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A Brief History of Land Transfers Between American Indians and the United States Government

Land ownership in the United States has been the story of land moving from Indian to White control. This observation, however, conceals a complex web of assumptions, decisions, and unilateral actions that shaped how the story took place, and the implications of the past for the future. Understanding how the land changed hands is to learn much about questions of equality, morality, and legality.

When Europeans first arrived on the shores of North America they claimed the land they “discovered.” Besides the obvious problem of potentially overlapping claims by various European nations, Europeans quickly realized that in practice the land was already claimed, by the people living there. People already living in North America forced European settlers to think about and resolve moral, legal, and practical problems regarding land ownership. Indians, meeting Europeans who wanted land, had a similar issues to resolve. At first, neither side truly understood the other. Eventually both sides had to decide what to do now that they had met.

The story of how these issues were resolved is often told as a tale of opposites. Indians had one view. Whites had another. The truth is more subtle. Both communities were uncertain over how to proceed. Both could find members arguing for extreme positions, or for some position somewhere in between the far poles of possibilities. If in the end majorities coalesced around certain positions and practices, we should be careful not to assume that all whites thought and acted one way, while all Indians thought and acted another. Legality and morality were played out in subtle shades of grey.

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Land Transactions before the American Revolution

For the Indians, there never was any question that the land was theirs. The only question was whether it would be wise to part with some of it to obtain useful or beautiful things these new people from across the ocean offered. It is likely many Native Americans did want to enter into a trade relationship with the Europeans. The Europeans brought several items they deemed of value. Iron artifacts in general and firearms in particular worked better than the alternatives used in tribal society. Glass products proved an adornment Native Americans found attractive. As long as the European population was small and the amount of land in question was minor, trading land for otherwise unobtainable goods was a reasonable decision.

Although Natives never doubted they owned the land, the English were not so sure. In British legal theory the settlers had a “right” to settle found in the charter granted to the colony by the
King. The prevailing British legal view eventually became that Indians owned the land and had the right to be compensated if they surrendered control over it. This was just as any British land owner could expect when property changed hands. British settlers also came to the pragmatic conclusion that buying land was simpler and cheaper than trying to take it, an action that almost always led to war.

The British did, however, place an important limitation on Indian land ownership. Unlike Europeans, who could sell their land to whomever they chose, Indians could sell land only to the government. The implications of this legal principle, as well as the need to develop a practical means to enforce it, was regularly evaded by colonial governments. Colonial governments quickly and freely granted licenses to buy land to private individuals.

This legal device created a vibrant land market in the British colonies. Individual Indians sold land either directly to a colonial government or to individual settlers who, at least theoretically, had a license to make such a purchase. The land market, however, was rife with fraud, usually, but not always perpetrated by the settlers on Indians. The most blatant problem was squatters who simply occupied Indian land. Ignoring the law, settlers simply started clearing the forest.

Other, more subtle swindles, invoked the form of the law, but rigged the process. The large number of stories, told by both sides, regarding the liberal use of free liquor by whites to promote ill-advised sales of land by Indians suggests that the practice was common. If liquor was not used, another frequent fraud was to exploit ambiguity over who had authority to sign a contract. Because land sales as Europeans implemented them had not taken place in tribal communities, where land was usually held in common and assigned to individuals for their use for so long as they could take advantage of the area, there was no clear rule for who could, or could not, sign a land contract. The situation could be maddening, even for a well-intentioned European trying to follow the letter of English law.

But many Europeans were not well-intentioned. People wanting land signed a deed with whomever would put their name on a piece of paper, and sometimes sweetened the deal by offering a signing bonus, money given to the Indian who put pen to paper. Colonial officials were no more able to sort out this situation than Indian tribes. Thus, most often a signature was a signature and questions about the legitimacy of the signer to actually sell the land were left unasked.

An even more subtle fraud consisted in how the land being purchased was defined. Purchasers told Native sellers that the amount of land to be sold was small, but contracts as written made the acquisitions vast. This type of swindle became so common, and led to so much difficulty that two colonies, New York and Virginia, required that prior to the private purchase of land from an Indian, the exact territory be surveyed by a government-hired surveyor, with the seller or his representative present at the time of the survey.

Colonial governments were sometimes willing to undo egregiously illegal transactions and Native Americans did take advantage of this. New England courts had frequent cases brought by Indians against settlers. The Indians were treated equally in the court with Europeans. Sometimes, a colonial governor would intervene. In 1733, the Mohawks persuaded the governor of New York to invalidate an illegal land transaction. But most of the time, government was unable or unwilling to take from settlers land obtained by means ranging from questionable to illegal.

In 1763, at the successful conclusion of a long war, Britain came to own virtually all of France’s possessions in the New World. Britain’s Imperial government in London decided it was time to reorder the business of land acquisition in its North American colonies. British colonial land practices had, among many things, led Indians to ally themselves with the French against the British. In 1757, when asked why his tribe was inclined to ally themselves with the French, Seneca chief Silver Heels answered that the British, “intended to dispossess them of all their Lands.” The Creeks in Georgia expressed the situation in another way. They began calling the English “Ecunnaunuxulgee,” which translates as “People greedily grasping the land of the Red people.” London determined that in order to obtain peace on British America’s western frontier, colonial settlement had to be brought under control.

The Royal government’s Proclamation of 1763 put in place several reforms intended to solve the land problem. The proclamation resolved Native concerns about white land acquisition by simply banning white settlement west of a border drawn by the Crown – essentially a north-south line that ran from New York to Georgia across the top of the Appalachian Mountains. East of this boundary, private sales of land between Indians and whites were banned. “Great Frauds and Abuses have been committed in the purchasing Lands of the Indians.” admitted the Proclamation. Thus, all future purchases from Indians were to be made “only for Us, in our Name.” To try to avoid the problem of unauthorized or inappropriate individuals attempting to sell Indian land, all purchases by the government had to be made “at some publick Meeting or Assembly.” The clear hope was that the sunlight of public transactions would reveal any irregularities in the proposed agreement or who was signing it.

From the Native perspective, the Proclamation was not necessarily a victory. Although it clearly was drafted in a way meant to control land acquisition by Europeans, it did so by implicitly denying Indians the full use of their property. Indians were acknowledged as property owners, but the long-ignored legal principle that only the government could buy Indian land was not to be enforced. The idea that the colonial government would regulate land sales between settlers in the same way, telling property owners that they could only sell their land to the state, which would in turn, offer it for sale, would have been met with incredulity and howls of protest.

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The new United States and Indian Land, 1783-1789: A Short-lived Right of Conquest

A peace treaty signed in Paris ended the American Revolution. Because England had given up the fight with her American colonies, British preferences and laws no longer had any bearing on what might, or might not, occur on the western frontier. Britain surrendered. The Indians, who largely supported Britain, did not.

The victorious Americans were deaf to this subtle but critical distinction. In 1783, General Philip Schuyler was sent to tell the Six Nations what the end of the Colonials war with Britain met for them. Schuyler did not mince words. “As we are conquerors, we claim the lands and property of all the white people as well as the Indians who have left and fought against us.” In the immediate years after the War’s end, the Continental Congress stopped buying Indian land. Although treaties were signed, those treaties confiscated Indian land.

After a few years, the Americans realized that if the United States wished to treat Indian tribes as conquered, the United States Government would have to go through the trouble and expense of actually conquering them. In 1786, a committee of the Continental Congress warned that the “Shawanese, Puteotamies, Chippewas, Tawas, and Twightees” were gathering for war, and seeking other tribes to join them in the coming battles. Henry Knox, then commander of the Continental Army, calculated it would take an army of 2,500 to 3,000 men fighting for two years to overcome the Native army, at a cost of two million dollars. Knox estimated that for a mere $20,000 the Government could buy the land, and recommended that the Congress do so.

Knox, who would later become the United States’ first Secretary of War, repeatedly urged the Government to buy land from the Indians. Knox’s argument was persuasive. In 1787, Congress declared that, in the newly formed Northwest Territory, “The utmost good faith shall always be observed toward the Indians; their lands and properties shall never be taken away from them without their consent.” In 1788, Congress made good on this pledge by appropriating $6,000 to begin buying land from Indians in the Northwest Territory.

The American Revolutionaries who declared war on Britain continued the British legal tradition that the Indians owned the land. This came about not out of a moral concern toward Indians but because of the political rhetoric used to legitimize the Revolution itself. Loyalists claimed one reason the revolution was illegal, was that the colonists had been given land by a royal charter issued by the Crown. The Revolutionaries were “stealing” land from the King.
John Adams scoffed at this notion. Royal charters, Adams reasoned, “could give no title to the England King, by common law, or by the law of nature, to the lands, tenements and hereditaments of the native Indians here.” Adams went on to claim, “Our ancestors were sensible of this, and therefore, honestly purchased their lands of the natives.” Benjamin Franklin shared this opinion. As he wrote in a marginal note on a pro-British tract, “The British had no original Property in the Country of America. It was purchas’d by the first Colonists of the Natives, the only Owners.” Although Adams and Franklin’s assertion about how land was obtained clearly engaged in a good deal of wishful thinking about the practice of land acquisition, their legal position left no doubt as to who first owned North America’s land.

When the U.S. Constitution was debated, one argument raised in its favor was the question of Indian land. As John Jay wrote in the Federalist Number 3, “there are several instances of Indian hostilities having been provoked by the improper conduct of individual States … unable or unwilling to restrain or punish offenses” by their citizens. Jay happily assumed this problem would be rectified by the proposed constitution and a Federal Government willing to punish offenses.

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1789 –1820 Redefined Ownership

When the first Congress of the new United States assembled in Philadelphia, it had exclusive power to set Indian policy. Article 1, Section 8 of the new Constitution stated, “Congress shall have Power . . . To regulate Commerce . . . with the Indian Tribes.” Secretary of War John Knox, Secretary of the Treasury Alexander Hamilton, and President Washington all agreed Indian land was owned by the Indians and that the policy of the new government should be to purchase land from Tribal Governments. Few were surprised when Congress, in 1790, passed a law proclaiming that “no sale of lands made by any Indians, or any nation of tribe of Indians” would be valid unless “made and duly executed at some public treaty, held under the authority of the United States.” The government of the United States adopted the Indian land policy in place since 1763, as well as the legal position that the land belonged to the Indians.

If some in the Federal Government thought that this reversal of the Continental Congress’ “conquest” policy would please Indians, they quickly discovered that it did not. Not only did Native American leaders give little importance to the new proclamation that they owned the land, since to them it was simply acknowledging the obvious, they criticized the illogical position that the land was theirs but they could only sell their land to the United States Government: “We declare to you, that we consider ourselves free to make any bargain or cession of lands, whenever and to whomsoever we please.”

Indians, who had considerable experience with white settlers and their land acquisition practices, actually put little faith in the words coming from the new government’s representatives. Thomas Pickering, sent in the 1790s to negotiate with the Six Nations, reported to George Washington that, “Indians have so often been deceived by White people, that White Man is among them, but another name for Liar.” Pickering noted that he personally, as the representative of the President of the United States, was referred to by Natives as “the Town Destroyer.”

Native cynicism regarding the new government’s intentions was well supported by past history. Past treaties that had transferred land ownership employed a wide range of unethical or illegal tactics. Clauses, written in English but never mentioned to the Native signers, might appear in the “official” document. Secret articles were inserted into treaties essentially paying bribes to key signatories. And should the Government behave with honor, private citizens stepped into the breach. A treaty with the Seneca regarding western New York was helped along by the liberal dispensation of money and alcohol provided by the Holland Land Company.

Illegitimate “chiefs” also signed treaties. The Creek complained bitterly in 1825 that the Treaty of Indian Springs, which sold virtually all of the Tribe’s remaining land, had been signed by individuals not authorized to make such a sale. The Federal Government’s negotiators were well aware of this. The Tribe’s senior leaders had refused to sell and left the negotiations. After the senior leadership had left, the negotiators turned to the few remaining minor chiefs and persuaded them to sign the treaty.

The Native leaders also knew that, in practice if not in law, Indians often sold land to settlers rather than the Government. James Emlen, traveling in 1794 through New York, reported on an estate shown him by a man who proudly announced it had been bought directly from Native Americans. Charles Jouett, traveling in Detroit in 1804, similarly reported that local residents relied on private purchases from Indians to obtain land. In 1810, a group of settlers petitioned the governor of New York to recognize their ownership of the land, based on “long-term leases” from Native Americans.

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Ownership to Occupancy

If the practice of the United States in negotiating treaties was not substantially different than what had occurred in colonial times, a shift in how Americans thought about Native land ownership did occur. In a few short years, changes in legal thought led the Supreme Court to redefine U.S. law regarding Native rights to the land.

This came about because of a more or less willful misinterpretation of history. The colonial literature was rich with references to Native famers and farming. Christian missionaries regularly reported their successes in convincing Indians who had not previously grown crops to take up the plow. “Civilized” tribes, particularly in Georgia, were well known for their agricultural output. Yet early nineteenth century legal theory was formed in the belief that Indians had not and did not farm.

Partly, this was the result of reports being received from the Northwest Territory and the Great Plains. Short agricultural seasons in the Northwest Territory and lack of water west of the Mississippi River made farming in the style performed “back East” difficult. Because of this, many tribes were nomadic or semi-nomadic. But these new reports should not have obliterated centuries of colonial knowledge as well as contemporary examples of Native American agriculture.

John Quincy Adams, just beginning his public career in 1802, accepted that Indians might own the land they farmed, but as for the rest, his conclusion about Indian land ownership was much different than that his father had held in 1776. From John Quincy Adams’ viewpoint, Indians owned, “Their cultivated fields; their constructed habitations; a space of ample sufficiency for their subsistence, and whatever they had annexed to themselves by personal labor.” However, Adams argued, that made up a very small portion of the continent.

As for the rest, “what is the right of a huntsman to the forest of a thousand miles over which he has accidentally ranged in quest of prey?” The answer John Quincy Adams offered to his own question was that the huntsman had no right to it. He did not own such land: “Shall the liberal bounties of Providence to the race of man be monopolized by one of ten thousand for whom they were created? Shall the exuberant bosom of the common mother, amply adequate to the nourishment of millions, be claimed exclusively by a few hundreds of her offspring?” Furthermore, Adams asked, “Shall the lordly savage not only disdain the virtues and enjoyments of civilization himself, but shall he control the civilization of a world?” John Quincy Adams conclude that such “uncultivated” land should be available for white settlers.

American law never officially recognized that uncultivated land could be taken from its first occupants, simply because it was “vacant.” But the more Indians were perceived as nomads the more tenuous was their legal standing in U.S. courts regarding the land. As a result, Chief Justice John Marshall of the United States Supreme Court wrote a series of opinions that transformed U.S law so that Native Americans land rights were reinterpreted from those of ownership to those of a mere tenant-like arrangement.
Marshall’s first foray on the subject occurred in Fletcher v. Peck, a case that had originated in 1807. The case did not directly involve Indians. Rather, it had to do with Americans, arguing over who held title to land that state of Georgia had granted to one group in 1795 and another in 1796. As part of the legal proceedings, a question was raised whether the state legislature could give the land to anyone, since, inconveniently, the land had never been ceded by treaty to the United States.

Marshall dismissed the Indian ownership claim in a few, swift sentences. The land, he stated, might belong to Georgia or the United States, this was something a court would have to determine. But, Marshall declared, it certainly was not owned by Tribal governments. Tribal governments had a less comprehensive “Indian title” to the land. Marshall’s short sentences did not well define what “Indian title” was, but clearly it was less than the full ownership a white settler would legally enjoy.

Marshall’s assertions regarding “Indian title” did not go unquestioned. In a rare dissent, Justice William Johnson, declared “Indian title” a legal absurdity. Either the Natives owned the land or they did not own it. Johnson could not comprehend how the law could be understood to have some middle position. Reflecting the older legal understanding of the matter, Johnson’s minority opinion asserted that Indians owned the land, in the simplest sense of that idea and with all the related rights it implied.

Others echoed Johnson’s dissent. The New York Supreme Court went out of its way to disagree with Marshall’s ruling, writing that it was, “a fact too notorious to admit of discussion or to require proof, that the Oneida Indians still reside … upon lands which they have never alienated, but hold and enjoy as the original proprietors of the soil.” Attorney General William Wirt, when asked about the matter in 1821, wrote, “So long as a tribe exists and remains in possession of its lands, its title and possession are sovereign and exclusive.” Wirt would go on to write Tribal governments, “do not hold [title] under the States, nor under the United States; their title is original.” Wirt, however, was among the last federal officials to take this position.

Marshall returned to the subject of Indian land ownership in 1823, writing the majority opinion in the case of Johnson v. M’Intosh. This time, Marshall devoted considerable space in his opinion to the question of Tribal government’s ownership of the land.

He again ruled that American Indians had some right to the land, but that this right was something less than full legal ownership. Marshall wrote that the right of discovery gave European nations “ultimate dominion” over North America. Although Natives had a “legal as well as a just claim” to retain possession of the land, they did not own it. Rather, land grants from European governments conveyed ownership. These grants, Marshall claimed, “have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.” Marshall’s assertion that, “These grants have been understood by all to convey a title to the grantees,” is wrong. But the statement remains at the foundation of U.S. legal understanding regarding Native possession of the land.

Marshall understood, and sought to deflect the moral issues his finding raised: “We will not enter into the controversy whether agriculturalists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess.” Rather, concluded Marshall, “Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim.”

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The Supreme Court had determined that Indians had a right to occupy land, but they did not own it. Since Natives did not own the land, they became prey to an increasingly loud argument within the United States that Indian occupancy of land in close proximity to whites inevitably led to trouble. To avoid the trouble, whites argued Indians should be moved away from the edges of western settlement. Some Indian tribes had voluntarily removed themselves westward. The Delaware, for example, when they made original contact with Europeans, had lived in New Jersey and eastern Pennsylvania. After the American Revolution, they were found in Ohio and later Indiana.

After the purchase of Louisiana in 1803, the Federal Government began to see in the land west of the Mississippi a way to solve the problems created by interaction between settlers and Indians. In 1804, Congress by law encouraged the President to sign treaties with tribes in which land east of the Mississippi was swapped for land on the western banks of the river. By the early 1820s the idea requiring Tribes to move west was gaining significant political support.

This support came from two usually opposed political groups. Western state governments, and westerners generally had long complained that the Federal Government had been too slow in opening Indian land for settlers. For example, in 1820, a congressman from Georgia bitterly complained that when the State gave up its claim to western lands to the Federal Government in 1802, everyone assumed the Federal Government would quickly gain title to the land from Indians and open it to settlement. Eighteen years later, Indian title still existed for much land in the state. Westerners were concerned that many Indian tribes, particularly the Creek and the Cherokee, were not interested in selling land, much less leaving. Nor were they interested when humanitarians worried about what might await Eastern Indians west of the Mississippi River. They simply wanted them gone.

With the election of Andrew Jackson as president in 1828, the Federal Government became a consistent ally of the Westerners. When the Creek informed the Federal Government that, “We deem it impolitic and contrary to the true interests of this nation to dispose of any more of our country,” the commissioners sent by Washington, D.C., offered a chilling reply: “If you wish to quit the chase, to free yourself of barbarism, and settle down in the calm pursuits of civilization, and good morals, and to raise up a generation of Christians, you had better go.” If the tribe chose otherwise, “You must be sensible that it will be impossible for you to remain for any length of time in your present situation as a distinct Society or Nations, within the limits of Georgia. Such a community is incompatible with our System and must yield to it.”

Relocation was also supported by many Eastern groups, who regularly expressed sympathy for American Indians. These groups knew the sad history of Native-white land dealing. They knew that Government efforts going back before the Revolution had proved of little value in solving the problem on any sort of equitable basis. Thus, in 1828, U.S. Indian Commissioner Thomas McKinney wrote, “What are humanity and justice in reference to this unfortunate race?” The solution lay in geography. Place Indians so far west that white settlement would not be a problem for a very long time, perhaps centuries. The Federal Government should create “a land of refuge, where this unhappy race may find rest and safety,” wrote Lewis Cass.

Many Christian religious organizations supported this idea. The Baptists in particular endorsed relocation. The Baptists were usually quite careful to also state that Indians had the right to choose this path, rather than have it forced upon them. “Whether it is expedient for the Indians to remove, is distinct from the question of whether they possess a right to retain their lands,” wrote the American Baptist Magazine.

Some whites opposed removal. Heman Humphrey, the president of Amherst College, said that removal was a plan, “to drive 70,000 unoffending people from the soil on which they were born, into distant wilds, where most of them will perish.” Others pointed out that while removal sounded simple from a distance, the logistics of moving, “a whole people, from helpless infancy to the decrepitude of age,” was immense.

Normally, Eastern “humanitarian” sentiment more or less balanced the more aggressive Southern and Western tendency to obtain Indian land and move the Indians off of it as rapidly as possible. This division resulted in federal policy usually falling somewhere in the middle of both their desires. But in this instance, with Eastern “humanitarian” sentiments split, the more aggressive Western view prevailed. Removal quickly became national policy.

Georgia was where things most quickly escalated. The state government aggressively sought to drive Indians west through a series of increasingly hostile laws. President Andrew Jackson not only looked the other way, his Secretary of War stated that Georgia had every right to pass such legislation and even seize Indian land. Congress, in 1830, further advanced removal policy. It passed a Removal Act, significant less because of its recommendation for westward migration by Natives, something the Government had long encouraged, but more for the fact that it included for the first time funds to pay for removal – $500,000 was appropriated to pay to move Indians west of the Mississippi River. Faced with overt hostility by Georgia and finding no help from the executive branch of the Federal Government, the Cherokee Tribe in Georgia tried one last way to stop removal – appealing to the Supreme Court.

Cherokee Nation v. Georgia (1831) was an important legal victory for Indians but offered no practical relief from the demand to move west. John Marshall, clearly disturbed by the aggressive pursuit of removal, used the case to limit interference in Tribal governments by states. He raised and answered the question of the legal status within U.S. law of a Tribal Government. Not quite a foreign nation, he found, but also not simply a group of Americans or another U.S. state, Tribal governments, and by extension tribal members, were legally unique. “Domestic dependent nations” was the phrase Marshall penned to describe this uniqueness, which he defined as, “Their relation to the United States resembles that of a ward to his guardian.”

When it became clear that the 1831 decision would have little practical effect, Marshall used another case, Worcester v. Georgia (1832) to further define the relationship between the United States and Tribal Governments in ways that not only favored Tribal Governments, but seemingly contradicted what he had earlier written. Although in the past Marshall had written of a right of conquest, in Worcester he ridiculed the “extravagant and absurd idea, that the feeble settlements made on the sea coast” by Europeans somehow gave them the right to govern Indians or own their land. The settlements, Marshall concluded gave settlers nothing more than the right to purchase “such lands as the natives were willing to sell.” Marshall would ultimately conclude, “the Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force.”

Despite these two important legal findings, little changed in practice. President Andrew Jackson is alleged to have said, “John Marshall has made his decision, now let him enforce it.” Although Jackson likely never spoke those words, the phrase captured the federal executive branch’s unwillingness to intervene on behalf of the Cherokee, which was likely the attitude of most Americans. In 1835, the Federal Government signed a treaty with the Cherokee forcing the tribe to relocate, knowing that the signatories did not represent the majority of the tribe. The Trail of Tears, in which thousands of Cherokee were forced west in 1838 and 1839, was the treaty’s result.

Other relocations would follow. By 1855, the Federal Government counted 315,000 Indians, all but 8,500 living west of the Mississippi River. The only remaining significant Indian populations east of the Mississippi River lived in Michigan and Wisconsin.

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Removal did not work. It failed from a Native perspective and it failed in the opinion of the United States Government. The objective was to put the Indians in a land so remote there would be no contact between them and white settlers. By the late 1840s, however, it was clear that geographic separation was impossible.  

Two reasons explained this. Contiguous frontier settlements, moving from east to west, advanced far more rapidly than Government officials had anticipated. But even if contiguous settlement had proceeded more slowly, the desire of settlers from the East to make it to the Pacific coast required them to pass through land under Native authority. In the 1840s, a solid wall of Indian controlled land ran from Minnesota to Texas. It separated settlers in the East from the Pacific shore. Emigration routes through this tribally controlled land were points of constant contact and friction. Whites heading to California trespassed on Indian land. The discovery of gold in California in 1849 simple made a bad situation worse, turning a steady stream of settlers crossing Indian land into a sudden torrent.

Three options were possible: 1) The Government could stop white trespass on Indian land; settlers could, after all, employ sea routes to travel from the east coast to the west. 2) The Government could better police the frontier, or at least the trans-continental immigration routes, to avoid conflict. 3) Indians could again be moved away from the immigration routes, avoiding conflict by avoiding contact. The first option was never considered.

The New York Times suggested that policing of transit zones might solve the problem. It was, “quite evident, that with civilization spreading across the continent, we never can submit to the roaming and reckless habits hitherto permitted to the Indians. A broad zone of travel, including the railroads and the emigrant routes, must be made absolutely free from the incursions of the marauders.”

Policing could be tried, but despite the New York Times opinion, almost no one had much faith in it working. Centuries of failure to legally, peacefully, and ethically structure Indian-white contact to avoid conflict did not suggest the idea held much practical likelihood of success. Something else was needed – a new way to remove Indians. Reservations became the answer.

Indians were to be confined on relatively small, and increasingly remote, tracts of land. As with relocation, Indian haters and humanitarians both managed to find reasons to support the idea. Humanitarians argued that remotely located reservations would allow Indians to finally avoid contact with whites. Presumably, reservations would be small enough and remote enough to be of no interest to white settlers. Humanitarians argued that reservations would give Indians permanent land tenure (although they never addressed why, given past history, Indians would believe that this promise of land would be any more lasting than past promises).

Humanitarians also held that reservations offered the last, best hope for “civilizing” Indians. Concentrating tribes would expedite the work of Christian and other organizations to convert Native Americans to the gospel of Jesus, as well as inculcate the American values of agriculture, thrift, and hard work.

By the 1850s, virtually all new treaties not only ceded land to the United States, they also defined relatively remote pieces of land given to Indians for their own use. Specific land was either set aside in the treaty or it was agreed that a certain amount of land would be set aside by the Federal Government, usually to be withdrawn in the future from the pool of land available to setters to purchase. Over approximately thirty years, the reservation process succeeded in extinguishing the Indian title to most land in the U.S. In 1881, the Federal Government concluded that there was probably little, and likely no, “Indian land Title” not governed by treaty. What land tribes controlled was the result of federally created reservations.

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1887-1934: Allotment & Forced Assimilation

If missionaries and humanitarians saw reservations as the last best hope to voluntarily civilize Indians, their objectives were not met. Tribal people living on reservations clung to their own beliefs, culture, and ways. Reservations had made Indians “prisoners and paupers,” but not yeomen farmers in the Jeffersonian ideal. As this realization became widespread, nineteenth-century America tried one last time to resolve the “Indian Problem;” through assimilation.

As it always had, the land played a critical role in executing this new objective. In this plan, the reservation would be broken apart, with each Indian receiving a small piece of personal property. Indians would become just like any other white farmer, who owned a parcel of land. As with so much else, the roots of the policy went back to the colonial period.

Since the seventeenth century, it had been conventional wisdom among settlers from Europe that when Indians owned and farmed property their life was improved. Europeans firmly believed that ownership of private property led to material wealth and such wealth was an essential component of what they believed to be civilization. This fundamental assertion remained unchanged in the nineteenth century. James Madison held that Indians must adopt to individual land ownership “for a transit from the habits of the savage, to the arts and comforts of social life.” The U.S. Commissioner of Indian Affairs was more direct in 1838: “Unless some system is marked out by which there shall be a separate allotment of land to each individual, you will look in vain for any general casting off of savagism. Common property and civilization cannot co-exist.”

It was often claimed that this was so because Indians who owned the land would work harder to benefit from it. But the case was made that Indians already enjoyed the right to profit from their own work. The Cherokee nation pointed out that their land use policy, allocating land to individuals for farming and allowing them to retain the land so long as it was in productive use, was actually a better way to encourage industry. A lack of industry on the part of a white farmer who owned land could not be easily addressed within U.S. law. The land belonged to the farmer, to use or allow to lay fallow as the farmer chose. The same situation within the Cherokee nation could be resolved by reallocating unused land to someone who would put it to agricultural use.

A few government leaders understood this. Henry Moore Teller, a U.S. Senator from Colorado, was clear on the point:

Each Indian goes upon the reservation and takes for himself such land as is unoccupied and works it, and he works it just as long as he sees fit. That is the rule among all the Indian tribes. That possession of an Indian, that appropriation by him is a sacredly protected and guarded among Indians as though he owned a fee-simple title [the traditional land ownership device in U.S. law]; but when he abandons it and goes away from it then any other Indian may step in and take his place. Knowing that fact, and knowing that the Indian protects these possessions with as much scrupulous honesty as we protect the fee-simple title, I say that when it is asserted that they will not work because the title is not secure, it is nonsense.

Similarly, the connection between individual land ownership and civilization rested on the belief that tribal organization was, in and of itself, uncivilized. A few whites understood, however, that weakening or destroying Tribal governance would actually work to the disadvantage of Native Americans. Julius Seelye, president of Amherst College, pointed out that deliberately seeking to destroy tribal organization overlooked, “that communal relationship on which not only the very basis of human society depends, but in which is the germ of whatever is distinctly human.” Similarly Congressman Charles Hooker noted on the floor of the House that the Indian societies would no longer exist, “if this policy prevails and the allotments are made in severalty, and the tribal relation, which is the great bond of union holding these Indians together, is destroyed.” Teller, Seeyle, Hooker, and others who took this point of view, however, proved largely unpersuasive within the white community. Assimilation became the goal of U.S. policy toward Indians, and fee-simple land ownership became the chosen tool through which to implement the policy.

U.S. treaties, as early as one signed in 1805, made possible allocation of land on an individual basis. When allotment became the formal policy of the Federal Government in 1887, it was estimated that Indians individually owned about 17 million acres of land, while another 121 million acres was owned collectively through Tribal Governments. In 1934, when the policy ended, the Government had made 240,000 allotments, amounting to approximately 40 million acres of land. According to the law, the rest was to be purchased by the Government with the proceeds being held in trust by the Federal Government for the benefit of those Indians who had formally held the land by treaty. By 1934, this process had placed 60 million acres into Government ownership, 22 million of which were opened to white homesteaders.

In 1934, the Federal Government abandoned the policy land allotment. The policy’s overall failure was discussed in a 1928 report written by the Institute for Government Research (soon to be renamed the Brookings Institute): “It almost seems as if the government assumed that some magic in individual ownership of property would in itself prove an educational civilizing factor. Unfortunately, this policy has for the most part operated in the opposite direction.” Actually, a historical survey would have demonstrated to the report’s authors that not only the Government, but most citizens, had believed in just such magic. But there was no such thing. As The Christian Science Monitor wrote, “In brief, the allotment act destroyed the native society, economy, and organization.” The Indian Re-organization Act of 1934, returned unallocated land to the status it had held prior to 1887.

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The information upon which this essay is based, as well as all quotations, comes from Stuart Banner, How the Indians Lost Their Land, published in 2005 by the Harvard University Press, Cambridge, Massachusetts