How The Indians Lost Their Land: Law And Power On The Frontier

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- 2Z 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? W