Problems of Land Claims without a Government – illustrated by the case of Dr. John McLoughlin. How does one stake out land claims in lieu of a functioning government?
Before 1812, most of the Pacific Coast north of today’s San Francisco, featured a landscape claimed by several Euro-centric countries. To the north, Imperial Russia slowly crept southward. Spain maintained claims on much of the coastline from California northwards to today’s Vancouver Island. Both the United Kingdom and the United States focused on the region drained by the Columbia River and its tributaries, though that focus stretched far beyond the drainage basin. The various claims based themselves upon discoveries made by explorers of the various nations. Ideas that the land somehow was owned by local Native Americans was put aside for the most part by the nations in question.
BEFORE 1812
Just after the War of 1812, the United States and Britain clarified the scene, at least as far as these nations were concerned. An 1819 treaty ended Spanish rule in Florida after a period of 254 years (albeit with an interregnum of British rule from 1763 until 1783). The same treaty fixed the Spanish California border at the 42nd parallel. Russia soon signed agreements with both the US and Britain delineating the southern border at the latitude of 54°40’ North – treaty with the US 1824 and the UK 1825. That left Britain and the US mingling together in the lands between.
Before the War of 1812, men from the American Pacific Fur Company – PFC – owned by John Jacob Astor, established a small trading post near the mouth of the Columbia River, Fort Astoria. Because the fort lay too isolated from American naval forces during the war and with British ships sailing their way, the PFC men at Astoria decided the best course of action became to sell the fort – along with the small post set up along the Willamette River near Champoeg – to the Canadian North West Company – NWC.
The NWC had established a series of posts in the upper Columbia basin with an eye towards the river mouth before the men of the PFC beat them to the punch in 1811. Both companies had looked at the possibility of working together before the war only to decide to go on their own paths. Selling the fort, kept British forces from “capturing” an American post, much to the chagrin of the British naval commander.
JOINT OCCUPANCY
One of the aspects of the Treaty of Ghent – 1814 – officially ending the War of 1812, was all captured lands and buildings were to be returned to their pre-war owners. Now, Fort Astoria had been sold and not captured, but in 1817, an American naval ship, the USS Ontario, put in at the now-Fort George. There was a brief ceremony where the English flag was lowered, and the American flag raised. And then the Ontario sailed away. Of course, the British flag soon fluttered back in its place, but this episode added to American claims over the region, beyond those of earlier explorers like Robert Gray – discoverer and namer of the Columbia River – and the travels of Lewis and Clark in 1804-1806. Britain had its own explorers, plus a set of trading posts owned by the NWC, backing her claims.
With the war over, the two nations decided to put off, for at least ten years, a final border decision over the Oregon Country with the 1818 London Convention which agreed to a border of the 49th parallel east of the Rocky Mountain Continental Divide, but a sharing of occupation and settlement of the regions west of that divide. Both countries could use the land and free navigation on waterways guaranteed. The agreement could renew by both parties after ten years if both agreed. Nothing in the agreement mentioned anything about possibility of settlers or land claims.
ENTER THE HUDSON’S BAY COMPANY
After a period of acrimonious near war between the NWC and the more senior Hudson’s Bay Company – HBC, the British government forced a merger of the two fur trading companies. The HBC formed from a royal charter from Charles II in 1670. He gave “ the Governor and Company of Adventurers of England trading into Hudson’s Bay”. The charter gave them 1.49 million square miles of lands over which they maintained a monopoly of control over the drainage system of Hudson’s and James’ Bays.
Included in the charter, the company was to be “… personable and capable in Law to have, purchase, receive, possess, enjoy and retain, Lands, Rents, Privileges, Liberties, Jurisdictions, Franchises, and Hereditaments, of what Kind, Nature or Quality soever they be, to them and their Successors; and also to give, grant, demise, alien, assign and dispose Lands, Tenements and Hereditaments, and to do and execute all and singular other Things by the same Name that to them shall or may appertain to do.”
Further,
“… Our Heirs and Successors, DO give, grant, and confirm, unto the said Governor and Company, and their Successors, the sole Trade and Commerce of all those Seas, Streights, Bays, Rivers, Lakes, Creeks, and Sounds, in whatsoever Latitude they shall be, that lie within the Entrance of the Streights commonly called Hudson’s Streights, together with all the Lands and Territories upon the Countries, Coasts and Confines of the Seas, Bays, Lakes, Kivers, Creeks, and Sounds aforesaid, that are not already actually possessed by or granted to any of our Subjects or possessed by the Subjects of any other Christian Prince or State, with the Fishing of all Sorts of Fish, Whales, Sturgeons, and all other Royal Fishes, in the Seas, Bays, Inlets, and Rivers within the Premisses, and the Fish therein taken, together with the Royalty of the Sea upon the Coasts within the Limits aforesaid, and all Mines Royal, as well discovered as not discovered, of Gold, Silver, Gems, and precious Stones, to be found or discovered within the Territories, Limits, and Places aforesaid, and that the said Land be from henceforth reckoned and reputed as one of our Plantations or Colonies in America, called Rupert’s Land.”
NATIVES AND LANDS BEYOND THE ORIGINAL CHARTER
Native Americans did not figure into the equation. Charles II simply took their lands in the European manner. Of course, what a charter wrote did not always equal conditions on the ground. The HBC did not actively pursue the “land ownership” question until the 19th century.
Their charter did not cover the Oregon Country or lands drained by the Mackenzie River. After the 1821 merger of the NWC into the HBC, their bailiwick increased dramatically. They gained an exclusive license to trade in lands beyond Rupert’s Land for 21 years – renewed again in 1838. The license did not grant land but only the monopoly of trade. The additional land which the HBC controlled followed the 1846 Oregon Treaty, came from later machinations of the British government and the HBC. In a land of joint ownership, land claims were nebulous, based more on squatting than anything else.
COLONIZATION
The HBC simply did not want colonization, settlers to come into their lands which they saw as disrupting the fur trade. It was not until after 1846 when the HBC became involved in “colonization” with maybe one exception. Not until the late 1820s came before HBC-retiring fur trappers became allowed to stake out farms they could retire onto. In the meantime, with the late 1839s and especially early 1840s, American settlers came west in response to pro-Oregon propaganda in the eastern US, the chance to make land claims and an economic downturn following the economic policies of Andrew Jackson. Those settlers would eventually push the Oregon Question to a conclusion with the borders finally defined between the two nations with the Oregon Treaty of 1846.
While the HBC did not desire settlers into its furry regions, the Company was not averse to staking land claims in the contested region. One such place would be at the Willamette Falls, the largest by volume waterfall in the Pacific Northwest. At the behest of HBC North American Governor James Simpson, Dr. John McLoughlin, the Chief Factor of the HBC’s Columbia District – working out of Fort Vancouver – made land claims in 1829 around the falls noting its commercial importance with the latent power of the waterfall.
WILLAMETTE FALLS LAND CLAIM
On Governor Simpson’s second visit to the Oregon Country in 1828-1829, both he and McLoughlin realized the potential waterpower the Falls could generate. The 1827 agreement to extend the joint occupancy over the Oregon Country led the HBC committee in London to halt on ongoing process to retreat from the areas south of the Columbia River. They decided to move the Fort Vancouver sawmill south to the falls where Simpson noted “saws enough could be employed, to load the British navy.” Making a claim, McLoughlin named himself as a trustee for the HBC so Americans who disliked the Company would be less inclined to contest a personal claim.
Slowly, McLoughlin in the early 1830s had his men plant potatoes, create a millrace and amass lumber to build the sawmill. It would not be until after the Methodist Great Reinforcement of 1840 before McLoughlin took more aggressive steps to reinforce the HBC claim at the Falls building a house on the site in 1842 and the sawmill the following year. Because of changes in the political situation at that time, when he had the claim surveyed, he did so in his own personal name instead of the Company with which many of the new settlers had a low opinion of.
ENTER ALVAN WALLER
Alvan Waller served the Methodist faith as a successful circuit rider in western New York. Encouraged by Jason Lee to join his Willamette Mission, Waller came west on the Lausanne in October 1839 as part of the Great Reinforcement. Reaching the Willamette Valley in May 1840, after a stay at the Mission Mills – today’s Salem – he came north in the fall to establish a mission at the confluence of the Clackamas and Willamette Rivers. Eventually, he found himself on the losing end of a squabble for Native souls with Catholic priest François Blanchet.
Waller met up with Charles Wilkes where he complained to Wilkes of the HBC monopoly’s effect on trade – especially regarding a Methodist store at the Falls in competition with an earlier HBC affair. Wilkes, unswayed by Waller’s complaints, thought business played no role in a religious mission’s role. Further, he found Waller as the dirtiest man he ever witnessed, worse than any Native he ever came across.
WALLER BECOMES A BUSINESSMAN
During the fall of 1841, Waller gave up the cause of converting the Clackamas tribe to Methodism and spent his time making improvements to mission land claims at Willamette Falls. McLoughlin’s inquiries as to Waller’s intentions to Jason Lee became met with assurances that no one looked to jump McLoughlin’s claim at the Falls.
The Methodist store came about when George Abernethy, an accountant and storekeeper who also came as part of the Great Reinforcement, persuaded Lee that the Falls represented a better supply center for the new Methodists missions formed than at the Mission Mills. Shortly after Abernethy set up his store, the Island Milling Company formed with the intent to build a grist mill on what became known as Abernethy’s Island on the east side of the Falls. All falling under the charge of Waller, his religious station transformed now into a business center.
CONTROVERSY BEGINS
In response to Methodist’s moves in 1838, McLoughlin erected a warehouse built at the Falls serving as a summer post to trade for Native-caught salmon. This was when he accumulated lumber in order to build his sawmill. Because of his trip to England in 1838-1839 to report on Columbia District affairs to the HBC committee, the sawmill did not get built then. Jason Lee asked for the loan of some of those timbers in 1840 so Reverend Waller could build a home before winter set in. The doctor agreed though he made Lee aware of his former land claims and sent someone to point out the boundaries of his claim.
Even though the land claims at the Falls was made in Dr. McLoughlin’s name, Waller failed to distinguish between the hated monopoly and its hireling who was not only a British citizen but a Catholic. Waller simply doubted McLoughlin’s claim since the claim had not seen much improvement. So, he continued to aggressively squat on the site in 1841 constructing a mission house.
McLoughlin received word in October 1842 that Waller was claiming he was the sole owner at the Falls. Asked by McLoughlin about the rumors he received, Jason Lee denied them, as did Waller. They claimed he only intended to file if McLoughlin’s claim was withdrawn. But Waller wanted deeds to the lots – Oregon City was platted out by McLoughlin earlier in the year – he already occupied. He also wanted confirmation of the transfer of other lots already transferred to third parties. Plus, Waller’s expenses for labor in clearing a portion of the town site.
INITIAL AGREEMENT
With the help of Lansford Hastings, an American lawyer who emigrated to Oregon in 1842, a compromise worked itself out. Waller and those who bought lots from him received deeds. Waller got $25 for his labor and tacitly agreed to McLoughlin’s ownership. Tacit and Explicit are too different animals, however. He had no intention of honoring the agreement.
Instead, he wrote up a petition for the US Congress’ benefit explaining the various outrages imposed upon American citizens by the monopolistic and tyrannical HBC. Especially Waller found the HBC guilty of unfair competition in building a mill in opposition to the Island Milling Company. He also claimed McLoughlin usurped his land claims made by right of preemption. Some 65 people signed what became known as the Shortess Petition, though neither of the Lees – Jason or Daniel – signed the note.
Date 25 March 1843, McLoughlin learned about it two weeks later, alerted by Hastings. The doctor was involved in other affairs at the time – the death of his son and his outrage at Governor Simpson’s cover up of the affair – as well as events boiling up which would lead shortly – 2 May – to the Champoeg meeting which ushered in the first form of the Provisional Government.
ROUND TWO
Coming out of the Champoeg meeting, a committee met twice to draw up a constitution for the new government. Near the end of the document, a section dealing with land claims was included. The 640-acre limit was drawn up for a couple – half that for single men. But town lots were exclusive of those limits. “No person shall be entitled to hold such a claim upon City or Town lots, extensive water privileges, or other situations necessary for the transaction of Mercantile or Manufacturing operations and to the detriment of the community.”
Now, Jason Lee had not argued for the formation of a government before Champoeg, but listening to the land claims discussion on 5 July, he had an amendment tacked onto the paragraph, “… provided that nothing in these laws shall be so construed, as to affect any claim of any Mission of a Religious character made previous to this time of an extent not more than six miles square.”
However, the first move to local government would not prove successful. Without the power to tax, there was no certain way to meet expenses to run such a government. Supported by less than half of the community over which it supposedly reigned with McLoughlin and most of the French-Canadians looking the other way, the whole thing became seen as purely a Methodist concern. That would change as the form of government transformed and more emigrants poured in to engulf both French-Canadians and Methodists. The main problem remained, neither the HBC nor the Methodists could establish legal ownership of land shared by both the US and Great Britain.
ROUND THREE
Enter John Ricord, one of the 850 emigrants to Oregon in 1843. A lawyer from New York, confidential secretary to Texas presidents David Burnet and Sam Houston, he came west in a wagon train led by Dr. Marcus Whitman. He reached Oregon City in October. With the land claim at the Falls still a question, Ricord’s lawyerly skills were on demand from both parties involved. Accepting Waller’s offer led to Ricord’s analysis. McLoughlin, as a British citizen, could not claim any land in Oregon since it was part of the United States. Of course, this opinion came three years before the boundary question’s resolution. Laying his opinion out in such a way, even if ludicrous, impressed McLoughlin wanted Ricord to help put the matter to bed once and for all.
For the fee of £300, Ricord’s solution was for McLoughlin to cede Reverend Waller five more acres of Waller’s choosing, give up all claim to Abernethy Island and cede other lots to Jason Lee as the representative of the Methodist church. These terms were a bit much for McLoughlin to stomach and he declined. He did try to get Ricord to continue to represent him, but the Lawyer was on the boat to Oahu – the same boat Lee was on as he returned to the east one last time to face the Methodist Mission Board which just replaced him in charge.
Soon after the boat sailed with Ricord on it, McLoughlin got a letter. Representing Waller, Ricord informed McLoughlin that as a British citizen and an officer of the HBC, he was disqualified to make a claim. Waller would file a claim with the US Land Office and McLoughlin’s claim render then as unlawful.
ROUND THREE PART B
Lee knew already Waller would not recognize the agreement made the year before. He wrote Waller saying he found that decision as “satisfactory.” Lee would go ahead to file Waller’s claim with the Land Office and he gave Ricord $250 in Hawaii on Waller’s behalf.
In an attempt to settle the title dispute, fellow HBC Chief Factor James Douglas helped persuade McLoughlin to give a personal payment of $500 to Waller along with five acres and fourteen city lots to the Methodist mission. Waller then exited the scene and returned to the Willamette Mission. He spent a couple years at the mission at Wascopam (The Dalles) focusing his attentions on Methodist education beginning with the Oregon Institute and later the Willamette University. He also returned to circuit riding around the valley in the 1850s. While out preaching the word, he also attracted funds for the university. The five-story brick building – University Hall – completed in 1867 gained a new name in 1912 as Waller Hall. It remains in use across from the State Capitol today.
ROUND FOUR
Reverend George Gary entered the scene now as Jason Lee’s successor as head of the Methodist mission. His job given to him by the Methodist Mission Board was to wrap up the mission. In doing so, Gary noted on two of the fourteen lots, a Methodist church stood. He offered the other twelve lots to McLoughlin. Gary priced the land at $5,900 – including a charge of $100 for the house Waller built with lumber loaned from McLoughlin and never paid for. In the past, Lee denied the intent to contest the Oregon City claim. But Gary told McLoughlin, their claim to the title in lieu of a boundary resolution was just as good as the doctor’s. To quiet the title, McLoughlin could either meet the terms or the lots would go on the market.
With reluctance, McLoughlin met Gary’s terms. Several American settlers became outraged at the actions taken against McLoughlin. Dr. Elijah White came to the Mission Bottom in 1837, arriving on the Diana. Friction between White and Lee led to White’s dismissal in 1840. White took his complaints to the Board. While the Board did not reinstate White, they took his complaints into account when they dismissed Lee in 1843.
Enter Elijah White
White returned to Oregon in August 1842 leading the first large wagon train over the Oregon Trail. He also brought an office granted him by the US federal government as Sub-Agent of Indian Affairs, West of the Rocky Mountains, the first federal official sent to Oregon. White took his outrage over McLoughlin’s treatment to Gary charging Waller with unchristian behavior. This forced Gary into holding hearings into the matter.
Not liking either Waller nor especially White, Gary decided to punt the affair to the Genessee Conference in New York because there were not enough ministers in Oregon with which to hold a trail. Gary sent Waller off to New York to stand trial, but Reverend Henry K. W. Perkins was among those calling for action to be taken against Waller.
Perkins also came on the Diana. Jason Lee sent him and Daniel Lee to form the Methodist Mission at Wascopam (The Dalles). Perkins was one of the few Methodist ministers who took the mission as an effort to proselytize to the Native Americans. He and his wife took the effort to try and learn Native languages and customs. Discouraged by the actions of Waller and the loss of aim of the Methodist mission, in general (forgoing Natives for emigrants), he resigned returning to the East. This forced Gary to recall Waller who with his family had gone to Fort George to wait for a ship. Gary then sent Waller to Wascopam where he would stay until the mission was sold to Dr. Marcus Whitman in 1847.
COMPANY PROBLEMS
Over 1,400 emigrants came over the Oregon Trail in 1844 with others taking the sea route. McLoughlin opened a company store in Oregon City in 1844 to compete with three other stores. One store, the former Methodist central storehouse, had been sold to George Abernethy when Reverend Gary was closing down the Mission earlier. McLoughlin also continued selling town lots though troubled by the irregularity of his claim. With the new provisional government, he recorded the claim in his own name. He thought this way, American settlers would be more ready to accept it instead of recording the claim under the name of the HBC whose reputation was not the greatest due to its monopolistic power in the region.
While recording the claim under his own name, improvements on the claim came about using HBC funds. Using company funds went against an 1842 company policy which discontinued investment in the Willamette Valley as matters looked bleak for long-term British rule in areas south of the Columbia River. Governor Simpson, involved in a major battle with McLoughlin over the whitewashing of the events north at Fort Stikine where McLoughlin’s son died at the hands of disgruntled employees, wrote to the doctor that the HBC held him accountable for buying off pretended claims – Waller – and attorney fees involved – McLoughlin paid Hastings £150 for legal advice.
McLoughlin, tired of the company he gave his life to, moved to Orgon City permanently in 1845 and retiring a year later. With the Treaty of Oregon in 1846 settling the border on the 49th parallel, McLoughlin filed a notice of intent to become an American citizen. He then took part in the election in 1848 for a first territorial representative to Congress.
ROUND FOUR
One new emigrants sauntering onto the Oregon stage with the emigration of 1847 – Samuel R. Thurston. Thurston can simply be accepted as duplicitous scoundrel. He graduated from Bowdoin in Maine passing the bar and shortly after moving to Iowa. Malcom Clark Jr., in his Eden Seekers, writes about Thurston, “Having engaged to defend two rogues charged with counterfeiting, he and his law partner sat down to divide their clients’ assets which they arranged in two piles, one consisting of $160 in hard cash, the other in of s shotgun and $280 in queer money. Given his choice, Thurston took the bogus bills, and passed every one of them.”
As a Methodist, Thurston became the representative of choice for the mission party supporters. In addition, he gave assurances to George Abernethy in pushing for Methodist interests in Congress. In the ensuing election, with a low turnout of only about 30% of those eligible going to the polls, Thurston eked a narrow win.
One of the first things Thurston needed to accomplish in Washington Lay with land claims. The provisional government recognized claimants 640-acre-lots in 1843. When the Oregon Territory became recognized 14 May 1848, those claims were nullified. Thurston, a convincing man on a personal level, helped to create the Donation Land Claim Act of 1850. This act, very similar to that of the former provisional government, allowed claims of 320 acres – 640 for married couples – for those occupying the land for four consecutive years. At 640 acres per couple, lands in the territory began to go quickly – amendments in 1853 and 1854 cut the claims allowable in half. Eventually, the 1850 Act set up the Homestead Act of 1862. Land surveying procedures were established and within five years over 7,000 claims were filed.
Section 11
Section 11 represents Thurston’s promise to his Methodist contingent. Thurston first tried to discredit McLoughlin on the basis of citizenship. He also accused McLoughlin of trying to stop territorial development and of profiting from land sales. Section 11 gave McLoughlin’s Oregon City claim to the state legislature. Countering Thurston, McLoughlin said,
“He says that I have realized, up to the 4th of March, 1849, $200,000 from the sale of lots; this is wholly untrue. I have given away lots to the Methodists, Catholics, Presbyterians, Congregationalists and Baptists. I have given 8 lots to a Roman Catholic nunnery, 8 lots to the Clackamas Female Protestant Seminary, incorporated by the Oregon Legislature. The Trustees are all Protestants, although it is well known I am a Roman Catholic. In short, in one way and another I have donated to the county, to schools, to churches, and private individuals, more than three hundred town lots, and I never realized in cash $20,000 from all the original sales I have made.
If I was an Englishman I see no reason why I should not acknowledge it; but I am a Canadian by birth, and an Irishman by descent … . I declared my intention to become an American citizen on the 30th May, 1849, as any one may see who will examine the records of the court, in this place. Mr. Thurston knew this fact — he asked me for my vote and influence. Why did he ask me for my vote if I had not one to give?? I voted and voted against him, as he well knew, and as he seems well to remember”
AFTERMATH
While McLoughlin became an American citizen, his claim was denied. At his death in 1857, the legislature had not acted upon its ability to seize the disputed land. Some justice gained restoration when Thurston died of yellow fever while returning to Oregon to campaign for his continuation as Oregon’s congressional observer in 1851.
Section 11 called for the lands of McLoughlin to go for the establishment and endowment of a territorial university not yet planned for. After McLoughlin’s death, in 1862 the legislature now of the new state passed an act allowing the McLoughlin’s heirs to inherit all of the original claim except for Abernethy Island upon the payment of $1000 designated for the University Fund of Oregon.
And then there is today. A big circle has completed with the purchase of the large industrial area formed in the late 19th and much of the 20th centuries around Willamette Falls. On the Oregon City side, the huge paper mills are now being cleared as the area transforms under the guidance of the Grand Ronde tribe – the “tribe” is actually the ancestors of most of the Native American tribes who originally lived in the Willamette Valley before the vast migrations of European settlers in the middle 1800s pushed them towards the coast.
The purchase serves to set aside Methodists, the Hudson’s Bay and John McLoughlin as a sidenote to history today, albeit a very important sidenote back in the development of Oregon as a political unit within the United States.