Native Americans and North American History – Part 4

How respect for agriculture and comity came to rule the day.

Let’s take a step back for a moment in our exploration of how Native Americans lost their land to assess exactly how Native Americans may or may not have come to “own” all of North America in the first place.  As Stuart Banner writes in his book How the Indians Lost Their Land: Law and Power on the Frontier:

To acknowledge the Indians as property owners [as the English colonists did], however, only raised another question -- whether the Indians owned all of North America, or some lesser amount. North America was so big and the Indian population so small, many of the early English writers on colonization reasoned, that there would be room enough for everyone … Because the population density of England was so much higher than in North America, the English used their land more intensively. A far greater percentage of the land was in cultivation. Agricultural land was farmed year in and year out. In North America, the greater ratio of land to people allowed Indians to set aside large areas as hunting grounds-zones that were occupied and used, but not cultivated. Some tribes inhabited cultivated areas only during the agricultural cycle, and moved elsewhere for the winter. Others had enough land to warrant shifting the areas under cultivation every few years, to allow the soil in any given place to be naturally replenished with nutrients before it was planted again. Cultivated land abandoned for the winter, and land intentionally kept out of cultivation for a period of years, was being used but it was not being occupied, and it was specifically not being cultivated. The ambiguity as to which activity was the relevant one for determining property rights had very important practical consequences. Did the Indians own their hunting grounds? Did they own the land they had once cultivated but were not currently cultivating? These categories of land amounted to a majority of the land in North America. Did the English have to buy it, or could they simply take it?

It's a question worth considering.  As an initial matter, note that the host of a Microsoft technical conference cited in the previous essay simply assumed that the listed Native American tribes had been on the land “since time immemorial,” but there’s increasing evidence that other human tribes roamed North America long before any of the Native American tribes known today.  As Smithsonian Magazine reports:

An analysis of fossilized footprints at White Sands National Park in New Mexico offers what some scientists say is the most conclusive evidence yet that humans lived in North America long before the end of the last Ice Age. The research, published in the journal Science, dates the prints to between 21,000 and 23,000 years ago … Even if the study’s findings hold up, the question of what became of North America’s Ice Age inhabitants remains. Andrea Manica, a geneticist at the University of Cambridge who was not involved in the study [says] that clear evidence of ancestors of modern Native Americans splitting from Asian populations 15,000 to 16,000 years ago exists.  “This would suggest that the initial colonists of the Americas were replaced when the ice corridor formed and another wave of colonists came in,” he says. “We have no idea how that happened.”

So are those humans from over 20,000 years ago, or some other humans who may have arrived in North America even earlier, the actual “First People,” and did the ancestors of Native Americans take the land from those earlier people by force?  If so, whoever scripted the Microsoft land acknowledgement may need to add several more pages to it, reaching back over 20,000 years.  And putting that aside, whoever arrived in North American first surely didn’t magically come to own the entire continent simply by setting foot in it, just as the first human to dip their toe in the Atlantic Ocean didn’t come to own the entire Atlantic Ocean.  It would seem that something more than merely touching an infinitesimally small portion of a much wider area would be necessary to claim moral ownership of that much larger thing.

English philosopher John Locke’s theory of the moral justification for the development of property rights was widely influential in America.  And according to that theory of Locke’s:

Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person.  This no Body has any Right to but himself.  The Labour of his Body, and the Work of his Hands, we may say, are properly his.  Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property.  It being by him removed from the common state Nature placed it in, hath by this labour something annexed to it, that excludes the common right of other Men.  For this Labour being the unquestionable Property of the Labourer, no man but he can have a right to what that is once joyned to, at least where there is enough, and as good left in common for others.

Adam Smith also associated labor with property, writing in his “An Inquiry into the Nature and Causes of the Wealth of Nations” in 1776 that “the property which man alone has in his own labour, as it is the original foundation of all other property, so it is the most sacred and inviolable.”

While the idea that it was only through mixing one’s own labor with unowned land that one came to have a just claim on land ownership was prevalent among Americans, still, English authorities initially went ahead and assumed Native Americans owned all the land anyway.  As Banner writes:

In 1665 a visiting royal commission reminded the Massachusetts General Court that “no doubt the country is theirs till they give or sell it, though it be not improved.” … As a matter of official policy, the Indians were acknowledged as the owners of North America -- not just of their farmland, but of the entire continent.

This was also a matter of creating a practical spirit of comity with Native Americans:

It was far cheaper in money and in lives to maintain cordial relationships with the Indians, by purchasing land rather than seizing it. The “principle Care” of colonial policy was “to cultivate and maintain a good Understanding with all the Indians,” the Pennsylvania Gazette declared in 1736. To that end, “nothing hath contributed more than the Practice ... of purchasing their Claims to Lands.” … The need to maintain good relationships with the Indians was made even stronger by the fact that for almost the entire colonial period the English were competing with the French for control of North America. Both sides often needed the Indians as allies.

But as the law developed, mixing one’s labor with the land in the form of agricultural production came to be an important consideration for land ownership:

The classical association of agriculture and property in land persisted through the medieval and early modern eras. The link was familiar to seventeenth-century theorists like Locke, Grotius, and Pufendorf, who endorsed it. By the time the English were colonizing North America, many writers had used the connection between agriculture and property to develop a framework for understanding the development of societies. As Adam Smith (among others) explained, societies progressed through four stages: “hunting, pasturage, farming, and commerce.” Each stage corresponded to a particular set of political and economic institutions, including the institution of property. Hunters knew no property. Pastoralists needed, and thus developed, property in their animals. Farmers developed property in their land. And a commercial people like the English invented more complex property arrangements, to suit their needs. In the mind of an educated Englishman, property in land went along with agriculture. As William Blackstone noted in his ubiquitous legal treatise, “the art of agriculture ... introduced and established the idea of a more permanent property in the soil.” … For an educated Englishman it was unthinkable that a society of farmers would not own the land they cultivated.

This understanding came to protect Native Americans’ land, as long as they actively worked it:

The Indians may have lacked fences (because they had no domesticated animals to eat the crops), and written deeds, and all the other devices by which the English manifested their property rights in land. But none of that mattered, so long as they cultivated the land.

Native Americans roamed a North America that contained huge swaths of uncultivated land.  So much, that even if they were considered to have owned it all, they didn’t need anything close to it all, and that’s why Native Americans sold so much of their land:

Indians had two reasons to sell land. First, and most obviously, land could be exchanged for all the useful things the English brought. The precontact population density of North America was very low by European pean standards, and it only grew lower when the Indians were ravaged aged by European diseases.

Regarding the spread of those diseases, such spread was inadvertent, not malevolent.  As described in a previous essay, and by Shepard Krech III in his excellent book The Ecological Indian: Myth and History:

Some have been tempted to try to pinpoint “blame” for this horrendous epidemic, but the exercise is futile.  The symptoms were at first vague and subject to different interpretations, and by the time the illness was recognized as deadly, it would have been practically impossible to prevent its transmission.  No one involved – not Indians, not white people – wished to see smallpox spread.  While this was not the first or last time that traders transported microbes with trade goods, they had only mercantilism and profit in mind and understood that sick Indians brought fewer furs and robes, and dead Indians none … Indians themselves also figured unwittingly in the disease’s spread … Some Indians refused inoculation and died.

In any case, as Banner writes:

The Indians had lots of land. The English, meanwhile, were well stocked with clothing, axes, hoes, knives, fish hooks, kettles, guns, and the like, goods the Indians could put to immediate use in procuring food. The English also had a surplus of nonutilitarian commodities like glass beads, which the Indians valued because they could be incorporated into traditional ceremonies, along with familiar objects like shells and crystals. The English, who had plenty of goods, wanted Indian land, while the Indians, who had plenty of land, wanted English goods. There were enormous gains to be had from trade. It would have been remarkable if the Indians hadn’t traded land for other things. If creatures from another planet were to arrive on earth bearing astonishing labor-saving devices of which we had never conceived, and offered them to us in exchange for some commodity we possessed in abundance, we would make the same trade today. In retrospect, to be sure, the new availability to the Indians of English products can look less like a marvelous expansion of the possibilities of life and more like the insidious fostering of colonial dependence. “By the Habitual necessity those Indians acquire of European Assistance, and the Supply of European Goods,” one English settler could write as early as the middle of the eighteenth century, “by Degrees they become insensibly altogether dependent on the European Nation that settles among them.” The introduction of alcohol soon became widely recognized as an instance of this phenomenon. In some areas, the English introduction of guns set off arms races, in which tribes rushed to acquire guns to defend themselves against neighboring tribes doing the same thing. But if trading land for English products looks like a bad deal today, there was no way to know that at the time. Land was the Indians’ primary asset. If they wanted to obtain English products, they had to sell it.

Banner continues:

The Indians’ second reason to sell land was to cement political alliances between Indian and English communities. Tribes were sporadically at war with one another all through the seventeenth and eighteenth centuries. As Samuel Wilson explained of late seventeenth-century Carolina, “the Indians have been always so ingaged in Wars one Town or Village against another.” Nearby English allies were very useful for defense. The mere presence of a nearby English settlement could be enough to deter an attack from an enemy tribe. In New England, John Winthrop reported, the Pequots offered the English land to settle near them, “because they were now in war with the Naragansetts” and needed help. Less powerful tribes in the Connecticut River Valley, meanwhile, were offering land to English settlers in the hope that a powerful ally would help extricate them from the domination of the Pequots.

(Interestingly, near my home town of Norwich, Connecticut, there’s an Indian casino called Foxwoods owned by descendants of the Pequot tribe who are now very rich.  The land was obtained through a corrupt deal with the federal government and the State of Connecticut as described in the book Without Reservation: The Making of America’s Most Powerful Indian Tribe and Foxwoods the World’s Largest Casino, by Jeff Benedict.  Ironically, many of the descendants of Pequots exist only because their ancestors killed and pillaged other surrounding tribes.  Indeed, the word “Pequot” itself means “the destroyers.”)

As Banner continues:

The earliest colonists in Carolina observed that the local tribes “seem to be very well pleased art our Settling here expecting protection under us which we have promised them against another sort of Indians ... called Westoes.” Trading land for military protection against other tribes was clearly not in the interest of Indians collectively, but it was in the interest of individual tribes. The Indians were more politically fragmented than the English, and this would not be the only respect in which they would suffer for it.

Regarding the prices Native Americans got for the land they sold, Banner writes:

There are several obstacles in the way of any attempt to assess the adequacy of colonial land prices. Land values have risen so much in the past few centuries that all colonial prices look ridiculously low today, even those at which the English sold land to one another. The problem is not just, or even mostly, one of across-the-board inflation; it primarily involves the relative scarcity of land and other assets. We’re accustomed to a world in which land is scarce and money and manufactured goods are plentiful, but in the colonies the relationship was the opposite. Money and goods were in chronically short supply, while land was all around. Land was accordingly worth far less, relative to goods, than it is today. An additional complication is introduced by the fact that in many of the colonial Indian land sales with surviving price evidence, the price is expressed as a bundle of goods rather than in monetary terms. To assess the fairness of a sale of land for blankets, coats, needles, and the like, we would need to know the value of those items -- and not just their value in general but their value at the place where they were provided, a figure that must include the high cost of transportation. A kettle in the wilderness, several days’ journey from any English settlement, must have been worth much more than a kettle in Philadelphia, which in turn must have been worth more than a kettle in England … The most thorough treatment of the subject was undertaken in 1722 by the Massachusetts minister Solomon Stoddard, who asked: “Did we any wrong to the Indians in buying their Land at a small price?” Stoddard’s answer was no, for two reasons. “Tho’ we gave them but a small Price for what we bought,” he explained, “we gave them their demands, we came to their Market, and gave them their price.” Here Stoddard was anticipating a way of thinking about prices that would grow more widespread as the century progressed. If a buyer and a seller agreed on a price, the price was fair; there was no need to inquire further. But Stoddard did go on to think about the substantive justice of the sales. He was satisfied on this score as well. At the time the English bought the land, Stoddard concluded, “it was worth but little: And had it continued in their hands, it would have been of little value. It is our dwelling on it, and our Improvements, that have made it to be of Worth.”  The value of land depended on what one did with the land. The prices paid to the Indians by the English may have seemed low, Stoddard reasoned, but in truth they were not, because the land was still in its natural state. It was the settlers’ own hard work that had caused land values to rise, after the land had passed into English hands.

In the next essay in this series, we’ll explore how written contacts and fraud contributed to Native Americans’ loss of land.

Complete list of essays in this series: Part 1; Part 2; Part 3; Part 4; Part 5; Part 6; Part 7; Part 8; Part 9; Part 10.