Someday We'll Have to Deal With Squatters in Space

This article originally appeared in Future Tense, a collaboration among Arizona State University, New America, and Slate.

As the 50th anniversary of the Apollo 11 lunar landing approaches, a 21st-century space race is heating up. Private firms like SpaceX and Bigelow Aerospace, along with a growing number of national space agencies, are eyeing a manned return to the moon, with an emphasis on settlementrather than exploration. Blue Origin, the firm owned by Jeff Bezos, announced last year its plan to initiate lunar settlement by 2023. Similarly, NASA plans to send astronauts to the moon in 2024 in preparation for an eventual base.

Many proposals stick a base on a lunar pole, where humans could benefit from a near-constant supply of solar power and relatively easy access to ice. At first, the settlement will likely house a few scientists and possibly some private employees, on government contract to maintain any specialized equipment or infrastructure provided by space companies. In time, the base will begin to house others as well—people looking to make a life, or a fortune, for themselves in space.

The scientists and company employees already on a lunar base may see opportunity even if they originally went there for altruistic purposes. As the settlement changes, they might think, property values are rising on Earth, so why not in space? Anyone on the moon prior to a land rush—let’s call them Lunar Sooners, in a nod to homesteaders who jumped the gun during the settlement of Oklahoma—would have a clear advantage to stake claims on the limited real estate near the established settlement.

Perhaps Lunar Sooners will grab land on behalf of a greedy corporation, to be later rewarded. Or workers could hoard supplies and resources, eventually going rogue and claiming some prime property for themselves. Logistically, a Lunar Sooner might build a new structure with relative ease using an industrial 3D printer and moon rock.

We’ve seen it before. When Americans moved west in the 19th century, a group called the Boomers agitated for white settlement of Indian Territory in Oklahoma. Their lobbying campaign eventually gained traction in Congress, helped in part by the Santa Fe Railway Company, which ran trains through the region. The government at last relented, and on March 23, 1889, President Benjamin Harrison issued a proclamation that the territory would soon open for settlement on a first-come basis.

As prospective settlers converged on Oklahoma for the official rush on April 22, 1889, the government declared that anyone entering the lands prior to their opening would be disqualified from asserting a claim. But some individuals, known as the Legal Sooners, had permission to enter before the designated date. This group included deputy U.S. marshals, land officials, railroad employees, teamsters, and traders. And due to this unfair advantage, the Legal Sooners were initially able to snatch up some of the best land. A reporter for Harper’s Weekly wrote about how upon arriving in the town of Guthrie, he confronted a deputy U.S. marshal about his unjust claim to a prized parcel. “That all may be, stranger,” replied the deputy, “but I’ve got two lots here, just the same; and about fifty other deputies have got lots in the same way. In fact, the deputy-marshals laid out the town.”

One official observed that “the atmospheric conditions of things on and before April 22 seemed to impel men, previously honorable and honest, to grab, catch, and hold everything in sight.” Public outcry over the early land grabs by the Legal Sooners and others quickly resulted in appeals to the government. Disputes arose with multiple parties claiming the same plot. Some parcels didn’t have clear ownership for years. The Oklahoma Land Office recorded roughly 5,000 contested claims by 1892, and a few cases went as far as the U.S. Supreme Court.

The government dealt harshly with the Legal Sooners, usually canceling their premature claims. Still, as court cases dragged on, many exploited the resources of their alleged property. Others found buyers, both pawning off their problems and turning profits. The lack of clarity regarding land ownership also hindered development in Oklahoma, “for a man hestitates [sic]to sow unless he has some assurance that he can also reap.”

It was a mess. And a dubious land grab on the moon could be even more difficult to resolve, with potential issues related to the enforceability of decisions, the likely presence of powerful corporate interests, and complicated international law.

One solution is to eschew an all-out free market approach and treat outer space in a manner analogous to the Law of the Seas: No one owns the ocean, but if you pluck out a fish, it’s yours to eat or sell. This framework is somewhat in place already, through a combination of the 1967 Outer Space Treaty, which many argue implicitly prohibits private land ownership in space, and the 2015 U.S. SPACE Act, which allows American citizens to extract, own, and sell extraterrestrial resources. Or, the U.S. and other spacefaring nations could finally sign the 1979 Moon Agreement, which explicitly bans private property and sovereign claims on celestial bodies. This is unlikely, though, as many in the U.S. space community and beyond have traditionally viewed the agreement as far too restrictive on private enterprise. No state with a major space program has signed it.

Yet the Trump administration is pushing to turn the final frontier into an open market, easing regulations and fostering competition among profit-driven rivals. If Washington continues to adopt a more capitalist framework in space, unambiguous property rights are necessary to prevent a Lunar Sooner situation and other unsavory scenarios. At minimum, the Outer Space Treaty should be updated, as it was largely designed to keep nuclear weapons out of space and deter “colonial competition.” It doesn’t really account for Elon Musk and Richard Branson blasting off privately owned rockets and aiming to settle the solar system.

Another global approach would be to create an organization akin to the International Seabed Authority, which organizes, regulates, and controls all deep-sea mining. A similar body could regulate private activity on the moon, easing competition and the threat of Lunar Sooners.

Nevertheless, international regulations may not be enough to stop a roving band of well-supplied settlers from making a moon grab. Congress might then consider passing legislation to supervise settlement. Maj. Paul M. Gesl of the U.S. Air Force, for example, proposes a licensing regime. Under this plan, Washington would recognize the physical structure of a base as private property, but not the immovable lunar surface below it. Such a framework could considerably limit claims, and also allow the U.S. to revoke the licenses of bad actors, providing increased leverage to regulate private enterprise.

Overeager American settlers might not be the only problem on the moon, however. Pioneers from China, the United Arab Emirates, or perhaps even Luxembourg could beat the U.S. in a moon race and quickly swallow up property. A headache might turn into a full-blown crisis, with nations, firms, and individuals scheming for lunar resources. But with a little foresight and preventive action, the U.S. and other spacefaring nations can ensure that the Sooners remain a thing of the past.

The views expressed in this article are strictly those of the authors.