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

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

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

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

Excerpt

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-

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