How the Indians Lost Their Land: Law and Power on the Frontier

Summary

How the Indians Lost Their Land: Law and Power on the Frontier by Stuart Banner (Harvard University Press, 2005; paperback 2007) is a legal history of the transfer of land from American Indians to non-Indians between the early seventeenth and early twentieth centuries. Banner, a legal historian, challenges the prevailing consensus that "the Indians didn't consent to sell their land" and that land transfers were mere "paper over... conquest" (Banner 2005, Introduction).

Banner's central thesis is that "the difference between voluntariness and involuntariness is one of degree, not kind" (Banner 2005, p.3). He argues that land transfers cannot be "categorized dichotomously as either voluntary or involuntary, as instances of either contract or conquest" (Banner 2005, p.3). The book traces how methods of Indian land acquisition changed over time and varied by region, from early colonial purchases through treaty-making, removal, reservations, and allotment.

For Georgism, the book is relevant to the concepts of common rights to land, the distinction between sovereignty and property, and the historical processes by which land became concentrated in private hands.

Core Findings

English Recognition of Indian Property Rights (Ch. 1, pp. 10–27)

Banner argues against the "near-consensus among historians and lawyers" that the English did not recognize Indian property rights. He documents that "by the late seventeenth century... 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" (Banner 2005, p.10).

Banner cites extensive evidence: Increase Mather and William Penn referred to Indians as "Native Proprietors" or "Owners" of North America (Banner 2005, p.23). An early governor of New Haven declared Indians "were the true proprietours of the land (for we found it not a vacuum)" (Banner 2005, p.23). Robert Ferguson argued that "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" (Banner 2005, p.23).

The Contract-to-Treaty Transition (Ch. 3, p. 85ff)

Banner traces a shift from individual land purchases (seventeenth–eighteenth centuries) to formal treaty-making between the US government and Indian tribes. Colonial statutes regulated the purchasing process from early on — Massachusetts enacted the first in 1634, with most other colonies following suit (Banner 2005, p.27).

Sovereignty vs. Property: A Key Distinction (Introduction, pp. 7–9)

Banner emphasizes that "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" (Banner 2005, p.7). "Acquisitions of territory from Indians, therefore, were in a different category from acquisitions of territory from European nations. When the United States... 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" (Banner 2005, pp. 8–9).

From Ownership to Occupancy (Ch. 5, p. 150ff)

Banner documents a critical conceptual shift: Indian land rights were gradually redefined from full ownership to mere "occupancy" — the right to use land without owning it. This shift, codified in Johnson v. M'Intosh (1823), held 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" (Banner 2005, p.12). The case remains "the law" and is "still cited as authority by lower courts several times a year" (Banner 2005, p.12).

Removal, Reservations, and Allotment (Chs. 6–8)

The book traces the progressive dispossession mechanisms: - Removal (Ch. 6, p. 191ff): forced relocation of Indian tribes, particularly under the 1830 Indian Removal Act - Reservations (Ch. 7, p. 228ff): confinement to defined areas, representing a further restriction of land rights - Allotment (Ch. 8, p. 257ff): the Dawes Act (1887) and related legislation that broke up communal tribal lands into individual allotments, accelerating land loss

The "Degree, Not Kind" Framework (Introduction, pp. 3–4)

Banner's analytical framework holds that "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 constricting as to tip an action from one category into the other" (Banner 2005, p.3). He compares Indian land sales to employment contracts: workers are "constrained by their need to earn money to obtain food, by the range of jobs within commuting distance" — voluntary in some senses, involuntary in others (Banner 2005, p.3).

Policy Recommendations

Banner's book is a work of legal history, not advocacy, but it implies:

• Recognition that Indian land transfers involved genuine elements of both contract and coercion
• The distinction between sovereignty and property rights remains legally relevant for contemporary Indian land claims
• The allotment policy is documented as a mechanism of accelerated land loss

Nuances and Limits

• Banner acknowledges that "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" (Banner 2005, p.27)
• The book focuses on Anglo-American (English/British/US) land acquisition; French, Spanish, and other colonial practices are addressed only insofar as they influenced Anglo-American law
• Banner's framework of "degree, not kind" between voluntary and involuntary may be criticized for minimizing the coercive aspects of many transactions
• The book deliberately avoids creating maps of land transfer, noting that "the rules themselves have always been contested and in flux" (Banner 2005, p.9)
• The Georgist relevance is indirect: Banner does not discuss Henry George or Georgist theory, but his analysis of common rights vs. private property, and the mechanisms of land concentration, is pertinent

Key Quotes

"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." — Stuart Banner, How the Indians Lost Their Land, Chapter 1

"Every land transfer of any form included elements of law and elements of power. No non-Indian acquiring Indian land thought himself unconstrained by Anglo-American 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." — Stuart Banner, How the Indians Lost Their Land, Introduction

"There is a large middle ground between conquest and contract. 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." — Stuart Banner, How the Indians Lost Their Land, Introduction

"The Indians had property just as much as the settlers did; they just organized it differently." — Stuart Banner, How the Indians Lost Their Land, Introduction

"Property means ownership; sovereignty 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." — Stuart Banner, How the Indians Lost Their Land, Introduction

"Anglo-Americans 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." — Stuart Banner, How the Indians Lost Their Land, Introduction

"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 conventionually recognize. It was the power to establish the legal institutions and the rules by which land transactions would be enforced." — Stuart Banner, How the Indians Lost Their Land, Introduction

Bears On

• Land as Commons — Indian concepts of land rights vs. English property concepts
• Land Monopoly — mechanisms of land concentration
• The Great Land Robbery — the historical process of dispossession
• John Locke — Lockean property theory and its limits in the colonial context
• Community Creates Land Value — community vs. individual land rights
• Unearned Increment — the value created by community proximity to Indian lands

See Also

• Stuart Banner — author page
• Land as Commons
• Land Monopoly
• The Great Land Robbery
• John Locke
• Community Creates Land Value

Sources

1. Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge, MA: Belknap Press of Harvard University Press, 2005; pbk. 2007). ISBN 978-0-674-02396-3. — primary source for all claims
2. Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823) — the foundational Supreme Court case on Indian land rights, discussed throughout.
3. Robert Williams, The American Indian in Western Legal Thought — the "leading study" Banner argues against, p.11.