Jason Lothrop | 1856
Settlers’ encroachment on Native lands after the Revolution created problems for the U.S. government as well as for Native people. Federal authorities found themselves caught between the claims of settlers and their treaty obligations to Native nations, which held considerable power. Jason Lothrop was among a group from New York who created a joint-stock company to settle near present-day Kenosha, Wisconsin, even though those lands were not yet opened for settlement. Moving there, building houses, and working the land made them trespassers, in violation of federal law and the authority of the U.S. Constitution. But settlers, who saw themselves as acting in the public interest, defended the legality of their actions, pledged mutual support through claimants’ unions, and demanded that the federal government recognize their claims with preemption statutes, which elevated their claims over all others, based in occupancy—even though their presence on the land was in violation of federal law. Inundated with such claims, Congress generally accommodated settlers, ignoring claims to occupancy made by Native people who had been there long before and even the claims of those who purchased the lands through lawful means. In 1841, the U.S. Congress passed a general preemption statute, which eliminated the need for individual preemption requests.
Class of 1921 Bicentennial Professor in the History of American Law and Liberty, and Professor of History at Princeton University
E. Claiborne Robins Distinguished Professor of Law at the University of Richmond
Early in the winter of 1834, a few persons indulging in a wish to emigrate to the West, made known to each other their determination. . . . . The first object was to ascertain who would go; and the proposal was made to form a company, in order to render the removal as cheap and pleasant as possible, and that the company so formed, might locate at some important point, and there make a town, and form a community of the right sort. . . and a committee was appointed to draft a Constitution for the company .. .
Constitution, Art. 2. And Art. 3. – The capital stock of the Company shall be eight thousand dollars, to be divided into shares of ten dollars each. . . The capital stock when paid in, shall be invested in the purchase of lands, improvements thereon, and claims thereto, in any of the Western States or Territories, and in such other manner as the company shall, in pursuance of their general object, in regular meeting direct.
The explorers, on coming West, made their first attempt to secure a location at Milwaukee, but finding . . . others on the ground with whom they could make no compromise, they went south to Root River, where they also found claimants. . . . for some reason [their proposals] were rejected amidst unkind feelings. . . . . [Two of the men] fixed on the mouth of Pike River for a habitation [where they staked out claims and built houses].
Whereas, a union and co-operation of all the inhabitants will be indispensably necessary, in case the pre-emption law should not pass, for the scouring and protecting of our claims: And whereas, we duly appreciate the benefit which may result from such an association, not only in regulating the manner of making and sustaining claims, and settling differences in regard to them, but in securing the same to the holders thereof against speculators at the land sale; and being well aware that consequences the most dangerous to the interests of settlers will follow, if such a union be not formed; and as Government has heretofore encouraged emigration by granting pre-emption to actual settlers, we are assured that our settling and cultivating the public lands is in accordance with the best wishes of Government. . . .
