Fragmentation of public domain law and policy: An alternative to the "shift-to-retention" thesis.

Conventional wisdom asserts that after a century of disposition, Congress c hanged course and began retaining land in federal ownership during the Prog ressive Era. This "shift narrative" shapes our understanding of conservatio n history and federal land holdings in the Western United States. Unfortuna tely, it is largely incorrect. We propose an alternative narrative that emp hasizes instead a fragmentation of policy. Fragmentation grew in part out o f changes in the nation's political economy after the Civil War. Expanding central government power in some cases underwrote federal ownership of natu ral resources. However, the diverse priorities of increasingly effective co rporate interests and scientific/professional groups assured a fragmentatio n of policy. Fragmentation also blossomed when Progressive Era theories of property began to gain support. These move social and utilitarian views of ownership did not replace their Lockean antecedents, but simply supplemente d and confused American ideas of ownership. The result to this day is a con flicted vision of property that suggests to us a need for a more dialectica l analysis of property rights along the lines of G.W. Hegel. The Fnal part of the article details a revisionist history of public domain policy based on the political-economic changes just described. Rather than a sudden or i ncremental shift to retention, we describe a wide variety of policy decisio ns. Among these are choices to strongly retain some selected lands, retain and later dispose of others, weakly retain some lands, split the estates of still others, and only nominally retain a good portion of the remainder. W e conclude that the idea of a shift to federal ownership conceals the diver se public domain tenure arrangements and makes meaningful conversation abou t historic policies and future paths more difficult. Better understanding o f both the political-economic setting and the ideas of property of the peri od, we argue, will help us to better understand the resulting policies as t hey affect the present day.