How the Indians Lost Their Land: Law and Power on the Frontier, and: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands, and: Sovereign Selves: American Indian Autobiography and the Law (review)

Abstract

Indians Lost Their Land: Law and Power on Frontier. By Stuart Banner. (Cambridge, MA: Belknap Press of Harvard University, 2005. Pp. 344. Cloth, $29.95. Paper, $18.95.)How Discovery of America Dispossessed Indigenous Peoples of Their Lands. By Lindsay G. Robertson. (Oxford, UK: Oxford University Press, 2005. Pp. 239. Cloth, $29.95. Paper, $19.95.)Sovereign Selves: American Indian Autobiography and Law. By David J. Carlson. (Urbana, IL: University of Illinois Press, 2006. Pp. 217. Paper, $30.00.)Reviewed by Regna DarnellThe three volumes juxtaposed here reflect a recent burgeoning interest in and American Indians. The intersection between two is far from self-evident and evokes contemporary national anxieties about how present state of America's first peoples could have come into being. appears in two of these titles and is implicit in third, paraphrasable as How did American Indians come to write autobiographies? Despite presumed good intentions of at least many on both sides of cross-cultural encounter, Indian land and Indian self-determination were progressively eroded. The legal system perhaps offers contemporary sympathizers with Indian efforts to escape a colonial legacy a methodologically intelligible mode of access to nature and meaning of encounter between Native and European. The apparent stability of the law perhaps assuages guilt of invader.Stuart Banner's overview of frontier manipulation of and increasing settler power to remove Indians from title to their traditional lands emphasizes that our inherited histories of Indian-white contact are inadequate, colored by rarely questioned stereotypes and equally questionable legal histories. Coercion and consent alternated by circumstance and local balance of power at different times. Neither Indians nor whites were a single homogeneous category. Banner is thus able to tell a nuanced story of particular encounters and their collective power over time.Ownership of land, by settlers or Indians, is distinguished from claims to sovereignty over land (a much broader category involving competing European claims to same land). Moreover, humanitarian concerns to protect Indian interests in and social action have been consistent but have taken different forms in different periods. At all periods, however, justifications for land grabs assumed superiority of European civilization and ability to use land productively. The Proclamation of 1763 recognized Indian ownership of land, so that it could be purchased not by individuals, but by Crown. Initially land was deemed empty, with sufficient resources to meet all needs. Implicit evolutionary theory combined with English struggles to close in commons in village lands at home to justify taking land for settler use in America.Banner attempts to explore Indian standpoint about land transfer and early treaties. He recognizes complex relations of power/coercion and voluntary sale oscillating by context and period. Indians exercised agency even when they had different understandings than Americans. Fraud occurred on both sides, but not in all cases. Authority to sell, fairness of price, and increasing disparity of power between parties occurred over time.Colonial private contracts rapidly gave way to sovereign treaties. The thirteen states attempted to draw boundaries beyond which settlement was prohibited, but none could be enforced. After American Revolution, however, Indians were understood as defeated nations whose lands were available by right of conquest, even though most had not been defeated.The transition from ownership to occupancy came gradually, with devaluation of land tenure held by nomadic peoples and public attention glossing over number of tribes that were actually agricultural. Frontier land settlement rarely followed Eastern legalities, and speculators bought land before acquiring title to it. …