How the Indians Lost their Land

Banner, Stuart. 2005. How the Indians Lost their Land: Law and Power on the Frontier. Harvard: Harvard University Press.

Stuart Banner’s main thesis is that the loss of U.S. Indian land cannot be reduced to a story of violent dispossession. He also discounts versions that put too much emphasis on trickery and the sort of cultural-lost-in-translation thesis. He’s careful to note that coercion, violence, trickery, and fraud are all integral parts of the story; but what’s been overlooked, says Banner, is how Indians—particularly in the 17^th and 18^th Centuries—actually sold their lands and how the English and later American regimes actually recognized their property rights (if not always their sovereignty). Banner wants to present a more complicated picture of Indian dispossession so that neither Indians nor whites are presented as monolithic blocs and due diligence is given to the wideness of the fluctuating spectrum between coercion and consent, involuntary and voluntary, conquest and contract.

Trying to walk this line, Banner writes: “In the end, the story of 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” (6)

The relative weakness of early colonists compared to tribes meant that rather than align with colonial charters that claimed Indian land was for the taking, they ended up buying land from the native population. As the scales of power tipped in the other direction, colonists became land-grabbers and it was the English crown that began trying to regulate the rush, requiring all land to be purchased by colonist and regulated by colonial administrators. Banner explains, “A combination of ideological and material circumstances impelled the English to recognize the Indians as the ‘Native Proprietors’ of North America, as owners from whom land would have to be purchased” (48). The ideological reasons included the similarity of Indian farming with pre-enclosure England as well as liberal theories of private property; material considerations included trade, amicable relations, and politico-diplomatic alliances (against other tribes and other colonial powers).

But the land rush continued and began creating greater conflicts with the tribes being pushed further west. The Proclamation of 1763 called for an end to private sales, which were chalk full of deceit, drunken deals, and other fraudulent activity. The Proclamation made the purchasing of Indian land an exclusive right of the government. The side-effect of this policy, which was aimed at keeping the peace with the tribes, was that it undermined the property rights of the Indians themselves who were effectively barred from alienating their own property. It created the perception that Indians had less than full property rights. “Before 1763, many colonists believed that Indian landownership was identical to Anglo-American landownership. After 1763 by contrast, Indian landownership was easier to perceive as a kind of second-class property right, something less complete than full ownership enjoyed by Anglo-Americans” (109).

The Revolution also threw Indian property rights into a tailspin. First, most tribes had allied with the losing side, a defeated power, and the Revolution could thus be cast as a war of conquest giving the new country rights to all its land. But that view was not hegemonic nor lasting, and the fledgling government quickly reverted to the colonial-type policy of allowing only the federal government to purchase Indian land.

The federal system and its accordant powers afforded to states produced what Banner calls perhaps “the most important blow to Indian landownership.” This was the practice in which state governments began offering grants of land to which the federal government had not yet purchased. The federal government ended up ratifying these de facto settlements almost by default. “Under political pressure to grant western land to settlers, and unable to purchase that land from Indians, the states continued granting it to settlers regardless of whether the Indians were still on it. As this practice grew commonplace, lawyers increasingly came to think of the Indians as tenants on the land rather than the owners of it” (190). A series of court decisions helped ratify this view of Indian tenants, and the notion of Indians as property owners began to recede from memory. An ideological component of this shift was the notion that Indian inhabitants of land were not proper farmers (an outright lie), which undermined their land claim according to liberal property theory, making them occupants but not owners.

All these developments are what set the conditions and possibilities for subsequent Indian removal, reservations, and allotment (the Dawes Act). Banner’s point in tracing these policies in the second-half of the book revolves much less about land per se and more about arguments for and against each respective policy (removal, reservation, allotment). He shows how advocates for and against policies formed strange bedfellows with progress-professing humanitarians siding with land-hungry speculators; Indian tribes themselves were often split on such policies with some leaders advocating for such policies as defensive move, while others held out as long as they could until threatened by starvation. Here’s where Banner’s view of a spectrum from consent and coercion stands on shakier ground and his own arguments seem to show that even when Indians had a “choice” it was always a coerced one.