COMM 113 LIU Use of Imagery Among Native Americans in Advertising Essay

One of the signature themes in Part 2 of our course focuses on the representation of Native Americans in which we examined the images of Indigenous Americans in three critical areas: in advertising; as mascots in Sports; and in cinema.

In an essay of 4-5 pages, explain how the imagery of Native people emerged from the crucible of the 19th century, and how these images changed over time in each of the three areas. What were the primary attributes of Native people in visual images and how did these images evolve? What were some of the important markers of this transformation, and in what way can we speak of the changes that occurred in the representations of Native peoples in the context of resistance?

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Who Owns the Past?
Museums, Indigenous Artefacts
and the Native American Graves Protection and Repatriation Act
Kennewick Remains Examined at Smithsonian
Cheyanne Reburying Returned Remains (1993)
The Amerindian Transformed
Portrait of Red Cloud and his transformation in an ad for Chewing Tobacco (1872)
The Amerindian Transformed
From Indian to Artifact
Native American Cultural Artifacts
There are roughly one million different Native American cultural artefacts housed
in museums universities, private collections, and historical societies, including
600,000 skeletal remains which are generally kept out of public view.
Skeletal Remains in Museums
“It is most unpleasant to steal bones from a grave, but someone has to do it.”
Franz Boas (1888)
Native American Grave Protection and
Repatriation Act (1990)
For decades, Native Americans, tribal groups, and their representatives demanded the
repatriation of Amerindian cultural property. For the most part, the U.S. Government,
the museum community, and universities refused to negotiate the repatriation issue.
The controversy resulted from conflicting positions taken by the parties. Native
Americans assert their inherent right to regain control of their cultural objects.
Museums and universities, on the other hand, underscore their legal and ethical right
to retain possession of their artistic collections, and assert a moral right to use the
artifacts in the pursuit of knowledge and truth about the world..
Nevertheless, Congress reacted to Native American demands for repatriation and
enacted the Native American Grave Protection and Repatriation Act (1990). The law
addresses the repatriation issue and mandates the return of cultural patrimony to the
tribes.
Discovery of the Ancient One (1996)
aka ‘Kennewick Man’
Questions
How do we define cultural identity?
Who owns knowledge?
Who defines truth about history and the past?
What is the role of science in contemporary society?
What is the role of spiritual belief in modern society.
Can spirituality and science co-exist?
George Otis
Early Museums and Racial Theory
In 1868 George A. Otis, of the Army
Medical Museum, instructed military
physicians to help the Museum in
collecting Native American crania. In
1870 he concluded: “The American
Indians must be assigned a lower
position on the human scale than has
been believed heretofore.”
By the late 19th century, skeletal
remains became a key tool in a crude
Darwinist campaign for testing theories
about crania and racial inferiority that
were developing across a range of
disciplines in the United States.
Recent estimates have placed the
number of Native American remains in
U.S. museums at about 600,000.
Scientific Justification of Conquest
In the late 19th century, doctors,
anthropologists, and other scientists in
the United States and Europe came to
believe that certain behavioral
attributes of different peoples—such
as intelligence and industriousness—
could be correlated with physical
characteristics, such as the size and
shape of the skull. Some even
believed that racial attributes could be
measured and ranked on a grand scale
of humankind.
On this basis, conquest of inferior
races was justified in the context of
the hierarchy of different groups of
people. The study of crania played a
pivotal role in this “science” of the
races.
The Hunt for Crania
During the late 19th and early 20th centuries, museums and universities engaged in
full scale competitive hunt for Native American skeletal remains. The competition
between Chicago’s Field Museum of Natural History and New York’s American
Museum of Natural history was especially intense but universities were also part of
the mania. Colleges tutored white students to join in the hunt for Indigenous bones,
and local newspapers enthusiastically announced these archaeological expeditions.

Colonizing the Indigenous Dead


The Museum
Conveying ideas about inferior and superior cultures
Once the ranking of groups of people was established through study of skeletal and
especially cranial characteristics, it was but a short step to efforts at conveying this
idea to the public. The museum served this ideological function.
Anthropologists along with scientists and doctors defended this early idea of the
museum on the basis of the idea of the objective search for knowledge and truth.
Museums, alongside universities became repositories for the pursuit of knowledge
and truth through research which conveyed objective truth to society. In this way,
the museum, along with the university, became implicated in the collection of
human remains.
Conquest
The Role of the Museum in telling a Story
Conquest entails not only
territorial expansion. It also
entails an ideology predicated
on a kind of “mass
communication” to normalize,
and in many ways justify this
activity. Museums display
objects to tell a story about
conquest and subjugation that
becomes part of the collective
outlook of society. Out of
sight, however, in the so-called
attics of these establishments
were the 600,000 skeletal
remains of Native Americans.
UCSD
University House Burial Case
In 1976, Native American remains were unearthed beneath
the UC San Diego Chancellor’s residence. For the next decade
the remains were sent to other universities and exhibited in
museums as some of the oldest remains of Native Americans
ever unearthed. After passage of NAGPRA, the Kumeyaay
claimed the skeletal remains but UC argued that the bones
predated modern Amerindians and were thus not subject to
NAGPRA. In 2011, however, UC and UCSD decided that the
bones should be returned but 3 researchers including one at
UCSD sued to keep control of the skeletons. Finally, in 2016
the court denied the researchers’ appeal, enabling the
Kumeyaay council to take possession of the 9,500-year-old
skeletons.
“The university did not treat us well in the past,” said Steve
Banegas of the Kumeyaay Cultural Repatriation Committee.
“They’ve treated the remains wrong. They disregarded our
beliefs, our ways.”
Today, the remains are stored at the San Diego Archaeological
Center by mutual agreement between UCSD and the
Kumeyaay Cultural Repatriation Committee.
Robert Cruz
Protecting Amerindian
Patrimony
Native Americans had long tried
to prevent the theft of their
dead but it was not until the
1960s, in the wake of the Civil
Rights movement, that activists
turned collections into a
question of conscience.
“When a white man’s grave is
dug up, it’s called grave
robbing,” as the Tohono
O’odham activist Robert Cruz
said in 1986. “But when an
Indian’s grave is dug up, it’s
called archaeology.”
Native Americans beginning in
the 1980s began to protest at
museums and at archaeological
sites.
Wounded Knee
Cultural and Political Renaissance of Native Americans
Maria Darlene Pearson
(Hai-Mecha Eunka)
Maria Darlene Pearson was a Yankton Dakota Indian
activist who challenged the legal treatment of Native
American human remains and was arguably the primary
catalyst for the creation of the Native American Graves
Protection and Repatriation Act (NAGPRA). Many
consider her the Rosa Parks of NAGPRA.
In the early 1970s she was outraged that the skeletal
remains of Native Americans were treated differently from
white remains. Her husband, an engineer for the state of
Iowa told her that Native American and white remains
were uncovered during road construction I Glenwood
Iowa but while the remains of the 26 whites were quickly
reburied, the remains of a Native American mother and
child were sent to a lab for study instead. Pearson
protested to Gov. Robert Ray and sat outside his office
until he met with her. When Ray asked what she wanted,
Pearson replied: “You can give me back my people’s
bones and you can quit digging them up.” The ensuing
controversy led to passage of the Iowa Burials Protection
Act of 1976, the first legislative act in the U.S. that
specifically protected Native American remains.
Emboldened by her success, Pearson went on to lobby
national leaders, and was one of the catalysts for the
creation of NAGPRA.
Clara Spotted Elk
“Indians are not Specimens”
Millions of American Indians lived in this country when Columbus
landed on our shores. After western expansion, only 250,000
Indians survived. What happened to the remains of those people
who were decimated by the advance of the white man?
In 1985, I and some Northern Cheyenne chiefs visited the
Smithsonian’s Natural History Museum in Washington to review
their Cheyenne collection. After a chance inquiry, a curator pulled
out a drawer in one of the cabinets that line the attic. There were
the jumbled bones of an Indian.
Subsequently we found that 18,500 Indian remains are
unceremoniously stored in the Smithsonian’s nooks and crannies.
The museum community and forensic scientists defend these
grisly collections and refuse to return remains to the tribes that
wish to rebury them,… They want to maintain adequate numbers
of ‘specimens’ for analysis and say they are dedicated to ‘the
permanent curation of Indian skeletal remains.’
Indian people are tired of being ‘’specimens.’’ Like people the
world over, one of our greatest responsibilities is the proper care
of the dead. We are outraged that our religious views are not
accepted by the scientific community and that the graves of our
ancestors are desecrated. What would happen if the Smithsonian
had 18,500 Holocaust victims in the attic? There would be a
tremendous outcry in this country. Why is there no outcry about
the Indian collections?
Discovery of the Ancient One (1996)
aka ‘Kennewick Man’
Armand Minthorn
‘The Ancient One is our Ancestor”
After the discovery of the remains, a coalition
of Columbia River Basin Indian tribes and
bands claimed the skeleton under the 1990
law known as the Native American Graves
Protection and Repatriation Act, or NAGPRA.
The tribes demanded the bones for reburial.
“Scientists have dug up and studied Native
Americans for decades,” Armand Minthorn of
the Umatilla Tribe, wrote in 1996. “We view
this practice as desecration of the body and a
violation of our most deeply-held religious
beliefs. The remains are those of our
ancestors. From our oral histories, we know
that our people have been part of this land
since the beginning of time. We do not
believe that our people migrated here from
another continent, as the scientists do.”
The coalition announced that as soon as the
corps turned the skeleton over to them, they
would bury it in a secret location where it
would never be available to science.
Army Corps of Engineers
The U.S. Army Corps of Engineers had jurisdiction over the area where the skeleton was
unearthed and took possession of the bones. In conjunction with the requirements of
NAGPRA, the Corps then instructed the Department of the Interior to determine whether the
skeleton was related to modern day Native Americans thereby triggering requirements for
repatriation under NAGPRA. The first report concluded in 1997 that the skeleton ‘finds its
closest association with groups of Polynesia and the Ainu of Japan… not with American Indians
or with Europeans.’ A second report confirmed this finding.
Douglas Owsley
“The Kennewick bones do not resemble those of Native Americans and
therefore the NAGPRA should not not apply.”
Kennewick Man
A European in the Likeness of Patrick Stewart (Captain Kirk)
Kennewick Remains Given ‘Cave’ Features
Armand Minthorn
We Know where we came from.
Native Americans, however, did not
take kindly to the idea that one of their
ancestors might have looked like the
captain of the Starship Enterprise. The
Ancient One was one of their
ancestors, not some wandering
European or even Polynesian.
‘Our oral history goes back 10,000
years. We know how time began and
how Indian people were created. They
can say whatever they want, the
scientists. They are being
disrespectful.’
The tribes then took their case to
Bruce Babbitt and the Interior Dept.
Bruce Babbitt
Secretary of the Interior
As a result of these 2 reports, Native
Americans nevertheless organized and
lobbied the government saying that the
reports were faulty in the way they
came to their findings. Native
Americans insisted that oral history of
the region revealed that the Ancient
One was their ancestor and argued
their case to the Secretary of the
Interior, Bruce Babbitt in 2000.
Surprisingly, Babbitt who was a lawyer
and from Arizona, was sympathetic to
the Amerindian claim.
‘I was persuaded’ Babbitt admitted “by
the geographic data and oral histories
of the five tribes that collectively assert
they are the descendants of people
who have been in the region of the
Upper Columbia Plateau for a very long
time.’
The Case from 2002-2005
In August 2002 Judge John Jelderks overturned Babbitt’s decision and ordered the US
government to let scientists study Kennewick Man.
Almost immediately the 5 Indian tribes — and the US government — lodged an
appeal. In February 2004, the appeals court decided in favor of the scientists.
It still took over a year for the government to accept the scientists’ protocols for
studying the skeleton. On 6 July 2005, almost 9 years since the skeleton was
unearthed a team of researchers gathered at the Burke Museum of Natural History
and Culture in Seattle for a 10-day initial ‘measurement and observation trip.
In 2014, the results of this forensic examination yielded a startling result. DNA
experts concluded that the Ancient One was indeed the ancestry of modern Native
Americans of the Northeast. The tribes won the right to rebury him.
Tiffany Jenkins
Keeping Their Marbles:
How the Treasures of the Past Ended up in Museums, and Why They Should Stay There

Chip Colwell
Return the Artifacts

The Debate
For scientists, the idea that the bones belong to any
one group is abhorrent. ‘I assume that no living
culture, religion, interest groups or biological
population has any moral or legal right to the
exclusive use or regulation of ancient human
skeletons since all humans are members of a single
species’, argues Douglas Ubelaker, a bioarchaeologist
from the Smithsonian Institute. ‘Ancient skeletons
are the remnants of evolutionary events which all
living and future peoples have the right to know
about and understand. In effect, ancient human
skeletons belong to everyone.’ Any story about
human origins that aspires to be more than myth
must be anchored by facts. ‘Native American beliefs
about the past and the dead deserve respect, but
they should not be allowed to dictate government
policy on the investigation and interpretation of early
American prehistory’, write Robson Bonnichsen, one
of the plaintiffs in the court case. ‘If a choice must be
made among competing theories of human origins,
primacy should be given to theories based on the
scientific method built from empirical evidence; only
scientific theories can be verified or overturned.’
For Amerindians, the myths by which they live reveal why
Kennewick Man belongs to them. ‘If this individual is
9,000 years old, that only substantiates our belief that he
is Native American’, claims Armand Minthorn of the
Umatilla tribe. ‘From our oral histories, we know that our
people have been part of this land since the beginning of
time. We do not believe that our people migrated here
from elsewhere, as the scientists do.’ History is
something given, not something to be studied. ‘Some
scientists say that if this individual is not studied further,
we, as Indians, will be destroying evidence of our own
history’; We know our history. It is passed on to us
through our elders and through our religious practices.’
As for science, many Native Americans treat it with
suspicion. ‘History proves that archaeology has a political
context, which can be used to help or harm Native
Americans,’ argues Rebecca Tsosie, director of the Indian
Legal Program at Arizona State University, ‘The discipline
of science, like history, is not neutral.’ Many
archaeologists agree. ‘It is simply untrue’, David Hurst
Thomas suggests, to assume that anthropologists provide
‘an objective telling of events… Like it or not, the
historical disciplines are products of Western tradition,
and even anthropologists, protest as they might, are the
prisoners of their own cultural backgrounds.’
YZ
How the Indians Lost Their Land
HOW THE INDIANS
Y LOST Z
THEIR LAND
Law and Power
on the Frontier
YZ
Stuart Banner
Th e Be lknap Pre ss of
Harv ard U niv e rsity P r e ss
Cambridge, Massachusetts
London, England
Copyright © 2005 by the President and Fellows of Harvard College
All rights reserved
Printed in the United States of America
First Harvard University Press paperback edition, 2007
Library of Congress Cataloging-in-Publication Data
Banner, Stuart, 1963–
How the Indians lost their land :
law and power on the frontier / Stuart Banner.
p. cm.
Includes bibliographical references and index.
ISBN-13 978-0-674-01871-6 (cloth: alk. paper)
ISBN-10 0-674-01871-0 (cloth: alk. paper)
ISBN-13 978-0-674-02396-3 (pbk.)
ISBN-10 0-674-02396-X (pbk.)
1. Indians of North America—Land tenure.
2. Indians of North America—Legal status, laws, etc.
3. Indians of North America—Government relations.
4. Indian land transfers—United States—History.
5. Property—United States.
6. Land tenure—Law and legislation—United States.
7. Land tenure—Government policy—United States.
8. United States—Politics and government.
9. United states—Race relations. I. Title.
E98.L3B36 2005
333.2—dc22
2005043617
Designed by Gwen Nefsky Frankfeldt
YZ
Contents
Introduction
1
2
1
Native Proprietors
10
Manhattan for Twenty-four Dollars
3
4
5
From Contract to Treaty
A Revolution in Land Policy
From Ownership to Occupancy
6
7
Removal
191
Reservations
8
Allotment
Epilogue
228
257
291
Notes 297
Acknowledgments
Index
338
337
85
112
150
49
YZ
How the Indians Lost Their Land
Introduction
Between the early seventeenth century and the early twentieth century, almost all the land in the present-day United States was transferred
from American Indians to non-Indians. But how did that happen? Did
the Indians sell it? Was it taken from them by conquest? Or does the
truth lie somewhere in the middle? And where exactly is the middle?
The answers to these questions are not simple. Even to say why they are
not simple requires some explanation.
Several years ago a student asked me whether the Indians sold their
land or had it taken from them, and I responded with the offhand answer I suspect many would give. There were transactions called “treaties,” I explained, but of course they weren’t genuine contracts, because
the Indians didn’t consent to sell their land. Indians had different conceptions of property than European settlers had, I said, so they couldn’t
have understood what the settlers meant by a sale. The Indians were really conquered by force, I told the student, but Americans and their
British colonial predecessors papered over their conquest with these
documents to make the process look proper and legal.
The student seemed satisfied with my answer, but it bothered me
even as I was giving it. For one thing, my explanation was internally inconsistent. Were the Indians tricked into selling their land? Or were they
forced into selling it? Either way, moreover, my answer seemed to require implausibly pliable Indians. Was it true that the Indians didn’t
know what the settlers meant by a sale? Many land transactions occurred in places where there had already been considerable contact between Indians and settlers. Shouldn’t the Indians have been able to fig-
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How the Indians Lost Their Land
ure out the consequences of a land sale, especially if it was not the first
sale in the area? If so, why would the Indians keep on signing? What was
the relationship between violence and land transfer?
When I tried to imagine myself as an Indian or a settler, I only became
more confused. If I had lots of land, and I wanted to obtain useful things
like guns or tools, why wouldn’t I sell some land? What else could I sell?
Was I too quick to assume that the Indians could not have consented to
sell their land? If the transactions were unfair to the Indians, might that
unfairness have been manifested, not in whether or not land was sold,
but rather in the quantities that were sold or the prices the sellers received? And if I were a settler planning to seize the Indians’ land, why
would I go to the trouble of tricking or forcing them into signing a piece
of paper? What kind of conqueror takes such care to keep up the appearance that no conquest is taking place? Indeed, if land was cheap and
conquest dangerous, wouldn’t I prefer paying a little money to risking
my life? Could Anglo-Americans really have been so much bolder or
more miserly in the past? If settlers purchased land from the Indians
because that was easier than seizing it, was there still something inauthentic about the transactions? Or was I being too quick to assume that
they could not have genuinely intended to buy the Indians’ land?
I was also bothered by the timeless and regionless quality of my response. I was implicitly lumping transactions from the 1600s and the
1900s together in a single category, as if nothing had changed in more
than three hundred years, and as if events in Rhode Island and Georgia,
Minnesota and Arizona, all happened in the same way. Did methods of
land transfer change over time? Did they vary between parts of the
country? Similarly, I was lumping all “Indians” and all “settlers” together as character types rather than seeing them as diverse groups of
people with a wide range of interests and motivations. American historiography was once populated by noble settlers and savage Indians; now,
more often than not, it is populated by noble Indians and savage settlers. I wondered whether there might be a more intelligible story to be
told in which whites disagreed among themselves over whether and
how to acquire land, and in which Indians disagreed among themselves
over whether and how to sell it.
The more I read, the more inconsistencies I discovered in what has
been written on the subject. Histories of British colonial Indian policy,
for instance, often describe a world in which settlers believed they had a
right to take land away from Indians by force. Some of these very same
Introduction
Y3
histories, however, include accounts of land purchases, transactions that
at first sight are hard to square with a belief in a right of conquest. The
law of the past as recounted in court opinions, to pick another example,
sometimes looks very different from the way it has been described by
historians. I found myself wishing for a book that would synthesize all
this material into a comprehensible whole.
These inconsistencies arise, I think, because much of what has been
written on Indian land acquisition implicitly assumes that conquest and
sale are mutually exclusive alternatives that exhaust the possible methods of land transfer. Most often this assumption takes the form of
straightforward descriptions of the acquisition of land by one method or
the other, either as a simple conquest, with no suggestion that the transaction involved any free will on the part of the Indians, or as a simple
purchase, with no suggestion that any element of compulsion was involved. It can also take the form of an implicit claim that by rejecting
one method the author has proven the other. Sometimes an author suggests that because a given transaction or set of transactions involved no
force on the part of the buyers, the land was purchased fair and square.
Sometimes an author points out that a given transaction included egregious fraud on the part of the purchasers, or the presence of armed men
within the sight of the sellers, and concludes that the Indians must have
sold the land against their will. These styles of argument all rest on the
mistaken assumption that land transfers can be categorized dichotomously as either voluntary or involuntary, as instances of either contract
or conquest.
As analysts of the legal system have pointed out for some time, however, there is no sharp distinction between voluntariness and involuntariness. The difference between them is one of degree, not kind. All
human activity is performed under constraints. These may vary in their
strength, but there is no point at which one can say that constraints have
become so confining as to tip an action from one category into the other.
In deciding whether to enter into employment contracts, for instance,
workers are constrained by their need to earn money to obtain food, by
the range of jobs within commuting distance of their homes, by the educational opportunities they had when they were young, by the state of
the economy, and so on. Their decision to sign the contract is voluntary
in some senses and involuntary in others. We can say the same thing
about transactions in Indian land. Any given decision on the part of Indians to sell land, like any decision made by anyone about any subject,
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How the Indians Lost Their Land
may be more or less voluntary, along a continuum that lacks any dividing
line between categories. There is a large middle ground between conquest and contract.
This idea of a spectrum bounded by poles of conquest and contract is
helpful, I think, in understanding how the Indians lost their land. At
most times, and in most places, the Indians were not exactly conquered,
but they did not exactly choose to sell their land either. The truth was
somewhere in the middle. The interesting question about Indian land
sales is not whether they were voluntary or involuntary, but where they
were located within that middle ground at any given time or place.
To put the matter in perhaps a more useful way, every land transfer of
any form included elements of law and elements of power. No nonIndian acquiring Indian land thought himself unconstrained by AngloAmerican law. Whites always acquired Indian land within a legal framework of their own construction. Law was always present, but so was
power. The more powerful whites became relative to Indians, the more
they were able to mold the legal system to produce outcomes in their favor—more sales, of larger tracts, at lower prices than would have existed
had power relationships been more equal.
From the Indians’ perspective, the overarching story from the early
seventeenth to the early twentieth century is thus one of decline. In the
seventeenth century, when Indians and whites were close to equally
powerful, transactions in Indian land often increased the well-being of
both sides. These early land sales were as close to the “contract” end of
the continuum as they would ever be. As time went on, the power relationship between the two sides became more and more lopsided, and
transactions moved ever closer to the “conquest” end. By the late nineteenth century, there was little pretense that land cessions were voluntary in any meaningful sense of the word, even as they retained the form
of negotiated treaties.
Even then, however, the law was not meaningless. As the legal system came to express non-Indians’ power over Indians, it nevertheless
continued to constrain the way non-Indians acquired Indian land. Settlers on the frontier and the local governments accountable to them often pressed against the limits of that framework (and sometimes passed
over them) in their eagerness to get the Indians’ land, but at all times
there were influential people, first in London and then in Washington,
who were genuinely interested in protecting the Indians from settlers.
There has always been a tension between the capital and the frontier,
Introduction
Y5
between the center and the periphery. Even in the darkest period of settler–Indian relations, the formal law has had some bearing on events.
And today, when Indians are sometimes able to win redress for the misdeeds of the past, the law of the past is still relevant—in some cases
even more relevant than it was at the time—because it is still the standard by which the actions of the past are measured within the legal system. Thus there are two parallel stories to tell: one about how the Indians actually lost their land, and another about the law that in principle
governed how the Indians were to lose their land. Neither story can be
understood without the other.
Formal law and actual practice could diverge, sometimes quite markedly, because policies conceived in the capital have always needed to be
implemented on the frontier by local officials with the capacity to subvert the intentions of easterners. The Indian land policy in effect at any
given time was determined only in part by the balance of power between whites and Indians. It was also largely determined by the balance
of power between eastern whites and western whites, and by the communication and transportation technologies through which officials in
the capital could (or could not) constrain their agents in the field. At almost every step of this story we will find government officials unsuccessfully trying to keep far-off settlers from antagonizing the Indians,
even if only to avoid incurring the cost of war.
What it means to “protect” the Indians, of course, is itself a contested
question. For most of American history, whites interested in helping the
Indians believed and said things that are no longer considered as helpful
as they once were. The humanitarians of the seventeenth through the
early twentieth centuries did not think that Indian ways of life were as
good as their own. Most of them were not interested in preserving traditional Indian forms of politics, or culture, or land tenure. To be a humanitarian was to believe that with proper training Indians were capable of
becoming as “civilized” as whites, and that the compassionate thing to
do was to offer that kind of training—in Christianity, in European-style
agriculture, in literacy, and in all the other characteristics of civilized life.
To the progressive thinkers of the era, to allow the Indians to go on living as they always had was to consign them to misery, both in this life
and in the next. The intellectual descendants of such thinkers now believe precisely the opposite. That transformation in thought took place
in the twentieth century. One of its effects has been to obscure the variety of opinion among whites in the preceding three centuries, because
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How the Indians Lost Their Land
from today’s perspective all shades of white opinion are susceptible to
criticism. That diversity of opinion, however, was once much more visible.
Conflict between eastern white humanitarians and western white
land-grabbers was a constant, but each major twist in Indian land policy
required the support of both groups. Removal in the early nineteenth
century, reservations in the middle and late nineteenth century, allotment in the late nineteenth and early twentieth centuries—all were
supported simultaneously by pro-Indian reformers and by anti-Indian
expansionists. The road to Indian land loss has always been paved with
both good and bad intentions. These coalitions explain the cycle of optimism and disappointment that has always characterized Indian land
policy, particularly in the century and a half after the Revolution. Reformers have consistently launched new programs with high hopes, only
to see those hopes dashed in practice, after policies devised by wellintentioned easterners have been implemented in the field by less wellintentioned westerners.
Whites were never a single bloc with uniform interests, and neither
were Indians. At all times there have been Indians with good reasons to
sell land and others with good reasons not to sell. Many Indians opposed
policies like removal and allotment, but many others supported them as
the least bad of the available options, and those were not unreasonable
positions at the time. Indians were no more monolithic in their views
than whites.
In the end, the story of the colonization of the United States is still a
story of power, but it was a more subtle and complex kind of power than
we conventionally recognize. It was the power to establish the legal institutions and the rules by which land transactions would be enforced.
The threat of physical force would always be present, but most of the
time it could be kept out of view because it was not needed. AngloAmericans could sincerely believe, for most of American history, that
they were not conquerors, because they believed they were buying land
from the Indians in the same way they bought land from each other.
What kind of conqueror takes such care to draft contracts to keep up the
appearance that no conquest is taking place? A conqueror that genuinely
does not think of itself as one.
Before beginning, a few points may require some explanation.
This book is about the acquisition of property in land, not the acquisition of sovereignty over territory. Property means ownership; sovereignty
Introduction
Y7
means the right to govern. The United States and California both have
sovereignty over the land on which my house sits, but they don’t have
property rights in it. We often say colloquially that a particular zone of
land “belongs” to this or that country without specifying whether we
mean to speak of property or sovereignty, but one has to be more precise
when discussing the relationship between whites and Indians, because
the history of the acquisition of the Indians’ property is very different
from the history of the acquisition of sovereignty over the areas where
the Indians lived.1
From the seventeenth century through the twentieth century, AngloAmericans consistently asserted sovereignty over American Indians
without the Indians’ consent. They believed that this sovereignty followed from the British discovery and settlement of the part of North
America that is now the United States. The boundaries of the entity
called “New York,” just to pick one example, encompassed large tracts
of land inhabited by Indians who had never agreed to be included. After
the Revolution, the boundaries of “the United States” likewise encircled all sorts of people who had been given no say in the matter. These
claims of sovereignty often far outreached the actual capacity of AngloAmericans to govern particular areas—indeed, at many times and places,
Indians could have lived to old age without ever discovering that they
were located within the nominal sovereignty of an Anglo-American jurisdiction. This continual assertion of sovereignty was based on an assumption of white superiority that was uncontroversial among whites at
the time.
To be sure, American law has always treated tribes as sovereigns in
their own right, in the sense that tribes have always exercised powers of
self-governance, powers that have fluctuated in their extent over time.
But that treatment has never been inconsistent with the broader assertion of white sovereignty over Indians. White Americans routinely
distinguished, for example, between “American” Indians, “British” Indians, “French” Indians, and so on, based on which nation claimed sovereignty over the territory where the Indians lived, even while Indian
tribes were sovereign within their own domains.
The assertion of sovereignty over a given area occupied by Indians
normally preceded, sometimes by quite a long time, the acquisition of
the Indians’ property rights in that area. The founding of colonial Massachusetts, for instance, long predated the acquisition of Indian property
rights in the western parts of the colony. The Louisiana Purchase pre-
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How the Indians Lost Their Land
ceded by several decades some of the treaties by which Indian tribes located within the Purchase’s boundaries ceded their property rights. To
say that the Indians were subject to the sovereignty of the United States
did not mean that their land was owned by the United States. Property
and sovereignty are separate issues, and they were treated as separate issues as far back as the seventeenth century.
Acquisitions of territory from Indians, therefore, were in a different
category from acquisitions of territory from European nations. When the
United States (or Britain, before the Revolution) acquired territory in
North America from a European country, it was acquiring sovereignty
over that territory. Purchases from Indian tribes, by contrast, were primarily transfers of property. The two concepts could be intermingled in
practice, in the sense that the acquisition of territory sometimes took
place at a time when the actual governance of that territory shifted from
Indians to whites. At such times, Anglo-Americans sometimes spoke of
the transactions as transfers of effective sovereignty as well as conveyances of property. Even then, however, Anglo-American governments
were not acquiring any new claims to sovereignty. They were merely beginning to exercise in practice a sovereignty they had asserted in principle all along.
In telling this story, I use the word Indian (rather than Native American
or any similar alternative) because that is the term most often used in
historical and legal scholarship today, by Indians and non-Indians alike.
What it means to be an “Indian,” legally and culturally, is and always has
been a complicated question, but it is a question I do not address here.
There is unfortunately no good word for non-Indians. Sometimes I
speak of non-Indians as “whites,” but of course not all of them were
white. Sometimes I call them “Anglo-Americans” or (in the colonial period) “Britons,” but not all of them traced their ancestry to England or
even Britain. Sometimes I call them “Euro-Americans,” but they were
not all from Europe. Sometimes I call them “settlers,” sometimes “colonists,” and sometimes I just call them “non-Indians.” I use all these
terms as synonyms, even though I realize they are not, because it feels
awkward to say “non-Indians” over and over again. All these terms harbor the same complications as Indian. What it means to be “white,” for
instance, or to be a “colonist,” is not a simple matter, but again these are
questions I do not address.
I use the word property to describe the way both Indians and nonIndians organized rights to use land, but I certainly do not mean to
Introduction
Y9
imply all the connotations that sometimes go along with the word. To
the extent that the idea of property rights implies enforcement by a central state, for example, or a market for their transfer, the word property is
no doubt misleading as applied to precontact Indian life. Nor do I mean,
by speaking of Indian property rights, to imply that the Indians’ conception of the relationship between land and people was the same as the
non-Indians’ conception. I use the word property in its most culturally
neutral sense, to mean only the intellectual apparatus by which a group
of people organizes who will get to use which resources located on
which land. On this definition, every known society in the history of the
world has had property. As we will see, the Indians had property just as
much as the settlers did; they just organized it differently.
Finally, when I began this book I expected to include a series of
maps, showing snapshots of the extent to which land had been transferred from Indians to non-Indians at various points in time. I soon realized, however, that the creation of such maps would require taking sides
in a very large number of past and present disputes. There are many
zones within the United States that were never acquired by contract or
treaty, there are others that were obtained in treaties that were never
ratified by the Senate, and there are still others acquired in ratified treaties the legitimacy of which was bitterly contested; indeed, some are
still bitterly contested by the descendants of the ostensible sellers. How
could such areas be drawn on a map?2 One would need (1) a complete
knowledge of the facts surrounding all acts of land acquisition in the entire country and the opinions of all the parties thereto, and (2) a set of
rules for distinguishing valid from invalid claims. If anyone possesses
the former, it isn’t me. As for the latter, the way such rules have changed
over time, on paper and in practice, is the very subject of this book. The
rules themselves have always been contested and in flux. Better to include no maps, I decided, than to publish maps that would inevitably
convey a false sense of certainty.
Y
1
Native Proprietors
The English colonists who arrived in North America saw a vast amount
of land. They met many people who lived on the land. Wherever they
went, they had a decision to make: Did the Indians own the land? Were
the English bound to purchase it, or could they simply take it?
The issue was a controversial one in the earliest years of colonization,
eliciting a variety of theories on both sides. By the late seventeenth century, however, English government officials settled on an answer. In
principle, if not always in practice, the English recognized the Indians as
the owners of North America. If the English wanted Indian land, they
would have to buy it.
The point deserves some emphasis, because the dominant view
among historians of the colonization of North America is that the English did not recognize Indian property rights. The leading environmental
history of the colonies depicts English colonists who “rationalized their
conquest of New England . . . by refusing to extend the rights of property to the Indians.” The best study of the intellectual underpinnings of
early English colonization relates that in colonial North America “the argument from vacancy (vacuum domicilium) or absence of ownership (terra
nullius) became a standard foundation for English and, later, British dispossession of indigenous peoples.” Essays specifically about colonial
English conceptions of Indian property rights have titles that accurately
describe their contents: one is called “The Moral and Legal Justifications for Dispossessing the Indians,” another “The Puritans’ Justification for Taking the Land.”1
Native Proprietors
Y 11
The most thorough study of the legal beliefs underlying the English
colonization of North America, Robert Williams’s The American Indian in
Western Legal Thought, reaches the same conclusion. Williams traces European “discourses of conquest” back to the Crusades, to demonstrate
that the earliest English settlers considered themselves justified in seizing the Indians’ land. English colonists believed that the Indians “possessed no rights that civilized English monarchs or subjects were bound
to recognize,” Williams argues. As a result, the “Indians could be dispossessed of the lands they claimed by a race of cultivators destined by
Providence to plant the seeds of a superior civilization in the New
World.” And this belief that the Indians lacked any property rights in
their land, Williams concludes, lasted throughout the colonial period,
providing “a firm and self-assured foundation for pursuit of the English
will to empire in the New World through the American Revolutionary
era.”2
This view is shared by the other occupational group with an interest
in the issue—lawyers. In Johnson v. M’Intosh (1823), Chief Justice John
Marshall explained that “all the nations of Europe, who have acquired
territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the
lands occupied by the Indians.” Because the English had not treated
the Indians as property owners, the Supreme Court held, neither must
the United States.3
In the nearly two centuries since, lawyers and judges have always
treated Johnson v. M’Intosh—“the great case of Johnson v. McIntosh,” the
Supreme Court called it in the 1950s—as one of the cornerstones of
American law. Johnson’s continuing prominence is reinforced every year
in law schools, where it is the very first case most beginning students
read in their required course in Property. The best-selling Property
casebook calls Johnson “the genesis of our subject” because it lays “the
foundations of landownership in the United States.” Given current sympathies for the Indians, the outcome of the case has come to be viewed
with disapproval in law school. Johnson has joined Dred Scott v. Sandford and a few others to form a small canon (or maybe an anti-canon)
of famous cases law students are taught to criticize. The leading casebook describes the philosophy underlying Johnson as “discomfiting,”
and quotes with approval the recent view of a law professor that Marshall’s opinion “was rooted in a Eurocentric view of the inferiority of the
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How the Indians Lost Their Land
Indian people.”4 Johnson, though, might be the only member of this
anti-canon that remains the law, and that is still cited as authority by
lower courts several times a year.
I will argue against this near-consensus among historians and lawyers,
but a few words of caution may first be necessary. The principle of Indian landownership was never recognized with unanimity. There were
always some English colonists, and sometimes even some colonial governments, willing to take land from the Indians without paying for it. All
laws are violated sometimes, and this one was probably violated more
than most. As the English population of the colonies grew, so did the
English demand for Indian land, and incidents of trespassing grew more
frequent. But if one is interested in overall English colonial land policy,
in how the English treated Indian land as a general matter, the answer is
that they treated the Indians as owners of their land.
That the English normally recognized Indian property rights does not
imply that the English were as concerned with the Indians’ welfare as
they were with their own, or that they considered the Indians their
equals.5 The English had several reasons to buy the Indians’ land, none
of which depended on liking the Indians or wishing them well. By recognizing the Indians as owners of their land, the English were helping
themselves, not the Indians.
Finally, that the English normally purchased Indian land says nothing
about whether, from the Indians’ point of view, the transactions were
voluntary in any meaningful sense, or whether the Indians interpreted
the sales the same way the English did, or whether the Indians were
sometimes defrauded by individual settlers or even by colonial governments, or whether the prices were fair, or whether large-scale land purchasing would turn out to have devastating effects on Indian life. Such
issues will be taken up in Chapter 2. The purpose of the present chapter
is to demonstrate a single point: that after some controversy in the early
years, the English normally acknowledged that Indian land had to be
obtained by contract, not by force.
Intricasy, Perplexity, and Replication
Soon after the Virginia Company’s ships had safely arrived at Jamestown, the Company turned to the next pressing matter—public relations. Members recognized that colonization was controversial, in part
because of doubts as to whether the English could legally settle on a
Native Proprietors
Y 13
continent everyone knew to be already inhabited. One member accordingly proposed “that some forme of writinge in way of Justification of
our plantation might be conceived, and pass, (though not by publique
authorytye) into many handes.” But after some debate the Company
decided against the proposal. Publishing a defense of the project, the
Company reasoned, was likely only to provoke criticism. The firm’s
“pen-adversaries . . . will wright agaynst the lawfulnes of plantation” in
America to such an extent that the issue “must necessarily grow to disputation of so much intricasy, perplexity, and replication, as shall conduce unto theyr end of slackening us” from continuing to settle Virginia.
The Company was well aware that this precise debate over the legality
of obtaining land in America had taken place in Spain in the previous
century, a debate that in the Company’s view had only delayed Spanish
colonization.6 It would not be long, the Company realized, before issues
of sovereignty and property would become hot topics in England as
well. “We shalbe putt to defend our title, not yet publiquely quarreled,
not only comparatively to be as good as the Spaniards,” a question of
which European nation had sovereignty over Virginia, “but absolutely to
be good agaynst the Naturall people,” the Indians. The latter question
was one of property: Did the Virginia Company have any right to occupy
the Indians’ land? In the end, “some thought it better to abstayne from
this unnessisary way of provication, and reserve ourselves to the defensive part, when they shall offer any thing agaynst us.”7 The Company
would lie low for the time being.
But the issue would not go away. Even the ministers who preached
sermons to the Virginia Company spoke of it. In his sermon delivered in
February 1609, William Crashaw observed that the “first and fundamentall” objection to the new colony in Virginia “is the doubt of lawfulnes
of the action.” Was it right to take land from the Indians? Crashaw insisted that it was not right. “A Christian may take nothing from a Heathen against his will, but in faire and lawfull bargaine,” Crashaw explained. He cited precedent to support his argument. “Abraham wanted
a place to burie in, and liked a peece of land,” Crashaw recalled, “and
being a great man, and therefore feared, a just and meek man, and therefore loved of the heathen, they bad him chuse where hee would, and take it.”
But Abraham would not. “No, saith Abraham, but I will buie it, and so
he paide the price of it: so must all the children of Abraham doe.” The
lesson, Crashaw concluded, was that the Virginia colonists must “take
nothing from the Savages by power nor pillage, by craft nor violence,
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How the Indians Lost Their Land
neither goods, lands nor libertie.” How then was the colony to acquire
the land it would need? Crashaw had an answer. “We will exchange with
them for that which they may spare, and we doe neede,” he asserted, “and
they shall have that which we may spare, and they doe much more
need.” Fortunately the Indians had plenty of land to spare, “in so much
as a great part of it lieth wild & inhabited of none but the beasts of the
fielde, and the trees.” Nevertheless, Crashaw affirmed, the colonists
would have to buy it.8
A few weeks later the Virginia Company heard from a different minister, William Symonds, who sermonized on the same theme. “There is
one scruple, which some, that thinke themselves to be very wise, do cast
in our way,” Symonds noted. “The countrey, they say, is possessed by
owners, that rule, and governe it in their owne right: then with what conscience, and equitie can we offer to thrust them, by violence, out of their
inheritances?” Symonds posed the same question Crashaw had raised,
but he had a very different answer. The critics’ mistake, Symonds concluded, was to suppose that “it is not lawfull to invade the territories of
other princes, by force of sword,” when in fact human history was largely
a catalogue of invasions and wars, with the winners taking the land of
the losers.9 The English had every right to seize Virginia by force.
Two ministers, two theories of property. Even on Sundays the Virginia
Company could not escape argument over whether Indian land could be
seized or had to be purchased. The ministers were representative of the
wider culture. In the early seventeenth century, settlement posed an unsettled question.
The difficulty concerned property, the question of who owned the
land in North America, not sovereignty, the question of who had the
power to govern in North America. To be sure, the line between the two
concepts was not drawn as sharply in the seventeenth century as it is today. Vestiges of feudal tenure still lingered in England, where land had
once been held of the Crown rather than owned outright. In the colonies, however, sovereignty and property were usually understood as distinct issues, because each pitted the English against a different opponent. Sovereignty involved the competing claims of England and other
European nations, while property involved the competing claims of
England and the Indians.10 Sovereignty, the English agreed, belonged to
the English Crown, by virtue of the English “discovery” and settlement
of North America. Indian tribes might retain powers of self-government
within the territories they occupied, but those territories were located
Native Proprietors
Y 15
within larger zones of sovereignty allocated to European nations on the
basis of discovery. “This Right arising from the first discovery,” affirmed
Harman Verelst, one of the promoters of the colony of Georgia, “is the
first and fundamental Right of all European Nations, as to their Claim of
Lands in America.” The Indians were not recognized to have any legal
capacity to withstand an assertion of sovereignty by a European government. As settlers performed the ritual acts they understood to confer
sovereignty on their monarchs, the Indians watched from the side, without any role to play.11 Among the English, there was nothing controversial about their power to govern in North America.12 The hard question
was one of property. Who owned the land?
The English government embarked on colonization with the optimistic 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 under way, and where the English were taking
land by force rather than purchasing it. Most of the subsequent charters
included similar clauses. They were generally written before any permanent settlements had been attempted in the colony in question, so
little was known in England about who would be there to greet them
when the first settlers arrived. Only in Providence, settled by Roger Williams and his followers before they sought official recognition from the
government, did the charter acknowledge that there was more to the issue than could be seen from London. The Providence charter recognized that the settlers had moved beyond the bounds of earlier charters,
and “have also purchased, and are purchasing of and amongst the said
Natives, some other Places, which may be convenient both for Plantations, and also for building of Ships, Supply of Pipe Staves and other
Merchandize.”13 But Providence was unusual. Most of the charters
granted property rights as if the charters’ recipients were to be the first
human beings in the area.
In this view the government was hardly alone. Many early theorists of
colonization assumed likewise that a patent from the Crown was all that
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How the Indians Lost Their Land
was necessary for an English settler to claim property in North America.
There were a few theories in circulation in the early seventeenth century justifying the right of settlers to occupy Indian land without purchasing it.
Some early writers asserted that Christians had the right to take land
from non-Christians. Because Virginia was “voide of Christian inhabitants,” William Strachey asked, “may it not then be lawfull nowe to attempt the possession of such lands?” Such was the view of the directors
of the Virginia Company, who were no closer to Virginia than was the
English government. In 1622 the Company refused to recognize a land
purchase made from the Algonquian chief Opechancanough because to
do so would require acknowledging the property rights of “that heathen
Infidell.” Robert Gray, one of Virginia’s early propagandists, proclaimed
that “all Polititians doe with one consent, holde and maintaine, that a
Christian king may lawfullie make warre uppon barbarous and Savage
people.” The point could be made more benignly. One of the commonly professed reasons for venturing to North America was to introduce the Indians to Christianity. Surely that was a benefit the Indians
would find to be well worth some land, a benefit that might justify taking land even before the Indians realized how good a bargain they were
getting.14
But the notion that the heathen lacked property rights was controversial, even in the earliest years of colonization. “Neither yet is it lawfull
for Christians, to usurpe the goods and lands of Heathens,” insisted
Samuel Purchas, an ardent supporter of colonization; “for they are villains not to us; but to our and their Lorde.” The treatise-writer Hugo
Grotius found it “shameless . . . to claim for oneself by right of discovery
what is held by another, even though the occupant . . . may hold wrong
views about God.” As time went on, and the English settled more of
North America, the religious justification for acquiring land virtually disappeared. Cotton Mather thought the Indians “infinitely barbarous,”
but he nevertheless insisted that “the Indians had not by their Paganism
so forfeited all Right unto any of their Possessions” that the English
could simply take their land. No Indian land could be settled, Mather
explained, “without a fair Purchase and Consent from the Natives.” By
1691 the Massachusetts minister John Higginson mocked “the Popish
Principle, that Christians have a right to the Lands of Heathen,” a principle that might suit Catholics but one “disowned by all Protestants.”
“That we have any Claim upon the Foot that we were Christians, and
Native Proprietors
Y 17
they Heathen,” Jeremiah Dummer scoffed in 1721, was something that
“no Body will say.” The assertion that Christians had the right to take
the property of non-Christians can scarcely be found in Britain or British
America after the early seventeenth century.15
Other early writers claimed a more general right of conquest, arising
not out of Christianity but from sheer power. One advocate of colonizing
Virginia had no trouble explaining “how we can warrant a supplantation
of those Indians, or an insuasion into their rights and possessions.” The
answer: “Honourable I graunt is just Conquest by sword.” “Where can
witt and worth be more truely exprest,” asked Robert Wintour, one of
the original promoters of Maryland, than “in conquering nations[?]” In
1614, when the Virginia Company’s lawyer was called before the House
of Commons to defend the Company’s activities, he explained that the
Company was in the midst of a just conquest.16
Proponents of conquest could draw on a common fund of knowledge
of human history, which was full of episodes in which groups had
planted colonies on the land of others. “The Hebrewes, and Lacadaemonians, the Goths, the Grecians, the Romanes, and the rest, what was it
they would not undertake to enlarge their Territories[?]” John Smith
pointedly asked. “And what have ever beene the workes of the greatest
Princes of the earth, but planting of countries, and civilizing barbarous
and inhumane Nations, to civilitie and humanitie?” The conquest of
weaker people had a long and honorable history. It could hardly be
wrong to do something that had brought so much glory to the Greeks
and the Romans. And of course everyone knew of examples right at
home—the Norman Conquest, in which an invading army had taken
much of the country’s land, and the Anglo-Saxon conquest before that.
“Some have a sly whispering slighting way of Reflecting upon those that
Transplant themselves and Interest into America, as men of unsetled
brains,” complained William Loddington in the late seventeenth century. “Let such consider, what a Country England it self had now been, if
their Ancestors had not had Plantation Principles. If their brains had not
been thus unsetled, these grave men had not had such pleasant and
profitable Setlements as they have. . . . England was once as rough and
rugged as America, and the Inhabitants as blind and barbarous as the
Indians.”17
But this asserted general right of conquest was no less controversial
than the supposed right of Christians to take the land of heathens. International law already distinguished between just and unjust conquests,
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How the Indians Lost Their Land
and it was understood that the simple desire to obtain the territory of another nation did not furnish a just cause for war. In 1684, when George
Talbot, surveyor-general of Maryland, justified the colony’s seizure of
the Susquehanna’s hunting grounds “by right of Conquest,” he was immediately rebuked by William Penn for this reason. “I will justifie that
the Conquest of the Susquehannes was noe just Conquest,” Penn insisted, “for noe cause of warr was given by them.” Penn was hardly defending an abstract principle, for every acre not yet taken by Maryland
was one more available for Pennsylvania. But every assertion that might
makes right could be countered with the distinction between just and
unjust conquests. “No colony hath any just right to dispose of any lands
conquered from the natives,” a royal commission advised the government of Massachusetts in 1665, unless “the cause of the conquest be
just.” As a result, the claim to property rights by conquest virtually
died out among the English after the seventeenth century. The claim
“scarcely merits a serious reflection or refutation,” scoffed one writer by
the 1770s. Like the claimed right of Christians to take the land of the
heathen, the supposed right of conquest flourished only briefly, in the
period before colonial settlement had become routine enough for English thought on the subject to crystallize.18
A third theory in circulation in the early seventeenth century justifying the right of settlers to occupy Indian land was that the Indians themselves did not claim any property rights. Some of the early colonists
thought of the Indians not as humans capable of dividing their land but
rather as features of the land itself. Maine, one early settler reported,
was “but a desert Wildernesse replete onely with a kind of Savage People, and overgrowne trees.” Some claimed that the Indians were “a wild
people,” a people that “have no Lawes” to govern themselves, a people lacking any conception of property. “They hold all things, except
their Wives, in common,” declared John Lederer, of the Indians inhabiting Piedmont Virginia. Such statements were nonsense, often springing
from the imaginations of armchair travelers seeking to sell sensational
books, who were drawing not on their own observation but upon the
long tradition of depicting wild, primitive people inhabiting distant
parts of the earth. Indians, like all other peoples, recognized property
rights in food, clothing, houses, tools, and the like. The details of property systems vary greatly across cultures, and the differences between
the English system and Indian systems could be large.19 But it was clear
Native Proprietors
Y 19
to anyone with firsthand knowledge of Indians that they possessed
property.
The claim that the Indians themselves had no notion of property
rights was also made in a more limited form, as an assertion that the Indians were nomadic and did not stay long enough in any given location
to conceive of property rights in land. “This savage people ruleth over
many lands without title or property,” John Winthrop assumed in 1629,
“for they enclose no ground, neither have they any cattel to maintayne
it, but remove their dwellings as they have occasion.”20 In 1632, when
the Dutch government complained of English interference with Dutch
settlers in Manhattan, which the Dutch claimed by virtue of the famous
purchase a few years before, the English government disputed the
Dutch claim on the ground that the Indians were not “possessores bonae
fidei of those countries, so as to be able to dispose of them either by sale
or donation, their residences being unsettled and uncertain, and only
being in common.”21 If the Indians were constantly in motion, the argument was, they could not claim an attachment to any particular area of
land sufficient to give rise to property rights.
But assertions like these were quickly contradicted by experience.
The early European explorers and settlers of North America all reported
that the Indians were agriculturalists, not nomads. Verrazano found plots
“carefully cultivated” in Newport harbor in 1524. Thomas Hariot left
a detailed description of the Indian farming techniques he saw at
Roanoke in the 1580s. On Cape Cod in 1603, Martin Pring observed
“sowne Tobacco, Pompions, Cowcumbers and such like.” And of course
even schoolchildren know how the Indians saved the earliest English
colonists at Jamestown and Plymouth from starvation by bringing them
corn and teaching them how to plant. Up and down the continent, the
Indians were farmers.22 Theories of property that required nonfarming
Indians could not survive long in the face of so many facts to the contrary.
Nor was it long before colonists’ accounts confirmed that the Indians
in fact did allocate property rights in land. “Each household knoweth
their owne lands & gardens,” John Smith reported of the Indians near
Jamestown. “They all know their severall landes, and habitations, and
limits, to fish, fowle, or hunt in.” The Virginia minister Alexander
Whitaker affirmed that the Indians “observe the limits of their owne
possessions, and incroach not upon their neighbours dwellings.” From
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How the Indians Lost Their Land
Plymouth, Edward Winslow reported that every tribe knew its territory,
and within that zone, when individuals wished to plant, the sachem
“giveth them as much as they can use, and sets them their bounds.”
In Pennsylvania, William Penn found the Indians “exact Observers of
Property.” John Lawson noticed that the Indians in North Carolina
“have no Fence to part one anothers Lots in their Corn-Fields; but every Man knows his own, and it scarce ever happens, that they rob one
another of so much as an Ear of Corn.”23 The English found a preexisting system of property rights everywhere they went. It was different in
one important respect from the English system. When the soil in one
area became depleted, the village would move to a new area, and the
village chiefs would have to allot new fields to individuals and families.
The English lacked sufficient land to be as mobile. But if the Indian
property system was not exactly like the English system, it clearly was a
property system. The fact that villages did move from time to time
would prove to be important to the question of which Indian property
rights would be recognized by the English, but after the early seventeenth century it was not used as an excuse to deny property rights to
Indians completely. Everyone acknowledged that the Indians had property too.
Acknowledged and Right Owners
The early writers seeking to justify the acquisition of land in North
America often resorted to lawyer-like lists, setting out arguments in the
alternative. When the Virginia Company finally decided to go public
with a statement of why “it is not unlawfull, that wee possesse part
of their land,” the Company combined variants of the argument from
Christianity and the right of conquest. Settlement in Virginia was legal,
the Company affirmed,
Partlie, because there is no other, moderate, and mixt course, to bring
them to conversion, but by dailie conversation, where they may see the
life, and learne the language each of other.
Partlie, because there is no trust to the fidelitie of human beasts, except
a man will make a league, with Lions, Beares, and Crocodiles.
Partlie, because there is roome sufficient in the land . . . for them, and
us: the extent of an hundred miles, being scarce peopled with 2000 inhabitants.
Partlie, because they have violated the lawe of nations, and used our
Native Proprietors
Y 21
Ambassadors as Ammon did the servants of David: If in him it were a just
cause to warre against the Ammonites, it is lawfull, in us, to secure our
selves, against the infidels.
But these were all subsidiary arguments, the Company admitted. The
main reason the English could settle on Indian land had nothing to do
with Christianity or conquest. In fact, these arguments did not make the
slightest bit of difference.
But chieflie because Paspehay, one of their Kings, sold unto us for copper,
land to inherit and inhabite.24
For all the Company’s theorizing about its rights to take the land, in the
end the Company purchased it from the Indians.
The other lists drawn up by seventeenth-century defenders of settlers’ property rights were internally inconsistent in the same way. They
began with claims that did not depend on the consent of the Indians,
but by the end they relied on a purchase or a gift from the Indians. The
most detailed justification of the colony at Plymouth was published
shortly after the colony was founded, written by Robert Cushman, who
had three distinct answers to the question he knew others would pose:
“what right have I to go live in the heathens’ country?” The first was
Christianity. Englishmen ought to convert the Indians, but conversion
was impossible “unless we go to them or they come to us; to us they cannot come, our land is full; to them we may go, their land is empty.” The
task of Christianizing the Indians thus required settling on their land.
Cushman’s discussion of relative population densities brought him to
his second reason the English could occupy North America: “their land
is spacious and void.” The Indians did not use all the land available to
them. “They are not industrious,” Cushman explained, “neither have
art, science, skill or faculty to use either the land or the commodities of
it, but all spoils, rots, and is marred for want of manuring, gathering, ordering, etc.” Cushman could invoke the familiar Biblical precedent for
the migration of peoples: “As the ancient patriarchs therefore removed
from straiter places into more roomy, where land lay idle and waste, and
none used it, though there dwelt inhabitants by them, . . . so is it lawful
now to take a land which none useth, and make use of it.”
But after twice justifying a simple seizure of the Indians’ land, Cushman reversed course. The English would not have to seize the land after
all, because “we have it by common consent, composition and agreement.” It turned out that the chief Massasoit had given the English the
22 Z
How the Indians Lost Their Land
land. Massasoit “hath promised and appointed us to live at peace where
we will in all his dominions, taking what place we will, and as much land
as we will.” Cushman assured readers that this fortunate transaction had
not “been accomplished by threats and blows, or shaking of sword and
sound of trumpet.” The Plymouth settlers were a small group far from
home, in no position to take land by force. Cushman admitted that “our
faculty that way is small, and our strength less.” The land was a genuine
gift from the Indians, given because Massasoit “found us just, honest,
kind and peaceable, and so loves our company.”25 Cushman’s theorizing
as to the English right of conquest, like the Virginia Company’s similar
theorizing a decade earlier, was irrelevant in practice. In Plymouth as in
Jamestown, the English settled land with the Indians’ consent.
English colonists would make such lists into the early eighteenth century. Daniel Gookin declared in 1674 that a patent from the king was
enough for an Englishman to claim property rights in North America,
but he recognized that it made no difference, because “the English
had the grant of most of the land within this jurisdiction, either by purchase or donation from the Indian sachems and sagamores, which were
actually in possession, when the English first came over.” The New
Hampshire Assembly insisted in 1707 that the Indians had no property
rights when the English first arrived because the lands “were not onely
then Vacuum Domicilium but a miserable desert,” but then immediately conceded that the land had in fact been inhabited by Indians,
“from whose Sachims, our Ancestors all along informed and assured us
the said Lands were honestly and justly purchased.”26 In these lists of
arguments the theories justifying conquest were merely prefaces to the
empirical fact that the colonists had not conquered any land at all. They
had bought it.
By the late seventeenth century, discussions of land and Indians
tended to jettison the theory and stick to the facts. The English “settled
by the Indians consent and good liking, and bought the Land of them,
that we settle on, which they conveyed to us by Deed under their
Hands and Seals,” Thomas Budd explained in 1685. Robert Morden’s
Geography Rectified (1693) described how the residents of New England
“purchased their Lands of the Sachems, which were the heads; and
the eldest of the Indian Families, the Antient Proprietors” of the land.
Nathaniel Crouch reported the same of New Jersey: “The English that
are setled here buy the Lands of the Natives, and give them real satisfaction for the same.” By 1728 Daniel Dulany was incredulous when he
Native Proprietors
Y 23
“heard it asserted, that Maryland is a Conquered Country,” an assertion
“which, by the By, is false.”27 Maryland, he implied, like the other colonies of British North America, was a purchased country.
Indian land had to be purchased, many English and American writers explained, because the Indians owned it. In Connecticut, explained
Lord Saye, one of the colony’s original patentees, settlers “purchased
the land from the natives,” because the Indians were “the acknowledged and right owners thereof.” Many, like Increase Mather and William Penn, referred to the Indians as the “Native Proprietors” or the
“Owners” of North America. The early Maine settler Christopher
Levett arrived in 1623 with the belief that the Indians owned Maine
by “a natural right of inheritance, as they are the sons of Noah.” An early
governor of New Haven declared that the Indians “were the true proprietours of the land (for we found it not a vacuum).” No matter how
weak or impoverished the Indians seemed, the Scottish writer Robert
Ferguson insisted, they nevertheless held “Title unto, and Property in
what was anciently and originally theirs,” because “the point of Right
and Property is the same in the Poor that it is in the Rich, and in the
Weak that it is in the Strong.” Even James Glen, the expansionist governor of South Carolina in the mid-eighteenth century, was adamant that
the Indians were the “Original possessors and Proprietors of the Lands
and Countries they Inhabit.”28
Some of these writers were hardly disinterested in the matter. Ferguson, for instance, was defending the right of Scottish colonists to obtain
land in present-day Panama, land already claimed by Spain. Even if
some of their motives were impure, however, they were stating a legal
proposition that had come to command most Americans’ assent. The
uncertainty of the early seventeenth century about whether the Indians
owned their land had gradually disappeared, until by the eighteenth
century Anglo-Americans had settled on an answer. The Indians owned
their land just as much as the English did. If the English wanted Indians’ land, they would have to buy it, just like they bought land owned
by other English people.
This view of Indian property rights was never unanimous. One can
find, all through the colonial period, occasional expressions to the contrary, including some by people powerful enough to put their opinions
into practice. In 1739, for example, when South Carolina required government approval of land purchases from the Indians, the measure was
intended only in part to protect the Indians from being defrauded. The
24 Z
How the Indians Lost Their Land
other problem with private land purchases, the legislature explained,
was that the Indians did not really own the land they were selling. The
land was instead owned by the Crown. Sales by the Indians “tend to the
manifest prejudice of his Majesty’s just right and title to the soil of this
Province.” But even this example shows the dominance of the view that
the Indians were property owners. If South Carolinians believed the
land was owned by the Crown rather than the Indians, the legislature
ought to have banned purchases from the Indians altogether, rather than
merely requiring the government’s license.29
Practice had crystallized long before theory. Purchasing land from the
Indians became common almost from the beginning of English settlement. In Virginia the early governor Thomas Dale bought land from the
Indians. The earliest settlers of Massachusetts carried instructions that
“if any of the savages pretend right of inheritance to all or any part of the
lands granted in our pattent, wee pray you endeavor to purchase their
tytle, that wee may avoyde the least scruple of intrusion.” Early seventeenth-century Massachusetts towns were typically founded by purchases from the Indians. In 1663 the proprietors of the new colony of
Carolina assumed that the first settlers would buy land from local Indians. The same year in New York, when the Dutch government tried to
prevent three English settlers from purchasing Indian land, the settlers
proudly declared “that wee would purchase the land as wee are Englishmen.”30 It did not take long for the recognition of Indian ownership to
become the norm.
The quick emergence of that norm can be seen most clearly by tracing land policy in a single colony, New York. England took control of
New York in 1664, and the following year the colony’s first English governor informed the Duke of York that “upon this tract of land several
new purchases are made from the Indians since my coming.” By 1669 an
anonymous New York writer could explain that while the “Tenure of
Lands is derived from his R[oyal] H[ighnes]s, who gives and graunts
lands to Planters as their freehold forever,” a grant from the Crown was
not enough to put a colonist in possession of land. It merely gave the
colonist the right to buy land from the Indians: “the Planters themselves
are purchasers from the Indyans.” New York was so free, the writer exclaimed, that “the Governour gives liberty to Planters to find out and
buy lands from the Indians where it pleaseth best the Planters.” In 1674
the Duke of York instructed the colony’s lieutenant governor that
“when opportunities shall offer themselfes (as I am informed they fre-
Native Proprietors
Y 25
quently doe) for purchaseing great tracts of land for Me from the Indians, for small sumes,” he should seize the chance to do so. Such instructions then became standard, repeated to new governors and lieutenant
governors when they took office. Colonial officials in New York thought
of themselves not as conquerors but as bargain shoppers, waiting for the
Indians to put their land on sale.31
By 1698, when the Earl of Bellomont, New York’s new governor,
asked the colony’s attorney general, James Graham, about “the Methods
of making grants of Land since the settlement of the Government under
the Crown of England,” Graham had no trouble providing an answer.
The land first had to be purchased from the Indians. “If the lands were
not purchased of the Indians then a petition was made to the Governor
and Councill for a License to purchase the same. Then there was an order for a purchase in the presence of the Magistrates of the County
where the land lay, and in such a time, and if that method not followed
then the License and purchase void, then if regularly purchased should
usually preferr a petition to the Governor and Councill for a Grant of the
same.” The colonial government could grant licenses to purchase, and it
could ratify purchases already made, but it could not dispense with the
requirement of a purchase from the Indians. Prospective purchasers
seeking licenses were careful to specify that the land they wished to buy
was “yet unpurchased of the Natives.” By the middle of the eighteenth
century, New York required that lands purchased from Indians be first
surveyed, by a government surveyor, in the company of Indians from
the selling nation, to avoid subsequent disputes.32 Land purchasing had
become a routine matter.
Purchasing quickly became the norm in the other colonies as well. In
1687 the Proprietors of East New Jersey bitterly complained that having
already purchased their patent from the Crown, they were “notwithstanding forced to buy every Acre over again at a considerable rate from
the Indians, who daily raise the price of land as they understand our
want of it.” William Penn reported in 1685 that “I have made seven Purchases” of land from the Indians in Pennsylvania, “and in Pay and Presents they have received at least twelve hundred pounds of me.” James
Glen, the governor of South Carolina between 1738 and 1756, proudly
recalled how he had “made a considerable Purchase from that Indian
Nation,” the Cherokees, “of some of those hunting Grounds.” Glen
“had the Deeds of Conveyance formally executed in their own Country,
by their head Men, in the Name of the whole People, and with their
26 Z
How the Indians Lost Their Land
universal Approbation and good Will.” Throughout the south, the
Creek leader Alexander McGillivray declared at the end of the colonial
period, “no title has ever been or pretended to be made by his Britannic
Majesty to our lands except what was obtained by free Gift or by purchase for good and valuable Considerations.” William Johnson, superintendent of Indian affairs through the 1750s and 1760s, summarized matters the same way. It was a “well judg’d Policy,” he concluded, that the
English government “have always made an Indian Purchase the Basis or
Foundation of all Grants.”33 From Maine to Georgia, the ordinary way to
acquire Indian land was to buy it.
There were many wars between colonists and Indians, of course, and
when the English won they took some of their adversaries’ land. The
English did not conceive of any of these wars, however, as wars of conquest, undertaken for the purpose of obtaining land. Rightly or wrongly,
they perceived each of the wars as provoked by the Indians, and the
land taken as just compensation for their trouble. The amount of land
acquired by war was in any event a small percentage of the colonies’ surface area. Much more land was obtained by purchase than by conquest.
Any assessment of the relative amounts of land acquired by different
methods requires qualification. It would be an enormous and perhaps
impossible task to count the number of acres in North America that the
English purchased, conquered, or simply occupied without either permission or violent contest. The purchase of land resulted in the creation
of a document, but the occupation of land by other means did not, so
even a complete assessment of the documentary record would be likely
to overestimate the percentage of land purchased. But there are three
indications suggesting that the purchase of land was, at the very least,
extremely common.
The first is the sheer number of surviving deeds by which Indians
sold their land to English colonists. In every colony, many of the earliest
property transactions for which there is still a record involve Indian sellers and English buyers.34 Some of the surviving Indian deeds, particularly in the later colonial period, cover enormous areas. There are so
many surviving Indian deeds, ranging from sales of small parcels to individuals right up to sales of huge territories to colonial governments, that
the English purchase of Indian lands must have been a common event.
“Every Man that pretended to Propriety, had gotten his Right by Purchase from the Natives,” a group of New Jersey colonists recalled in
Native Proprietors
Y 27
1747; “without which purchase, the People there would hiss at the person pretending Property.”35
A second suggestion that purchase was the ordinary method of acquiring Indian land is the ubiquity of colonial statutes regulating the purchasing process. These laws required private purchasers to obtain permission from the colonial government before buying Indian land. The
first was enacted in Massachusetts in 1634. Most of the other colonies
followed suit.36 There were several reasons to require land purchasers to
obtain the government’s consent. The government might be able to ascertain whether the land in question had already been purchased by
someone else, and thereby prevent disputes from arising between competing English purchasers. The government might promote the colony’s
security, by seeing that far-flung land was not acquired before land
closer in was settled, or by preventing the acquisition of land in a location that might provoke opposition from another tribe. The government
might also police fraud against the Indians, by denying permission to
unscrupulous frontier characters or to others whose proposed transactions seemed dubious for one reason or another (although this motive
must not have been uppermost in a few of the colonies, where the penalty for an unauthorized purchase was that the land would pass to the colonial government rather than being returned to the sellers). But these
laws were not intended to discourage purchasing, or to promote land acquisition by some other method. To the contrary, their purpose was to
facilitate purchasing, like the laws regulating any other market. The fact
that every colony had such laws again suggests that the norm was to purchase land from the Indians.
A third indication that purchasing was the norm, and that the English
recognized Indian property rights in land, is that colonial officials often
enforced Indian property rights against the competing claims of colonists. New England court records are full of property disputes, many involving Indian property owners, and the Indians were treated the same
as English litigants. When colonists or their livestock trespassed on Indian land, for example, Indian plaintiffs prevailed in court. In 1710,
when a group of Mohawks refused to permit New York officials to
survey land the Mohawks claimed not to have sold, Governor Robert
Hunter returned to Albany, checked the property records, discovered
the Mohawks were right, and called off the survey. In 1733, when the
Mohawks persuaded Governor William Cosby that a purported sale of
28 Z
How the Indians Lost Their Land
their land had been fraudulently procured, Cosby invalidated the transaction.37 Colonial officials would hardly have protected Indian property
rights if they believed the Indians had none. To be sure, they sometimes did less than the law required. The officials charged with enforcing British land policy were often big land speculators themselves, because many drew little or no salary and needed a source of outside
income, and the resulting conflict of interest could lead officials to ignore Indian property rights when they became inconvenient. But if
Indian property rights were not always enforced, they were enforced
enough to suggest that colonial officials recognized that purchase was
the normal and proper way of obtaining them.
It bears emphasizing that Indian property rights in land in the colonial
period were full property rights, not the limited “right of occupancy”
discussed by John Marshall in Johnson v. M’Intosh and by later writers.
Colonial writers used the same words to denote Indian and English
property holdings—the Indians, like the English, were described as
“owners” or “proprietors” of their land. The Indians, like the English,
had the legal right to refuse an offer to buy their land. Transactions between Indian sellers and English buyers were, in legal contemplation,
identical to transactions between English sellers and English buyers.
Land was “bought from the natives,” related one mid-eighteenthcentury pamphleteer, “in the same manner as is practised among ourselves.” The deeds by which Indians sold land were typically worded
the same as the deeds by which English colonists sold land. They conveyed the same kind of ownership enjoyed by the English. “I make
no doubt,” affirmed the minister Christopher Toppan, that the Indians
“have as full, and firm a Right, to their Lands as any white men have to
theirs.”38
Toppan was wrong in one respect. For most of the colonial period, the
Indians could legally sell land only to the government or to a purchaser
who had been (or would later be) licensed by the government. This
was one limit on Indian sellers that did not apply to English sellers.
Throughout the colonial period, however, this restriction was not a serious impediment to Indian land sales. Colonial governments wanted to
encourage settlers to buy Indian land. The requirement of a license most
likely reduced prices, as we will see in the next chapter, but it does not
appear to have prevented many sales. The Indians were not shy about
making their land-related grievances known, but there is little or no record of thwarted sellers objecting to the license requirement.
Native Proprietors
Y 29
Because licenses to buy Indian land were so easy to obtain, the license requirement did not cause the English to think of Indian land title as a lesser form of ownership than English title. All landowners, then
as now, faced a variety of restrictions on what they could do with their
land. An English owner of land might be denied permission to build a
mill or a tannery on it, but his neighbors and their lawyers still considered him the owner of his property. The same was true of the Indians:
their ability to choose among competing purchase offers might be limited, but they were still proprietors of their land. One can find no claims
in the colonial period of an Indian “right of occupancy” midway between full ownership and no rights at all. Some, especially in the early
seventeenth century when the issue was still unsettled, asserted that
the Indians had no property rights. From the late seventeenth century
on, most believed that the Indians were full owners of their land. But no
one was in the middle, so far as one can discern today. The right of occupancy described in Johnson v. M’Intosh did not yet exist.
Uncultivated Country
To acknowledge the Indians as property owners, however, only raised
another question—whether the Indians owned all of North America, or
some lesser amount.
North America was so big and the Indian population so small, many of
the early English writers on colonization reasoned, that there would be
room enough for everyone. “The Land affords void ground to receive
more people than this State can spare,” exclaimed the anonymous author of The Planters Plea in 1630. “The Indians,” agreed Francis Higginson in the same year, “are not able to make use of the one fourth part of
the Land.” The apparent sparseness of the Indian population was in
part a product of colonization itself, as Europeans unwittingly brought
along microorganisms to which Indians had never been exposed, producing diseases that killed Indians in very large numbers. Much of the
“void ground,” remarked the author of The Planters Plea, “comes to
passe by the desolation hapning through a three yeeres Plague” in the
1610s, “which swept away most of the Inhabitants all along the Sea
coast, and in some places utterly consumed man, woman & childe, so
that there is no person left to lay claime to the soyle which they possessed.” Massachusett and Patuxet societies numbering around twentyfive thousand in 1600 had been reduced to fewer than three hundred
30 Z
How the Indians Lost Their Land
survivors by 1700. The southern Indian population, approximately two
hundred thousand in 1685, had been reduced to a quarter of that by
1760. The English were as baffled as the Indians as to why these repeated epidemics killed only Indians. Many, like Daniel Denton, saw “a
Divine Hand” making way for English settlement, “by removing or cutting off the Indians.”39 But even without the devastation of disease,
the English would have found in most of North America a population
density much lower than that to which they were accustomed. There
seemed to be plenty of space.
England, meanwhile, seemed to be overflowing with people. The
population density of England was low by modern standards, but it was
the highest contemporaries had ever known. England seemed dangerously full of the poor and the criminal. There was simply not enough
land. North America, by contrast, seemed a “howling desart Land,” full
of “paths untrod by man and beast,” a place “where lands lye wast and
free.”40 There was no doubt some prejudice in comments like these, a
willingness to overlook the Indians who walked the paths supposedly
untrod by man, but there was more to it than just contempt for the Indians. Emptiness can be a relative concept.
If the Indians had more land than they could use, and England had
extra people, one could easily construct a legal argument justifying English settlers in occupying surplus North American land. The lawyer
Thomas More anticipated the argument in the early sixteenth century.
When his Utopians found their island too crowded, they sent out colonists to settle on the nearby mainland, “wherever the natives have
plenty of unoccupied and uncultivated land.” The Utopians forced out
natives who resisted, More explained, because “the Utopians say it’s
perfectly justifiable to make war on people who leave their land idle and
waste yet forbid the use and possession of it to others who, by the law of
nature, ought to be supported from it.”41 More wrote nearly a century
before the argument could be put to practical use in North America, but
when the argument became useful it was quickly sharpened. Lawyers in
England and throughout Europe agreed that settlers had a legal right to
occupy uninhabited land.42 But what about land that was inhabited very
sparsely? Was there no limit to the quantity of land a single person or a
small group might claim?
The question was quite relevant to Walter Raleigh’s plans for colonization when Raleigh raised it in the late sixteenth century. “Should one
family, or one thousand, hold possession of all the southern undiscov-
Native Proprietors
Y 31
ered continent, because they had seated themselves in Nova Guiana, or
about the straits of Magellan?” asked Raleigh. “Why might not then the
like be done in Afric, in Europe, and in Asia?” The idea’s absurdity implied that a people could not legitimately claim property rights in too
big an area. The Indians, Raleigh reasoned, were not the owners of all of
North America. Part of the continent was open for English settlement.
“If the inhabitants doe not in some measure fill the Land,” preached
John Donne to the Virginia Company, the inhabitants had no right to exclude the English, “for as a man does not become proprietary of the Sea,
because he hath two or three Boats, fishing in it, so neither does a man
become Lord of a maine Continent, because he hath two or three Cottages in the Skirts thereof.”43
Many concluded that the only place to draw the line was at actual occupation: The Indians were the owners of the land upon which they
were physically present, but the rest was open for settlement. “If any
Countrey be not possessed by other men,” Samuel Purchas argued in
1625, “every man by Law of Nature and Humanitie hath right of Plantation.” And the same principle applied to a land that was partially possessed, as he understood North America to be. “If a country be inhabited in parts thereof, other parts remaining unpeopled, the same reason
giveth liberty to other men which want convenient habitation to seat
themselves, where (without wrong to others) they may provide for
themselves.” The Massachusetts minister John Cotton affirmed that
“God makes room for a People” when “he makes a Countrey, though
not altogether void of Inhabitants, yet void in that place where they reside. Where there is a vacant place, there is liberty for the Son of Adam
or Noah to come and inhabit, though they neither buy it, nor ask their
leaves.” Massachusetts, he hardly needed to say, included such vacant
places. Even William Penn, who was scrupulous about purchasing Indian land, declared that the Indians lacked any claim to “Waste, or uncultivated Country.”44 For a great many colonists, the association of
property with physical occupation was the only conceivable way of striking a balance somewhere between two unacceptable polar positions—
that the Indians possessed no property rights in their land, or that a relatively small number of Indians could possess all of North America.
The earliest settlements in some of the colonies appear to have proceeded on this principle. In Virginia, contemporary accounts suggest
that the English simply fenced in land that did not seem to be in use.
George Percy recalled that although “the Savages murmured at our
32 Z
How the Indians Lost Their Land
planting in the Countrie,” the initial English occupation did not bother
Powhatan, who remarked “very wisely of a Savage, Why should you bee
offended with them as long as they hurt you not, nor take any thing
away by force, they take but a little waste ground, which doth you nor
any of us any good.” For some time thereafter colonial officials continued making grants of land they perceived to be “empty.” An account of
the first settlement in Georgia likewise begins with the construction of
a fence in a place that seemed to be uninhabited, without any mention
of the possibility that the Indians might own the land beneath.45 In parts
of New England, the Indians were so decimated by disease that colonists could get right to work on land the previous farmers of which were
all dead. The English could, as John Winthrop did, concede to the
Indians “a natural right to so much land as they had or could improve,”
but leave the rest of the continent “open to any that could and would
improve it.”46
The language used by the seventeenth-century writers bears close
examination, because one can detect in it an ambiguity in thought that
would poison relations between settlers and Indians for a long time to
come. Penn equated “waste” with “uncultivated country.” Winthrop
rested property ownership not on physical presence but on the capacity
to “improve” land. It was easy for the En…

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