Native Americans and North American History – Part 3

How Native Americans lost their land.

In 2021, a relatively obscure virtual conference Microsoft held for information technology specialists received widespread attention when its host, at the beginning of the conference, issued what’s become known as a “land acknowledgment.”

As described by Eugene Kontorovich in the Wall Street Journal:

Such “land acknowledgments” -- a listing of indigenous tribes that have inhabited the area, followed by apologies for the institution’s “settler colonialism” -- have in the past decade become ubiquitous in Canada and are catching on in the U.S. … The statements, whose text varies from institution to institution, typically assert that Native Americans have been in the area “since time immemorial,” putting us in the realm of myth rather than history. In fact, Native Americans came to North America at various times, migrated and sometimes displaced each other … The statements often apologize for “dispossession” or for being present on “stolen land” or “occupied territories.”

Such “land acknowledgements” imply a narrative in which Native Americans were stripped of their land wholesale by evil oppressors.  That narrative is inaccurate.  If you want to learn a lot more about how Native Americans lost their land, a great book on the subject is How the Indians Lost Their Land: Law and Power on the Frontier, by Stuart Banner.

As Banner writes:

The English colonists who arrived in North America saw a vast amount of land. They met many people who lived on the land. Wherever they went, they had a decision to make: Did the Indians own the land? Were the English bound to purchase it, or could they simply take it? The issue was a controversial one in the earliest years of colonization, eliciting a variety of theories on both sides. 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 … The principle of Indian landownership was never recognized with unanimity. There were always some English colonists, and sometimes even some colonial governments, willing to take land from the Indians without paying for it. All laws are violated sometimes, and this one was probably violated more than most. As the English population of the colonies grew, so did the English demand for Indian land, and incidents of trespassing grew more frequent. But if one is interested in overall English colonial land policy, in how the English treated Indian land as a general matter, the answer is that they treated the Indians as owners of their land … after some controversy in the early years, the English normally acknowledged that Indian land had to be obtained by contract, not by force.

That was true from very early on:

In Plymouth as in Jamestown, the English settled land with the Indians’ consent … Purchasing land from the Indians became common almost from the beginning of English settlement. In Virginia the early governor Thomas Dale bought land from the Indians. The earliest settlers of Massachusetts carried instructions that “if any of the savages pretend right of inheritance to all or any part of the lands granted in our pattent, wee pray you endeavor to purchase their tytle, that wee may avoyde the least scruple of intrusion.” Early seventeenth-century Massachusetts towns were typically founded by purchases chases from the Indians. In 1663 the proprietors of the new colony of Carolina assumed that the first settlers would buy land from local Indians. The same year in New York, when the Dutch government tried to prevent three English settlers from purchasing Indian land, the settlers proudly declared “that wee would purchase the land as wee are Englishmen.” It did not take long for the recognition of Indian ownership to become the norm … The quick emergence of that norm can be seen most clearly by tracing land policy in a single colony, New York. England took control of New York in 1664, and the following year the colony’s first English governor informed the Duke of York that “upon this tract of land several new purchases are made from the Indians since my coming.” By 1669 an anonymous New York writer could explain that while the “Tenure of Lands is derived from his R[oval] H[ighnes]s, who gives and graunts lands to Planters as their freehold forever,” a grant from the Crown was not enough to put a colonist in possession of land. It merely gave the colonist the right to buy land from the Indians: “the Planters themselves are purchasers from the Indyans.” … [T]he writer exclaimed, that “the Governour gives liberty to Planters to find out and buy lands from the Indians where it pleaseth best the Planters.” In 1674 the Duke of York instructed the colony’s lieutenant governor that “when opportunities shall offer themselfes (as I am informed they frequently doe) for purchaseing great tracts of land for Me from the Indians, and, for small sumes,” he should seize the chance to do so. Such instructions then became standard, repeated to new governors and lieutenant governors when they took office. Colonial officials in New York thought of themselves not as conquerors but as bargain shoppers, waiting for the Indians to put their land on sale … By 1698, when the Earl of Bellomont, New York’s new governor, asked the colony’s attorney general, James Graham, about “the Methods of making grants of Land since the settlement of the Government under the Crown of England,” Graham had no trouble providing an answer. The land first had to be purchased from the Indians. “If the lands were not purchased of the Indians then a petition was made to the Governor and Councill for a License to purchase the same. Then there was an order der for a purchase in the presence of the Magistrates of the County where the land lay, and in such a time, and if that method not followed then the License and purchase void, then if regularly purchased should usually preferr a petition to the Governor and Councill for a Grant of the same.” The colonial government could grant licenses to purchase, and it could ratify purchases already made, but it could not dispense with the requirement of a purchase from the Indians. Prospective purchasers seeking licenses were careful to specify that the land they wished to buy was “yet unpurchased of the Natives.” By the middle of the eighteenth century, New York required that lands purchased from Indians be first surveyed, by a government surveyor, in the company of Indians from the selling nation, to avoid subsequent disputes. Land purchasing had become a routine matter. Purchasing quickly became the norm in the other colonies as well.

Much of the land lost by Native Americans was the result of various tribes’ allying with the losing side of numerous wars.  As Banner writes:

There were many wars between colonists and Indians, of course, and when the English won they took some of their adversaries’ land. The English did not conceive of any of these wars, however, as wars of conquest, undertaken for the purpose of obtaining land. Rightly or wrongly, they perceived each of the wars as provoked by the Indians, and the land taken as just compensation for their trouble. The amount of land acquired by war was in any event a small percentage of the colonies’ surface area. Much more land was obtained by purchase than by conquest.

Banner then proceeds to discuss the large body of evidence showing that purchase was the primary means by which Native Americans lost their land:

[T]here are three indications suggesting that the purchase of land was, at the very least, extremely common. The first is the sheer number of surviving deeds by which Indians sold their land to English colonists. In every colony, many of the earliest property transactions for which there is still a record involve Indian sellers and English buyers. Some of the surviving Indian deeds, particularly in the later colonial period, cover enormous areas. There are so many surviving Indian deeds, ranging from sales of small parcels to individuals right up to sales of huge territories to colonial governments, that the English purchase of Indian lands must have been a common event … A second suggestion that purchase was the ordinary method of acquiring Indian land is the ubiquity of colonial statutes regulating the purchasing process. These laws required private purchasers to obtain permission from the colonial government before buying Indian land … [T]heir purpose was to facilitate purchasing, like the laws regulating any other market. The fact that every colony had such laws again suggests that the norm was to purchase chase land from the Indians. A third indication that purchasing was the norm, and that the English recognized Indian property rights in land, is that colonial officials often enforced Indian property rights against the competing claims of colonists. New England court records are full of property disputes, many involving Indian property owners, and the Indians were treated the same as English litigants. When colonists or their livestock trespassed on Indian land, for example, Indian plaintiffs prevailed in court. In 1710, when a group of Mohawks refused to permit New York officials to survey land the Mohawks claimed not to have sold, Governor Robert Hunter returned to Albany, checked the property records, discovered the Mohawks were right, and called off the survey. In 1733, when the Mohawks persuaded Governor William Cosby that a purported sale of their land had been fraudulently procured, Cosby invalidated the transaction.

We’ll continue the history of how Native Americans lost their land in the next essay in this series.

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.