamed land office, expressed the opinion that not
one settler in a thousand could fill out the entry and proof papers correctly without assis-
tance from an attorney. Larned Chronoscope, July 10, 1885. The editor of the paper
agreed with Booth. The comments were inspired by the order issued on June 24, 1885,
by Commissioner Sparks which curtailed the activities of land attorneys. Every suspended
entry referred to the Board of Equitable Adjudication was of course open to contest. The
fact that such a large number of vulnerable entries escaped contests has caused this writer
to study the operations of the board in some detail.

23. W. C. Perry to J. M. Tinney, U. S. commissioner at Kirwin, April 28, 1886. The
letter was written from Topeka and concerned the D. N. Whipple case. On October 10,
1885, Perry had written to A. H. Garland, Attorney General of the United States, request-
ing more assistance because "... a large portion of the State is, or, rather, formerly
was public domain and many cases have, and are arising out of frauds and perjuries



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