The 1866 Southern Homestead Act

When the Homestead Act signed by President Abraham Lincoln became law on May 20, 1862, the country was embroiled in the Civil War that would last nearly three more years.  Eleven states in the Lower and Upper South had succeeded from the Union and were engaged in active warfare against the rest of the United States.  Not surprisingly, the 1862 Homestead Act contained a provision that all persons who had "borne arms against the United States Government or given aid and comfort to its enemies" could not receive a homestead.  And from the perspective of the Confederate States of America, the 1862 Homestead Act was irrelevant anyway.  It had been passed by a country that they no longer considered their own, with the "free" land that could be homesteaded thus not even part of their new and separate "nation." 

But eventually that would change.  Confederate soldiers who had fought against the United States during the Civil War eventually were allowed to homestead -- and apparently thousands did.  The story of how this change happened is fascinating yet not well known.

Central to the story is politics.  Even before the Civil War ended in the spring of 1865, there was heated debate in Congress and throughout the nation on how to bring the country back together again, including if there should be lasting consequences for those who had borne arms against it.  When, if ever, would former Confederates be treated the same under all federal laws including homestead laws?  Would they ever be allowed to get "free" land?

Since the 1862 Homestead Act had specifically withheld homestead rights to combatants or others who gave "comfort or aid" to the nation's enemies, it required either an amendment to the 1862 law or a separate homestead act to accomplish this change.  The solution was both. 

Due to the complexity of the situation and other goals of the Reconstruction Period, a special homestead law was passed by Congress on June 21, 1866 with the lengthy name: "An Act for the Disposal of the Public Lands for Homestead Actual Settlement in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida."  It became known as the 1866 Southern Homestead Act and involved more than just restoring homestead rights to former Confederate soldiers and other supporters of the Confederacy.  It included other changes to existing homestead law that would last though the end of the homestead era.  

As the 1866 law's lengthy title indicated, most of it directly applied to those five former Confederate states with public lands that potentially could be homesteaded.  Before 1862, the federal lands in the South had primarily been sold by the government often to large timber companies (and speculators) eager to find cheap lumber and reap large profits.   But the new 1866 law put at least a temporary stop to that practice.  It prevented further sale of public lands in these five states, with the lands instead made available just to homesteaders.

Also, for the first two years of the 1866 Homestead Act (June 21, 1866 to June 21, 1868), all homesteads filed in the five former Confederate states could only be for a maximum size of 80 acres, but later increasing to 160 acres after June 21, 1868.  The apparent reason was to enable more people to obtain land in the same area.

Significantly, part of the real (yet unwritten) purpose of the 1866 Southern Homestead Act was to enable newly-freed slaves to obtain federal land as an alternative to breaking up southern plantations and forcing their owners to surrender their private land to their former slaves.  Some in Congress had strongly supported this idea (arguably a version of "forty acres and a mule" for reparations for former slaves).  Indeed, there were many in the North who would have gladly punished the former large Southern slave owners in this fashion.  Yet cooler heads saw that such a legally questionable land confiscation policy could only further inflame and embitter many inhabitants in the former Confederate states leading to endless litigation.  So, for the sake of the reuniting the nation, the idea of breaking up Southern plantations was not adopted, and public lands were opened to former slaves and others to homestead to help quell the need to provide land to the landless.

As for the provision in the 1862 Homestead Act barring those who had borne arms against the nation or who had supported the Confederacy, it was amended away by the 1866 Act.  However, that change only became effective on January 1, 1867, six months after the 1866 Southern Homestead Act was signed.  This was viewed as an attempt to give former slaves a head start in filing homestead claims in those five former Confederate states.  Yet the reality was that the pace of filings for homesteads under this new 1866 law was initially slow, perhaps due to it not being widely known or understood.  Homesteading was indeed new to the South. 

But starting January 1, 1867, former Confederate soldiers or others who had materially supported the Confederacy could at last homestead like anyone else throughout the nation.  But there was one caveat.  The 1866 law required that each homesteader "shall make affidavit that not part of said land has been alienated [sold], and that he will bear true allegiance to the government of the United States."  So, a special loyalty statement was required.

One more notable provision of the 1866 Southern Homestead Act would also later apply to homesteading through the nation from that time forward.  This 1866 law explicitly stated: "that no distinction or discrimination shall be made in the construction or execution of this act on account of race and color."  This was added clarification not in the original 1862 Homestead Act.  So, while the 1862 law did allow anyone of any race or color to homestead, it was apparently feared that without explicit language in the 1866 act the race or color of a perspective homesteader might be used, especially in the South, to bar former slaves from getting homesteads.   And it would thereafter apply to all homesteading.