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

by Stuart Banner

Between the early seventeenth century and the early twentieth,
nearly all the land in the United States was transferred from American
Indians to whites. This dramatic transformation has been understood in two very different ways--as a series of consensual transactions, but also as a process of violent conquest. Both views cannot be correct. How did Indians actually lose their land?



Stuart Banner provides the first comprehensive answer. He argues that neither simple coercion nor simple consent reflects the complicated legal history of land transfers. Instead, time, place, and the balance of power between Indians and settlers decided the outcome of land struggles. As whites' power grew, they were able to establish the legal institutions and the rules by which land transactions would be made and enforced.



This story of America's colonization remains a story of power, but a more complex kind of power than historians have acknowledged. It is a story in which military force was less important than the power to shape the legal framework within which land would be owned. As a result, white Americans--from eastern cities to the western frontiers--could believe they were buying land from the Indians the same way they bought land from one another. How the Indians Lost Their Land dramatically reveals how subtle changes in the law can determine the fate of a nation, and our understanding of the past.

Genres: History, Law, Native Americans, Native American, American History, Politics

352 pages, Hardcover

First published October 1, 2005

Reviews

[Peter Bradley · Rating 5 out of 5]

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.

[Marvin · Rating 4 out of 5]

This book sets out to answer the question: How did the Indians lose their land? Did they sell it, or was it taken from them by conquest? Typically, for an academic historian, the answer is: It's complicated, and it depends on the time & place. But it was rarely, if ever, completely one or the other. And whatever policy was in place at any given place & time was contested both among whites & among Indians. The author's analysis is remarkably balanced & clear-headed, & it is articulated with remarkable clarity (especially for a legal historian), with a keen eye for the well-chosen, illuminating quotation. I learned a lot, & was surprised by much of what I learned. Most notably, I was surprised (is this naivete or racism on my part?) by the strength and frequency of Indians' pursuit of remedies for their grievances through legal & political channels--and by how often (though not nearly as often as it should have been) their appeals were effective. I highly recommend this as a way to understand how American Indians lost their land.

[Howard Mansfield · Rating 4 out of 5]

You may think you know how the Indians lost their land -- through fraudulent treaties, outright theft, forced marches, and war -- but Stuart Banner shows that there is much more to this complicated story. A few examples:
* The Indians sold their land in a “broken marketplace,” he says. Legally, they could only sell land to the Federal government or its licensed agent. (This is somewhat like what happens when a house is seized under Eminent Domain. The party taking the house also determines the price it will pay.)
* The white “settlers” provoked the Indians into a fight, knowing that the army would join the fight and eventually remove the Indians by way of a forced treaty.
* Americans bought and sold “preemption rights” – the right to buy the land once the Indians were removed. George Washington was an active buyer.
* At the start of the 19th Century, Indian ownership of their land, which had been recognized from first contact, was reduced in a famous Supreme Court case to a “right of occupancy.” They were reduced to being tenants of their own land.
I could go on. The press for the Indians’ land is unrelenting. It exists in every breath, every transaction. It doesn’t matter the era, or the change in policy, it’s an equation that runs one way only, in the white man’s favor.
Banner proceeds slowly as he carefully picks through centuries of government policy, treaties, and legal cases. This book lacks the flair for quick summary and the lively pace of his book American Property, but the reader will come away with a deeper understanding of how the Indians lost their land.

[Jacob Woocher · Rating 4 out of 5]

Honestly this book was really good and informative but I can't give it 5 stars because I think the author consistently downplays the violence and racism and genocidal nature of settler colonial conquest. If you read this book without already having a basic understanding of this stuff, you might think of it as way more benevolent than it was, and simply "misguided" (as opposed to evil). BUT there's still lots of good stuff here about how fucked up land sales / real estate have ALWAYS been and I'm glad I read it. Also good stuff about how white "humanitarians" / liberals tried to help Indians but really they just made it worse and nobody was actually listening to what the Indians themselves wanted .... and these were pretty dramatic examples of how you really can't "reform" fucked up settler colonial institutions!

[Helen · Rating 4 out of 5]

A well-written, absorbing, volume on the evolution of government policy from colonial times through the present with respect to the acquisition of land from the Indians for reselling or granting to white settlers. The policy for hundreds of years was intended to promote white settlement/homesteading - obviously, completely at odds with our era's anti-discrimination laws.

The initial policy of allowing individual (private) land sales was replaced under the British by a policy that only allowed sales to whites by the imperial government after the Crown acquired the land from the Indians, i.e. the Indians could only sell their land to the Crown. There could be no competition among buyers, which kept prices artificially low. The low starting prices set the stage for land speculation, as acreage changed hands among the buyers.

The legal thinking/doctrines about Indian occupation of land evolved; the book explains how their land, which was the only thing they could trade to the English or Americans for manufactured goods or liquor, was steadily transferred to the government for sale to whites. Indian reservations today are a patchwork of land owned privately/individually by Indians and whites, State and federal owned land, land held in trust by the federal government for Indians, and tribal land. Government policy toward the Indians (after various efforts which were well-meaning but usually backfired) since the era of FDR, has improved in that it was recognized that whatever land remained after the eras of sales, reservations, and allotments, had to be preserved so that cultures might remain intact. Some land was even regained since then.

It ends on a somewhat upbeat note since there have been notable wins for Indians such as the Alaska settlement ("40 million acres of land and nearly $1 billion") and the Cayuga settlement of about $250 million dollars paid by NYS to the Cayugas for illegal land transactions after the Revolution.

I would recommend this book to anyone who wishes to find out exactly how the land was transferred to European ownership (mostly purchased, rarely ceded or considered taken in conquest) over the course of about 400 years.

[owlette · Rating 3 out of 5]

The book starts with an anecdote. A student had asked Stuart Banner after class how the Indians had lost their land. Banner made a reasonable guess: these land transfers were mixed cases of White settlers forcing/frauding Native Americans into giving up their land and outright conquest and forced removal. However, his own answer didn't sit well with him because it assumed little agency by the Indians to shape the terms of their land cession. This is the impetus that set him to research and write the book.


Banner, now more enlightened, answers the titular question thus: the Indians consented or were cornered into consenting to sell their land on terms that, over time, leaned more favorably toward the white settlers. The early settlers established the practice of buying lands from the Native Americans because they observed that Native Americans practiced farming and recognized the latter as rightful land owners. The white settlers weren't just being principled; in order to avoid disputes over land titles among settlers, it made sense to make land purchases from Indian property owners to notarize their land acquisition. Of course, the Native Americans rarely had leverage in these transactions because a) they had little voice in the colonial legal system; b) they could not collectively prevent the tragedy of the commons wherein individual tribe members would sell tribal territories without collective consent; and c) the well-intentioned central--British imperial and later the US federal--government failed to control the more aggressive locals--colonial settlers and later state governments--from trespassing Indian territories.


The reader will learn all this within the first two chapters. The rest of the book traces how Indian property rights were overturned into mere occupancy rights, paving the way for federal Indian policies such as reservation and allotments. Unfortunately, the shifting legal and policy landscape does not help deconstruct the image of pliant Indians. Since Banner is a law professor, I get the impression that he got stuck in the weeds of the law and missed the bigger picture. Eric Foner in his London Book Review piece mentions existing literature that does a better job of answering Banner's research puzzle and includes this trenchant line: "Like many revisionist writers, [Banner] considerably exaggerates his own originality."🔪🔪🔪


Most critically, Banner's book disproportionately relies on White voices; for every quote by a Native American, there are about twenty quotes by white British or American men--only one woman, Alice Fletcher, a 19th-century anthropologist--and the acknowledgment section does not mention any Native American research institutions or organizations. To talk about Native Americans' land dispossession without centering the lens on their experience is a major shortcoming. When Banner triumphantly notes two-thirds of the way into the book that "The size of the gap between theory and practice had always been a function of the relative power of settlers and Indians," I can't help asking, "But why?" Why wasn't there a united Native American front against the white settlers? What internal strife and anxieties slipped in that prevented their civilizational dissolution?


Again, it seems that Banner got more and more interested in how the settlers always left paper trails to legalize Indian land seizure--which is indeed an interesting question-- whereas the original research question--the far more important one--was on the mechanism of disempowerment in the face of alien civilization. I would envision that a better method of historiography would have been a micro-history in the likes of Village China Under Socialism and Reform: A Micro-History, 1948-2008 wherein a researcher conducts a case study of a Native American tribe, or multiple tribes that share a certain geographical area, and how they struggled internally and externally to adapt to their fate of disempowerment upon the advent of white English settlers.

[Jeremy Canipe · Rating 4 out of 5]

In his introduction, Professor Stuart Banner explains the origin of his book and sets out a very useful model for how he will be telling this history.

First, he realized his own uncertainty, as a college history professor to answer students questions about the issue stated in the title. Second, he suggests that a key question is how, over time, we can characterize Indian land sales as being voluntary, involuntary, or somewhere in between.

The book is divided chronologically based on changes in this process. First, early English colonizers did recognize Natives as owning their land, even where there was actual sovereignty as political units. In this time, Banner also showed how individual colonists and colonial goverments sought to buy Indian land, even as their presence and encroachment began undermining Native economic systems that assumed ownership and control over open hunting land as much as farming land.

Second, by the late colonial era and early 1800s, English colonists and new Americans were no longer in constant contact with Native people on a regular basis. Instead, they often relied on European theorists and concluded Natives were only hunters, which undermined their prior sense that Indians owned the land on which the were located. In turn, the American national government began to forbid private purchases from Native nations, in favor of only the Federal government being the sole possible buyer.

Next, the formal removal error of the Jacksonian presidency is seen by Banner as a larger scale, quicker version of the long history of individuals and governments buying Native land. Here, though, he argues, we see a much less free option for Natives. Reservations emerge thusly as another possible way to resolve the American desire to take over Native land and yet allow Native nations to remain, somewhere.

In this regard, Banner argues that white settlers refused to actually respect Native reservation's boundaries. Still, we find that settlers continued seeking to take and encroach on Indian land. Their view was that white Americans should be able to take the land and use it more intensively rather than having a continuing small number of Native people to be on this land.

The next Federal policy discussed was allotment. In the later 1800s, the Federal government sought to divide trial lands and give Native heads of household permanent title to land, to replace a Native understanding of individual ownership as being about current use rights. (He says this happened all over the world to indigenous peoples in areas colonized by English-speaking people such as in Australia). This was intended to create more incentive to productivity for Native people individually and get more Indian lands into the hands of white American colonists.

The story Banner tells ends, in any detail, in 1934. Here, the Federal government abandons allotment Even today, Native land remains possessed by Indian tribes, not be individual Native people. In a brief epilogue, Dr. Banner suggest that, in the past few decades, Native nations' rights have been much more respected in American law. He could have added, I think, a bit more about how changes in American culture has allowed for this trend. Yet, what was intriguing was his assertion that American courts are agreeing, in some cases, that many of the treaties and land sale contracts that transferred Native lands to American hands were actually legally invalid when they took place.

Very fascinating book and well worth the time spent to read it.

[Becky · Rating 5 out of 5]

I really, really loved this book. I haven't read too much on this subject and keep finding myself wondering about this, so I was very happy to have found this. This is about the legal background of what happened over the course of colonization up to the twentieth century, and gives a good chronological framework of what happened and the results. It's not an emotional or humanitarian book, although Banner does go into detail about how different sectors of the public felt during each step, including the very paternalistic humanitarians within each generation. It's interesting because at each step, there was a definite desire to protect what government considered Indian people and rights, while having very little respect for culture until the mid 20th century, and yet manages to get it so very wrong on each occasion. I really enjoyed this book and am ready to dive into more, now that I have this great background.

[Henry · Rating 5 out of 5]

In essence, the author argues that the prevalent view of Indians losing American land simply due to violence was too simplistic. In reality, much of the land purchase was made “legally”, which was rooted deeply by the Indians and the colonists - then the US government’s difference idea of land “ownership”: to the Indians, land was to be used whereas for the colonists and the US government, land was to be owned. The author argues that little by little and over time, land rights were transferred to what is like today.

[Janice]

Well, not lost. Stolen, but never lost.

[Erika · Rating 4 out of 5]

Eye-opening book that forces us to think many of the oversimplifications about how this land became the United States

[Kris Wijoyo]

baru aja dapet dari Ridho nih...