How the Indians Lost Their Land: Law and Power on the Frontier
By Stuart Banner

(Harvard University Press, 2005)

London Review of Books, February 9, 2006

‘They fell upon their own knees, and then upon the Aborigines.’ The old quip about the Puritans who settled colonial New England offers a succinct and not inaccurate summary of white-Indian relations in the United States. Despite the twists and turns of official policy – from Thomas Jefferson’s efforts to assimilate Indians by teaching them to farm (even though they had been doing so for centuries), to Andrew Jackson’s Indian removal, Grant’s ‘peace policy’ and Roosevelt’s Indian New Deal – the fact is that whites from the outset coveted Indian land and eventually succeeded in acquiring almost all of it, sweeping aside periodic resistance with brutally effective violence.

Stuart Banner, a law professor, does not deny that between the early 17th century and the end of the 19th, nearly the entire land area of the United States was transferred from Indian to non-Indian ownership. But in How the Indians Lost Their Land, he offers an avowedly revisionist account of the way this happened. Previous scholars, he claims, have overemphasised the direct seizure of Indian land, failing to recognise that the process of acquisition proceeded mainly through legal forms: namely, purchase by individuals, groups or governments, and the signing of treaties between Indians and the United States. Banner criticises traditional accounts for denying that Indians had their own concept of private property and were tricked into selling land, and for maintaining that whites believed the native inhabitants had no real claim to land ownership. Actually, Banner insists, there were strong reasons to purchase the land and not simply to seize it. The early settlers lacked the power to dispossess the Indian population, and throughout the colonial era, with the French competing with the English for Indian loyalty, wholesale expropriation would have been politically counterproductive.

Indeed, Banner argues, colonial governments and authorities in London generally tried to prevent settler intrusion onto Indian land before it had been purchased. This policy culminated in the Proclamation of 1763, which declared the entire continent west of the Appalachian mountains off-limits to white settlers. Of course, settlers ignored the Proclamation, as did land speculators like George Washington, who instructed his agents to buy as much Indian land in the west as possible while keeping ‘this whole matter a profound secret’ because of its illegality. But Banner’s point is that government officials were committed to dealing with Indians in a legal, orderly manner. Even speculators like Washington paid Indians for their land.

Banner is hardly unaware of the violence that underlay Indian-white relations. But he insists that the transfer of land was neither wholly coerced nor wholly voluntary. It embodied elements of both in a combination that evolved over time. In the early days of settlement, Indians sold land in order to cement alliances with European powers and to obtain manufactured goods that only settlers could provide. Especially after epidemics caused by contact with European diseases led to a disastrous population decline, Indians owned more land than they could possibly use, so selling some of it made sense.

As time went on, however, the process became more and more coercive. By ending rule from London, where the authorities had tried to avoid conflict with the Indians, American independence severely weakened native bargaining power and the respect paid to their property rights. Independence created governments democratically accountable to voters who craved Indian land and to powerful speculators with claims on Indian property. Moreover, the federal government expected much of its income to derive from selling to white farmers land acquired from Indians. Thus, as the Indian writer William Apess later put it, ‘the whites were no sooner free themselves’ than they turned on ‘the poor Indian’.

At first, the new American government insisted that Indians, most of whom had sided with the English during the War of Independence, had forfeited all claims to their land, which could be appropriated without compensation. But this was a recipe for continuous and expensive warfare. As one member of Congress noted, ‘it will cost much less to conciliate the good opinion of the Indians than to pay men for destroying them.’ By the 1790s, the federal government had reverted to the practice of buying land, this time through treaties with individual tribes. As the 19th century progressed, however, recognition of Indian property rights diminished. In Johnson v. M’Intosh (1823), a pivotal Supreme Court decision, Chief Justice John Marshall declared that Indians had a ‘right of occupancy’, but were not full owners of their land as whites understood it. Nonetheless, to the end of the 19th century, even as the federal government forcibly expelled Indians from the eastern half of the country and then rounded up western tribes, forcing them onto reservations, legal forms persisted. Indian land was still acquired, on paper at least, through treaties and sales.

In some ways, How the Indians Lost Their Land offers a valuable corrective to oversimplified views of Indian-white relations. Banner points to the existence of innumerable legal records of Indian property rights – land deeds, laws regulating purchase, court cases that restored to Indians land seized by whites – to indicate that recognition of rights was the norm. He notes that many scholars have confused the legal concepts of sovereignty and property: the first the right to rule over a region, which whites claimed by virtue of ‘discovery’ or authority granted by the Crown; the second the legal title to land, which colonists still had to acquire from Indians. Rather than seeing Indians simply as victims, he makes clear their active agency in shaping relationships with whites. They sometimes played whites off against one another, and they learned to take full advantage of the real estate market. By the 1760s, according to one colonial land dealer, the Indians had ‘grown so cunning and tenacious of their property that in short it is very difficult to get land from them without paying too much for it.’

Banner, however, fails to offer a coherent new account of ‘law and power on the frontier’ – the book’s subtitle. Like many revisionist writers, he considerably exaggerates his own originality. The idea of Indians as savvy negotiators is hardly new: this was the central argument of Richard White’s The Middle Ground (1991), which numerous subsequent books have been influenced by. Recent scholarship makes clear that to avoid constant warfare and ensure legally valid titles and an orderly distribution of land among settlers, the English generally recognised Indian property rights and purchased land rather than simply taking it.

Banner doesn’t break new ground, either, in insisting that Indians possessed a concept of property rights, a point made, for example, by Linda Parker in Native American Estate (1989). But while Parker carefully delineated the numerous systems of land tenure that existed among Indian tribes, Banner fails to tell us precisely how Indians viewed property. Sometimes, he seems to suggest that their conceptions of property were not all that different from those of whites. Yet he also notes that no market in real estate existed before the coming of the Europeans. Indians did not buy and sell land among themselves. Most tribes seem to have allocated plots to individual families, while unclaimed land remained free for the taking. Since villages tended to move when soil was depleted, the European notion of a fenced-off piece of land belonging for ever to a single family didn’t make much sense. Nor did the idea of accumulating more and more land as a way of enhancing one’s wealth. Certainly, Indians familiarised themselves over time with the colonists’ definition of landed property. Well into the 19th century, however, Banner notes, ‘individuals owned rights to use land, not the land itself.’ This use-right, he insists, ‘was property’. But he never examines the implications – legal, economic and ideological – of differences between white and Indian conceptions of property.

Banner makes the essential point that the English colonies and, later, state and federal governments, controlled the legal system that defined property rights. This constituted as important a form of power as military might. Land transactions took place within a legal framework Indians had no role in shaping. But conflicts over land ran deeper than the legal definition of property. For Indians, land was essential to maintaining a traditional way of life. For whites, land meant many other things. It was the basis of power – huge land grants to companies and to well-connected individuals helped to lay the foundation for an American upper class. For settlers, land was the basis of personal independence, a concept that had little meaning in most Indian societies, where kinship ties, the well-being of the tribe and adherence to widely understood ideas of communal loyalty took precedence over individual autonomy and freedom.
John Smith had scarcely landed in Virginia in 1607 when he wrote that in America, ‘every man may be the master and owner of his own labour and land.’ This vision of economic freedom was to draw millions of newcomers to North America and inspired a relentless westward flow of population. Dispossessing the Indians was, from the beginning, intrinsic to the fulfilment of the American dream. Indeed, unlike the Spanish and French empires with their relatively small European populations, the English were not chiefly interested in organising the Indians’ labour or trading with them. Over time, they displaced the original inhabitants of the New World far more thoroughly than any other European empire.

Ultimately, How the Indians Lost Their Land illustrates the weaknesses of a history focused on laws and ideas divorced from their social, political and military context. To be sure, Banner is fully aware that ‘formal law and actual practice could diverge.’ But this radical understatement is typical of an account that seems oddly antiseptic given the violence that always infused Indian-white relations. Banner unnecessarily plays down the role of outright military subjugation in land acquisition. ‘Much more land was obtained by purchase than by conquest,’ he writes, while providing no figures to substantiate this claim.

History tells a somewhat different story. It was the destruction of Indian forces by Anthony Wayne in the Battle of Fallen Timbers of 1794, for example, that led to a treaty transferring, for a fee, most of Ohio and Indiana to the federal government. Did the treaty represent purchase or conquest? After the Creek War of 1814, Andrew Jackson imposed a treaty on the defeated Creeks that ceded much of Georgia and Alabama, opening the door for the expansion of slave plantations in the Deep South. Discussing the removal of the Cherokees to Oklahoma from lands in the east, Banner remarks: ‘The Seminoles would follow soon after’ – an inadequate description of a war that lasted from 1835 to 1842, in which some 1500 American soldiers and a similar number of Seminoles perished. Banner is quite correct to note that even after decisive military victories, Americans went through the process (perhaps it is better to say the charade) of signing treaties that made the land transfers appear to be mutually agreed transactions. This obsession with trying to reconcile conquest with legal procedures cries out for explanation, but it should not disguise the fact that it was conquest all the same.

By 1900, the Indian population within the borders of the United States, which numbered in the millions when Europeans first reached North America, had been reduced to 250,000, most of them living in extreme poverty on reservations. But contrary to the expectations of many white Americans, Indians stubbornly refused to ‘die out’. Instead, their population began to rebound. It reached four million in the 2000 census. Meanwhile, thanks to the American Indian Movement, one of the numerous social crusades spawned by the 1960s, Indians embarked on a militant campaign for greater rights and historical restitution. Some tribes today are using the legal system created by whites to gain compensation for past injustices. In 2001, a New York court awarded the Cayuga Nation $248 million for illegal land seizures two centuries ago.

Remnants still survive of Indians’ anomalous legal position as American citizens who enjoy a kind of quasi-sovereignty, notably in the lucrative Indian casinos which now operate in states that otherwise prohibit gambling. Indian casinos take in around $15 billion each year. Some tribes have become very rich as a result. One such group is the Pequot tribe of Connecticut. In 1637, as the result of a brief and bloody war, Puritan New Englanders exterminated or sold into slavery most of its members. The treaty that restored peace decreed that the tribe’s name should be wiped from the historical record. Today, the 280 members of the Pequot tribe operate Foxwoods, reputedly the world’s largest casino. Thanks to white Americans’ insatiable desire to try their luck at gambling, Indians are recovering a small fraction of the wealth taken from them over the course of the last four centuries.