How Nebraska’s federal land entered the private domain

Just one month apart, in 1864, Congress passed the acts enabling the residents of the Nevada and Nebraska territories to apply for statehood.

Each act had exactly the same disclaimer clause. Under that clause, each territory’s residents “agree[d] and declare[d] that they forever disclaim all right and title to the unappropriated public lands lying within said territory…”

That disclaimer clause, clearing title to the unappropriated land in each territory, opened the door for Congress to sell or otherwise dispose of that land — and thus to open great expanses of the soil to settlement, commerce, the building of communities and, eventually, to state and local taxation.

In Nebraska, Congress allowed that entire process to occur.

In Nevada, it did not.

Thus, in the Silver State today, the federal government still occupies approximately 87-plus percent of the land — while in Nebraska, the Cornhusker State, it is virtually none.

Which naturally raises questions: Why was Nebraska so much more successful in getting Congress to follow through and dispose of those lands? Where did Nebraska get the leadership, the intelligence and understanding and/or the political clout to accomplish that?

Those questions were put by Nevada Journal to the Nebraska State Historical Society, and John Carter, a senior historian with the society, responded.

“There’s a real difference — and I’ve done a lot of work on this — there’s a real difference between Nebraska and the states west of it, including Nevada,” he said.

“What we’re looking at is the result of two different visions of how land works.”

Going all the way back to 1570, under Spanish Mexico, ranching in what would become Nevada and the Western states consisted of, said Carter, a cluster of buildings inside a large extent of free-range land.

“Ranchers would put their cattle out on the range and let them run around, and then periodically go round them up and bring them in.

“So there the expectation was that there was going to be free government land. And if you’re going to raise cattle, you did not have the overhead of land ownership and land management. That was the government’s problem. And that was the expectation of everybody in the cattle industry.”

Nebraska, on the other hand, notes Carter, was settled by “a whole bunch of these Jeffersonian yeoman farmers who pushed from the East to the West. And they first settled the eastern half of the state, which is great farm land, just tremendous farmland.”

Soon, the cattle people, in the western part of the state, “were in a distinct minority. They were just outvoted.”

Then, “around 1905, a United States Congressman from eastern Nebraska, by the name of Moses Kincaid, got a bill pushed through Congress that created a new version of the Homestead Act.”

Under the original Homestead Act of 1862, any head of household who lived for five years on public-domain land where the federal government was obligated to extinguish title received 160 acres. Under the Kinkaid Act, however — and only applying to settlers in the western part of Nebraska — the gift would be 640 acres.

“Even though that was still too small for effective ranching,” said Carter, “people poured out there, and through the Kinkaid Act, brought all of that land into the private domain.

“And over time, every scrap of property got brought into the private domain. I don’t think we’ve got 10 acres of BLM land in Nebraska. That’s probably an exaggeration, but most of the federal land we have is in the form of things like the wildlife refuge up at Fort Niobrara. They’re all park lands or wildlife preserves or things like that.”

Kinkaid himself understood something that the U.S. Congress — whether in the 18th, 19th or 20th centuries — has virtually never been able to collectively grasp. It is that livestock in the arid American West, and thus the ranching businesses that run them, need extended land upon which the livestock can range — far more than the original Homestead Act allowed.

Thus, the initial form of his legislation, as Kinkaid introduced it, allowed homesteaders in Western Nebraska to receive, for their efforts, even more than 640 acres after five years.

“Kinkaid,” notes the website, “originally tried to get more land into the act, but Congress representatives from the crowded eastern states couldn’t fathom why anyone would need so much space.” 

Thus, in the clash of visions — using land for farming or for extended-range ranching — the U.S. Congress, in its local, Eastern-based myopia, could only understand, and so allow, the former.

Ironically, that very myopia of Eastern politicians was what allowed Nebraska’s Western ranches to grow to the expanse necessary for profitable operation.

Since even 640 acres was too little to sustain the Kinkaid-Act allotments, most of the “Kinkaiders,” as they were known, soon went bust — allowing the ranchers of Nebraska’s Sandhills grasslands to purchase those allotments inexpensively.

Steven Miller is the managing editor of Nevada Journal, a publication of the Nevada Policy Research Institute. For more in-depth reporting, visit and

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