How the Indians Lost Their Land

How the Indians Lost their Land by Stuart Banner

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History is complicated because people are complicated. No one is pure evil or pure good; the virtues and vices are unevenly distributed among all people. Thus, it may come as a surprise that Indians weren't entirely victims and settlers weren't entirely villains, although not surprisingly given the relative power imbalance over time, things tended to incline that way over time.

I am woefully ignorant about American frontier history. My attention has always been focused on Europe. So, I probably subscribed to the “conquest theory” of American settlement, i.e., settlers simply took what they wanted and Indians retreated.

This book, therefore, was eye-opening in outlining the complexity of the Indian policy of Great Britain, initially, and America, subsequently. The most eye-opening aspect of this survey is that from the earliest point in history, the settlers - Great Britain and America - recognized that the Indians owned the land that the settlers moved into. Indian conveyances were the foundational title documents of American property law. Although there was a dispute initially about whether people without a state could own property, and whether, according to Locke, they had mixed their labor with the land to support a title claim, settlers pragmatically realized that it was good policy to deal with the Indians.

The Indians had their own reason to deal with settlers. As Banner points out, Indians were land rich and artifact poor. Metal pots, axes, and tools were hard to come by in North America. On the other hand, Indians had lots of land and didn't need it all. Although we might think that giving up the permanence of land for “trinkets” is insane, at that time and place, it was not irrational. Moreover, this dynamic would remain true throughout the history of settler-Indian interaction.

Banner makes the point that most of the land lost by Indians to settlers was through sales transactions. In fact, all acquisitions were structured as sales or other voluntary transactions. That is not to say that some transactions - many transactions - were tainted by fraud and oppression. This is hardly surprising given the strain of concupiscence found in human beings. Interestingly, the law was against that kind of overreaching in principle, and there were occasions, where Indians were able to obtain justice, but the judicial system was the settler's judicial system and the political system was responsive to its constituents, not to the aliens residing within its sovereign borders.

In a series of purchases over two centuries, the Indians found themselves penned into smaller and smaller territories. Some, like the Cherokee in Georgia, were transitioning into an agricultural society along European lines. Their success attracted the attention of speculators and settlers who coveted their now-improved lands. Georgia pioneered a policy of harassment as a stick while the federal government offered land out west in Oklahoma as the carrot. Seeing the handwriting on the wall, the remaining eastern tribes “removed” themselves past the Mississippi. Banner explains that “removal” was sometimes used as an intransitive verb - the Indians had been removing themselves for decades before the Trail of Tears.

In the later 18th century, the tradition of private purchases changed with the federal government adopting a British policy of refusing to allow sales without its authorization (“Preemption.”) Subsequently, all sales occurred in the form of treaties between Indians and the federal government.

It took hundreds of years to acquire the east; it took only sixty years for the same thing to be accomplished in the west. Western expansion happened far more rapidly than anyone anticipated. The vehicle of acquisition was the treaty (or treaty-like process.) It is true that treaties were frequently abrogated or had their terms changed by Congress, but Banner explains that this is a feature of treaties between nations.

The treaty process was tainted by the same fraud and oppression that occurred in private sales. Moreover, by creating a “monopsony” where the federal government had a monopoly in purchasing power, the bargaining position of the Indians was undercut.

The interest of the Indians in bargaining, however, remained. Banner describes annuities to small bands of Indians in the amount of thousands of dollars per year. Under the circumstances, this must have represented a substantial amount of money for the time.

Banner debunks the claim that Indian economic development was retarded by the absence of private property ownership. He explains that many Indian nations did have a system of ownership based on the use of property rather than control of land. This system acted rationally to encourage economic development. In addition, between 1880 and 1930, a system of “allotment” was tried, where individual Indians were given private property in fee simple absolute. As with most reforms, this reform did not work, made the Indian position worse, and opened up the possibility for speculators to acquire the land that would be left over after the apportionment.

Banner dispenses with the notion that there was a doctrine of conquest. There was not. Even in Marshall's decision of Johnson v. M'Intosh, Marshall acknowledged that the Indians had a right to the land that could not be taken away without their consent. This was a “right to occupancy” and not a fee title right. Banner offers a nice bit of legal/intellectual history to explain how this right of “occupancy” came to supplant the earlier belief that Indians owned property in fee simple absolute. The change both reflected a conceptual weakening of the understanding of Indian rights and the basis for weakening the Indian legal position.

The treatment of the Indians was execrable. It was understood as abominable by many people throughout the period, mostly in the east, where their Indians had been cleared out by their ancestors. I particularly found Georgia's treatment of the Cherokee to be outrageous. On the other hand, it is worth keeping in mind that it was rought time. Banner points out that property acquisition was no bed of roses for my ancestors in Ireland:

“The English government embarked on colonization with the optimistic tic view that land in North America was unowned and available for the taking. The charters by which the Crown granted rights to establish colonies in North America almost uniformly purported to convey property rights to their recipients, without any hesitation over the possibility that Indians might already possess property rights in the same land. The first charter of Virginia granted to four men “all the Lands, Tenements, and Hereditaments,” to be found in Virginia, a formula drafted to mimic conveyances of property in England. If the drafters of this clause had any model in mind it would have been Ireland, where English colonization was already well underway, and where the English were taking land by force rather than purchasing it. Most of the subsequent charters included similar clauses.

Stuart Banner. How the Indians Lost Their Land: Law and Power on the Frontier (Kindle Locations 207-211). Kindle Edition.

Banner concludes with the observation that Indians in modernity have been successful in making legal claims for restitution because what happened to them was against the law. The law always recognized that Indians owned the land and had a right to voluntarily exchange their property and to receive the compensation promised to them.

I found this book to be well-written and surprisingly captivating, perhaps because it avoided the trap of being a morality play instead of a history.