How the Indians Lost Their Land
Land and Power on the Frontier
Cambridge, Mass. & London
The Belknap Press of Harvard University Press, 2005
$ 29.95, 344 p., ISBN 0-674-01871-0
Reviewed by Malie Montagutelli
Stuart Banner is Professor of Law at UCLA where he teaches Property, American legal history, and capital punishment. He is the author of The Death Penalty: An American History, published in 2002, and prior to that work, in 2000, of Legal Systems in Conflict: Property and Sovereignty in Missouri, 1750-1860. And it is precisely to this question that he returns in the present work, this time taking into account the loss of title to the land by the Indians over the whole territory, which is now the United States.
Starting from the observation that “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” , Banner wonders whether this happened, as most people will have it, either through coercion (by violent conquest) or consent (through a series of consensual, and contractual, transactions). By studying the federal and local policies concerning the different tribes and the contracts ruling land transfers in the colonies, and later in the territories and new states, he puts a new light on a complicated history. It is a history shaped by conflict and disagreement among whites as well as conflict and disagreement among the Indians themselves.
At the bottom of the logic pervading the book is Banner’s rejection of the common belief that any transfer of land, or any other property for that matter, is “either voluntary or involuntary, as instances of either contract or conquest. As analysts of the legal system have pointed out for some time [...], 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” . Banner demonstrates that the Indians’ decisions to transfer their land to the new settlers was both, “voluntary in some senses and involuntary in others” . Through a complex study of the American legislation ruling land transactions—which originally stemmed from English laws and customs brought to America by the colonists, of the legal changes in property rights, of treaties and of the evolution in Indian policy, Banner determines and examines the middle ground which extends between conquest and contract, arguing that reality lies within this middle ground. In other words, the explanation for the Indian loss is not a question of either/or, but more realistically a combination of both processes, coercion and consent, throughout the history of the relations between Indians and whites.
During the timespan covered in the book, over three centuries, the main factor to cause change in the official policy toward the Indians was without a doubt demographics. A fast growing population explains the constant demand for more land; but other factors came into play as well: the dynamism of the white population and the assumption of white superiority well into the 20th century certainly also account for the history of white-Indian relations. The history of the occupation of the full territory is therefore the history of the evolution which took place thanks to a number of rationalizations intended to justify the ever increasing encroachment on Indian land.
The Indians never claimed property rights and had never sold land before the English arrived. However, they were agriculturalists, not nomads as commonly believed, and individuals and families had exclusive rights to cultivate particular plots of land. These rights were usually allocated by the leader of each tribe. And the type of control a tribe exercised over its territory was closely akin to the European concept of sovereignty. A tribe could move once its members had exhausted the land and thus Indian property rights were essentially temporary.
On their part, when the earliest English settlers came to America, they had clear concepts regarding property ownership and sovereignty over a territory. For them, property referred to the question of who owned the land in America, and they clearly recognized the Indians as the owners of America. Sovereignty, on the other hand, referred to the question of who had the power to govern in America, and that belonged to the English Crown, by right of discovery and settlement of America. It ensued that they would endeavor to buy land from the Indians. During the second half of the 17th century, purchasing land from the Indians became the norm in the British colonies. Many deeds by which land was sold survived to prove this. During the colonial period, the Indians could legally sell land only to the government or to a purchaser who had been licensed by the government.
In the beginning, it seemed that there would be enough land for everyone. But as white demand for land increased, many settlers assumed that the Indians were only the owners of the land they actually physically occupied and that the rest was open for settlement. Some also suggested limiting Indian property rights because, they reasoned, Indians lived in a state of nature that was pre-civilized.
But a society has to leave the state of nature and reach a certain stage of civilization before it develops institutions of government capable of recognizing and enforcing property rights in uncultivated land. The English had such institutions, the argument went, but the Indians did not. 
This was the first of many later deviances from official policy, which from the start acknowledged the Indians as the owners of the entire continent of North America. So as Banner states “much of the Indians’ uncultivated land was being illegally appropriated—‘illegally’ not just under Indians’ law but under the colonizers’ law as well” . As a result of this fast deterioration of principles, the Indians were driven farther and farther west and also deeper in poverty, very early on.
Banner wonders how the Indians accepted to sell so much land and how it was that they became so poor. He reasons that not all transactions were voluntary and that the Indians were coerced into selling their land. Some surviving deeds are obviously shams; but more importantly, Indians quickly found themselves in situations were they had to sell. First, because they soon realized that they could exchange their lands for many useful things which the English brought. Secondly, they viewed the sale of their land as the cement which created strong political alliances between them and the English. In effect, an individual tribe would trade land for military protection. Banner also reasons that “large-scale English settlement often produced dramatic ecological changes” , and that as a result land became less valuable to the Indians so that the only alternative left was to sell. Concerning this first phase of Indian-white relations, Banner concludes: “Two societies converged in a marketplace, and the better organized took wealth from the poorly organized” .
The Proclamation of 1763 set into motion a shift in Indian policy from contracts to treaties, i.e. from transactions between private parties to transactions between sovereigns. “Under the new system, individual landowners derived their title from the Crown, not from the Indians. [...] Inserting the Crown between the Indians and the ultimate Anglo-American landowner made the validity of the Indians' title irrelevant to the landowner” . In addition, the constraints that the new regulations put on the settlers only contributed to more fraudulent pseudo-transactions. In the end, “the Proclamation of 1763 marked the beginning of a gradual erosion of the political base for recognizing Indian property rights” .
With Independence, Indian land policy did not change significantly, but at the same time there was strong political pressure to acquire land quickly and cheaply. In the process, “the federal government began to dictate to tribes the extent of land they would be allowed to occupy” . Resentment mounted among the different tribes, which began preparing for war to defend themselves against the demands of the United States. In an effort to find a remedy, in 1790 the Intercourse Act was passed. It created the right of "preemption," which established that in order to be valid any sale of land had to be made at some public treaty held under the authority of the United States. Back in 1763, the Crown had claimed this power for itself; the new American government was now claiming the same power for itself. Preemption is still in force today. Underground private purchasing nevertheless continued as the land owned by the Indians was for the most part far away from the centers of government which made control difficult.
An 1823 Supreme Court decision weakened the Indians' position even more: in Johnson v. M'Intosh, the court declared that the Indians were in fact not the owners of the land but had merely a “right of occupancy." Conventional wisdom believed at the time that the land belonged to the states and federal governments of the United States. That was the period when the first descriptions of tribes living west of the Mississippi depicted Indians as neither farming nor conceiving of themselves as the owners of the land beneath them. They came to be increasingly seen as nomadic hunters, and even worse as the temporary occupants of land that really belonged to the United States. To make matters worse, they were also the victims of racism.
The next step in the history of United States Indian policy was removal, from the late 1820s to the early 1840s, highlighted by the Removal Act of 1830 and the infamous Trail of Tears in the fall and winter of 1838-1839. To Stuart Banner
Removal looks much more like a continuation of earlier Indian land policy than a departure from it. Removal, just like the acquisition of Indian land for the previous two hundred years, was structured as a series of voluntary transactions. The federal government went to considerable trouble to obtain the signatures of Indians on treaties in which the tribes ostensibly consented to be removed. Government officials of course used a variety of underhanded tactics to secure some of these treaties, but they were the very same tactics that had been used to obtain the land cessions of the preceding decades and the private land purchases of the colonial era. [191-92]
The geography of the United States actually suggested the new policy, as beyond the Mississippi River lay a very large region about which very little was known besides the fact that it was very sparsely populated. In 1831, another Supreme Court decision, Cherokee Nation v. Georgia, determined that Indian tribes were not foreign states, nor were they American states; they were domestic dependent nations.
The end result of this slow evolution in policy is that by the mid 19th century, the eastern Indians had ceded virtually all their land; “the land east of the Mississippi was almost entirely possessed by non-Indians” .
But removal was not a permanent solution to the Indian problem, which in effect had simply been displaced to the west. By the early 1850's, the next step was the creation of reservations, “land the government had selected from its own land and reserved for the Indians' use. The areas to which eastern tribes were removed consisted of land the government had only recently purchased from western tribes” . The idea behind the creation of these reserved areas was to keep the Indians away from the settlers and vice versa.
At the end of the 19th century, after having tried to keep the Indians in segregated areas, the government switched to a new policy and decided to assimilate them into American life, with passage of the Dawes Act of 1887. The Dawes Act, or General Allotment Act, remained in effect until 1934. “From the Indians' perspective the result was, once again, disaster” . The purpose was to turn Indians, who had become American citizens in 1924, into hard-working farmers. Private property would bring them to civilization. “White reformers had hoped that allotment would encourage Indian farming, but its net effect was the opposite: by 1930, there were fewer Indian farmers, farming less land, than there had been in 1910. [...] The Indians seemed no more assimilated in 1930 than in 1880” .
Then with John Collier as commissioner of Indian affairs, the Indian Reorganization Act was passed in 1934, which gave Indians rights they never had before.
Since the 1960s and 1970s, Indian tribes have concentrated their efforts on getting land back, or on being compensated for land wrongfully taken. But Stuart Banner's general conclusion is that
The law governing the acquisition of the Indians' land [...] [has] scarcely changed. [...] The transformation that took place over the middle decades of the twentieth century was thus not a change in the law. It was a change in the relative political power of Indians and whites [...] when the balance began to tip back a bit toward the Indians, they gained the power to force practice to move closer to the formal law. Lawyers and judges began taking their claims more seriously. Legislators and executive branch officials began fearing the consequences. 
In the end, Stuart Banner concludes that the Indians have always been caught midway between force and consent and that their miserable fate is due to the failings of human nature—the settlers' greediness and dishonesty—rather than to the misdeeds of the government, whether colonial or later federal. In many ways, he intends to correct an overly simplistic vision of Indian policy, which would have dealt ruthlessly with the native populations of North America. At the same time, he implies some sort of fundamental truth: in any conflict, the winner is always the one who holds the power. His book is highly readable, extremely carefully documented, and presents a very stimulating reinterpretation of North American land transfers with their complexities and many contradictions.