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Book Review
| Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier, Cambridge: Harvard University Press, 2005. Pp. 344. $35.00 (ISBN 0-674-01871-02).
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| According to Stuart Banner's book, How the Indians Lost Their Land: Law and Power on the Frontier, the conventional story of how European settlers gained property rights over the vast area that now comprises the United States from the original peoples occupying those lands is largely an internally inconsistent caricature. Banner has written an extremely thoughtful account of several centuries of legal thought, policy, and on-the-ground deals. The book explores the effects of shifting interests and conceptions of property law on the transactions between Indians and settlers, and Banner convincingly rejects a simplistic portrait of unscrupulous settlers and naïve Indians. Instead, Banner describes a constantly evolving set of relationships shaped by the balance of power between Indians and whites and their divergent conceptions of property. |
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The book proceeds largely chronologically, beginning with the first transactions between the colonists and Indians and ending with an epilogue describing recent Indian efforts to repossess wrongfully taken land or at the very least receive compensation for such lands. Banner's method throughout is to subject conventional understandings to rigorous scrutiny—and to consider both the intellectual and the material points of view of the different Indian tribes and the English colonists, and later the Americans. |
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Among the many claims that Banner debunks is the notion that the English considered the Indian to be without any property rights in the land (12). Banner argues that while some held this view, the consensus in England was that the Indians were possessed of standard property rights (even after England considered itself to have sovereignty). Naturally then, the colonists were required to purchase land in order to have title to it. Banner provides an array of sources to support his argument, and elaborates both intellectual and material justifications which explain why the English and the colonists would have assumed that Indians owned their land (35). He explains that this consensus view began to change only with the Proclamation of 1763, which was enacted by the English crown in significant part to respond to concerns by Indians, but had the effect of beginning to undercut the political and theoretical underpinnings of Indian property rights (92). Like many subsequent policy initiatives involving Indian land, the unintended consequences of the Proclamation ultimately harmed the Indians' interests. |
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Banner also complicates (though does not wholly reject) the standard trope that the Indians were "tricked" into selling their land (49). According to this take, any legal transactions that did take place between English and Indians involved such coercion or trickery that the Indians can't be understood to have consented to the transactions. This view is often undergirded by the claim that Indian tribes did not operate under any regimes that recognized exclusive property rights and therefore had no idea what rights they were selling. Banner provides persuasive evidence that once a few settlers made clear that the property transfer was permanent, subsequent tribes understood the nature of a sale to a colonist. |
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After undercutting the notion that Indian tribes did not understand the nature of land sales, Banner argues that the coercion and trickery claims are themselves more complex than is commonly understood. In the early days of European settlement, land was so abundant that land transfers were likely seen by Indians as advantageous and the Indians had sufficient power vis-à-vis settlers that they were unlikely to have felt coerced. As the settlers' numbers increased and the Indian population shrunk, however, the balance of power shifted and perceptions of coercion became more common. Following this power shift, the colonists were more likely to engage in the kinds of coercive practices readers might expect. |
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Banner's account of the English treatment of Indian property rights forms the basis for his thorough trashing of Justice Marshall's historical justification for the (anti-)canonical Johnson v. M'Intosh (183). Marshall rested his opinion concluding that the Indians possessed only a right of occupancy to any lands and no authority to convey fee title on the claim that the English had claimed the sole right to appropriate lands occupied by Indians—and that the United States had adopted this practice from the English. Banner, of course, provides strong arguments to contradict Marshall's first premise. |
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The later chapters tell a slightly less startling story—Banner is clear that late eighteenth and nineteenth century Indian land policies were largely "disastrous" for the Indians (257). These chapters too, however, evidence Banner's careful acknowledgement of the interplay of legal philosophy, good and ill-intentions, and material interests of both the tribes and those exercising power. |
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| Rachel D. Godsil
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| Seton Hall University School of Law |
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