The Homestead Act of 1862

Signed into law in May 1862, the Homestead Act opened up settlement in the western United States, allowing any American, including freed slaves, to put in a claim for up to sixty-five free hectares of federal land. Most of the homesteads were west of the Mississippi River. By the end of the Civil War, fifteen thousand homestead claims had been established, and more followed in the post-war years. Eventually, one point six million individual claims would be approved; nearly ten percent of all government held property. The Homestead Act remained in effect for more than one hundred years. The final claim, for thirty-two hectares in south-eastern Alaska, was approved in 1988.

In our research on Space Law and Public International Law, concerning the non-appropriation principle and the hot topic of mining legal resources, such as asteroids or the Moon, let’s look at the homestead principle, by which one gains ownership of an un-owned natural resource by performing an act of original appropriation, and the Homestead Act of 1862.

The homestead principle

The homestead principle is the principle by which one gains ownership of an un-owned natural resource by performing an act of original appropriation. Appropriation could be enacted by putting an un-owned resource to active use (as with using it to produce a product), joining it with previously acquired property or by marking it as owned (as with livestock branding). Proponents of intellectual property hold that ideas can also be homesteaded by originally creating a virtual or tangible representation of them. Others however argue that since tangible manifestations of a single idea will be present in many places, including within the minds of people, this precludes their being owned in most or all cases.

Common law provides the ad coelum doctrine by which landlords own everything below and above the land, up to the sky and below the Earth to its core, with the exception of volatile minerals such as natural gas. The rules governing what constitutes homesteading were not specified by common law but by the local statutory law.

The Homestead Act of 1862

The Homestead Act (May 20, 1862) set in motion a program of public land grants to small farmers. Before the Civil War, the southern states had regularly voted against homestead legislation because they correctly foresaw that the law would hasten the settlement of western territory, ultimately adding to the number and political influence of the Free states. This opposition to the homestead bill, as well as to other internal improvements that could hasten western settlement, exacerbated sectional conflicts. Indeed, the vision of independent yeomen establishing homesteads on the prairies was offered in the political rhetoric of the 1850s as a vivid contrast to the degradation of slave labour on southern plantations. A homestead bill passed the House in 1858 but was defeated by one vote in the Senate; the next year, a similar bill passed both houses but was vetoed by President James Buchanan. In 1860, the Republican platform included a plank advocating homestead legislation.

The Homestead Act of 1862 provided that any adult citizen (or person intending to become a citizen) who headed a family could qualify for a grant of one hundred and sixty acres of public land (sixty-five hectares) by paying a small registration fee and living on the land continuously for five years. If the settler was willing to pay one point twenty-five American dollar an acre (zero point four hectare), he could obtain the land after only six months’ residence.

But the law did not provide the new beginning for urban slum dwellers that some had hoped; few such families had the resources to start farming, even on free land. The grants did give new opportunities to many impoverished farmers from the East and Midwest, but much of the land granted under the Homestead Act fell quickly into the hands of speculators. Also, over time, the growing mechanisation of American agriculture led to the replacement of individual homesteads with a smaller number of much larger farms.

Space Legal Issues

Let’s recall that Article II of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967) states that “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.

Also, Article 11 of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (opened for signature on December 18, 1979) enounces that “1. The Moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article. 2. The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means. 3. Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the Moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the Moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article. 5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement”.

As a conclusion, the non-appropriation principle represents one of the fundamental rules of the Space Law System. Since the beginning of the space era, it has allowed for the safe and orderly development of space activities. Nowadays, however, the principle is under attack. Some proposals, arguing the need for abolishing it in order to promote commercial use of outer space are undermining its relevance and threatening its role as a guiding principle for present and future space activities. Should we suggest a new interpretation of the non-appropriation principle that is based on the view that this principle should be regarded as a customary rule of international law of a special character, namely “a structural norm” of international law? We hope these questions will be discussed at the Legal Subcommittee of the United Nations’ Committee on the Peaceful Uses of Outer Space (COPUOS).