When I first arrived at Homestead National Monument of America last year I was surprised at the diversity of homesteaders. The pictures in the museum and archives showed women, African Americans, American Indians, and immigrants homesteading. I, quite frankly, was amazed at the progressive nature of this legislation passed in 1862. 1862 is not a year I think of as being the most socially tolerant. But, I have come to realize the liberal nature of the Homestead Act is not always applicable when you view it on a historical timeline. In 1862, when the Act was passed, and on January 1, 1863, when the legislation became law the United States was a very different place than it would become less than a decade, half a century, and a century later.
It is only when you place the Homestead Act within its historical context that the progressive nature of the legislation emerges. What about African Americans? Strictly speaking, by the letter of the law, when the Homestead Act went into effect in 1863, African Americans were NOT allowed to homestead. How could this be, so much has been written about African American homesteaders? The answer is actually relatively simple and it can be found in the very first line of the Homestead Act:
“That any person who is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, or who shall have filed his declaration of intention to become such, as required by the naturalization laws of the United States, and who has never borne arms against the United States Government or given aid and comfort to its enemies, shall… be entitled to enter one quarter-section or a less quantity of unappropriated public lands.”
I am only concerned here with the section that said you had to be “a citizen of the United States” or file a declaration of intention to become a citizen. This is important because in 1863 when the legislation took effect, African Americans were not allowed to become U.S. citizens or declare their intentions because it was not legally possible for them to obtain citizenship. African American’s were not allowed to become citizens until the Civil Rights Act of 1866 was passed, granting citizenship to people born in the United States regardless of race or color; an Act that then had to be backed by an amendment to the U.S. Constitution two years later when the 14th Amendment was ratified. The Homestead Act had been on the books for three years before African Americans were allowed to become U.S. citizens, thus allowing them to homestead. So, in effect, when people say only white people were allowed to homestead, they are technically correct IF they are referring to the first three years the legislation was on the books.[1]
It may or may not have been the intention of the authors of the Homestead Act to consider a future United States that included African American citizens who would be allowed to homestead when they drafted the legislation, this, I’m sure, would be impossible to determine. But, the Homestead Act did not exclude African American’s, thus leaving the possibility open, in 1862, to accommodate future African American homesteaders in the event that they would one day become citizens. This became reality in 1866. So, indeed, all homesteaders prior to 1866 were white, but for the remaining 120 years that the Homestead Act was a law African Americans, indeed, did homestead.
However, it is interesting to note that in 1872 the Homestead Act was extensively updated. Updates to a law are known as “Revised Statutes”. Notably, in section 2302 of the Revised Statutes of the Homestead Act, it became illegal to make a “distinction on account of race or color.” The intention of this update was to ensure that African Americans were allowed to homestead and it directly contradicts those who claim that the Homestead Act was only for white people.[2]
Naturally, since I talked about citizenship today, I will follow up next with immigrants that wanted to homestead. Could anybody truly come to the United States and homestead? Find out soon!
[1] American Memory Project, “A Century of Lawmaking for a New A Nation,” Library of Congress, http://memory.loc.gov/ammem/amlaw/lawhome.html. Please visit this website if you are interested in reading the legislation mentioned, including the Homestead Act and the Civil Rights Act of 1866.
[2] Revised Statutes of The United States, 43rd Cong., 1st sess. (1873) , Sec. 2302, 424.
