Native Americans and North American History – Part 6

After the Revolutionary War, sales were made to tribes as sovereign entities.

As Stuart Banner writes in his book How the Indians Lost Their Land: Law and Power on the Frontier:

For most of the colonial period, Indian land was purchased by a wide variety of individuals and groups -- from ordinary farmers to large-scale real estate speculators, from towns to colonial governments. And Indian land was sold by an equally varied set of sellers -- from individual Indians, to small groups, to entire tribes. In 1763, however, at the end of the French and Indian War, when the imperial government reorganized its relationships with the Indians, this era came to an end. From 1763 on, land purchasing became a task performed exclusively by colonial governments, in the name of the Crown, and land selling became a task reserved to tribes. Indian land sales were transformed from contracts into treaties -- from transactions between private parties into transactions between sovereigns. After the American Revolution the government of the new United States would copy this feature of British Indian policy, and it has remained the foundation of land acquisition in the United States ever since.

In a previous essay, we explored how Native Americans often held themselves out as authorized to sell land when they had no clear authority to do so under Native American traditions.  To ameliorate those problems, Native Americans themselves asked colonial governments to only recognize tribal sovereign authorities as legitimate parties to land sales:

When individual Indians sold land, the rest of the tribe might not learn about the sale until long afterward. When a purchaser applied for a patent, it could be impossible for the government to know anything about the circumstances of the sale. If the sellers whose names were on the contract had no right to sell the land, or if they were drunk at the time, or if the contract was forged, such matters might be discovered by the government only long after the patent had been granted, when the Indians’ complaints finally reached the colonial capital. To ensure that land purchasing was conducted honestly, information had to travel quickly from the point of sale in two directions: to the tribe and to the colonial government. But communication over distance was slow and costly in the eighteenth century. Any reform would require eliminating the need for it. Three solutions were proposed in the 1750s. The gap between Indian sellers and the rest of the tribe could be eliminated by prohibiting private sales -- that is, by requiring sales to be made by tribes as a whole rather than individual Indians. The idea was first proposed by the Indians. Peter Wraxall reported in 1755 that “many years ago the Indians requested of our Governors, and indeed have earnestly repeated it to almost every Governor, that no Patents might be granted, but for Land sold at their general and public meetings.” A ban on private sales quickly attracted the support of the colonial officials with responsibility for relations with the Indians.

But when more care was given to treat Native American tribes as sovereign entities, that sovereignty could cost tribes dearly when they backed the losing side in wars involving the United States:

In the spring of 1783 the Continental Congress sent General Philip Schuyler to tell the Six Nations the Revolution was over. Schuyler knew the New York Indians well, after years of war against the tribes that had allied with Britain. In 1783 he was at the peak of his authority: he was simultaneously a member of the federal government’s Board of Indian Commissioners, a New York state senator, and the state’s surveyor general. If anyone was qualified to tell the Six Nations what the war’s end meant for them, and how the victorious Americans intended to treat the Indians, it was Philip Schuyler. Schuyler began with the good news. “The great spirit above has helped and given us success,” he related, “and with the assistance of France [we] have conquered the King of England.” But very quickly Schuyler’s message grew darker. “We are now Masters,” he told the assembled Indians, “and can dispose of the lands as we think proper or most convenient to ourselves.” Most of the tribes in North America had fought on the losing side, the side of Britain. For more than a century, most Anglo-Americans had disclaimed any right of conquest and had purchased Indian land rather than taking it by force, but not any longer. Now, explained Schuyler, Indian tribes would be considered as defeated enemies, and their land would be appropriated. “As we are the Conquerors,” Schuyler declared, “we claim the lands and property of all the white people as well as the Indians who have left and fought against us.” … In this respect the Indians were in the same position as their Anglo-American American allies. Land was also confiscated from Loyalists-colonists who had sided with Britain during the Revolution. During and immediately after the war, the Indians lost their property rights because they had picked the losing side of the Revolution, not because they were Indians. (Land was not confiscated from the few tribes that had sided with the colonists in the war.)

As Banner describes, Native American tribes who backed the losing side in the Revolutionary War became treated as sovereign entities, and the default position came to be (for just a few years) that the land occupied by Native Americans who sided with the losing side was no longer theirs at all, such that any land they were to occupy was subject to the consent of the victor:

The first of the forced treaties was signed at Fort Stanwix, New York, in 1784. After reminding the Six Nations that they had been defeated in war, and that the United States accordingly claimed their land by right of conquest, the American commissioners announced: “We shall now, therefore declare to you the condition, on which alone you can be received into the peace and protection of the United States. The conditions are these.” The commissioners then recited what became the text of the Treaty of Fort Stanwix. Section 2 of the treaty allowed the Oneidas and Tuscaroras, the two tribes that had sided with the colonists, to remain on their land. Section 3 asserted that the four tribes that had fought alongside the British -- the Senecas, Mohawks, Onondagas, and Cayugas -- had to give up much of western New York. The United States paid them no compensation. In the eyes of the American commissioners, the tribes who were compelled to cede land were lucky that the United States was so magnanimous in victory. “The King of Great Britain ceded to the United States the whole,” they insisted, and “by the right of conquest they might claim the whole. Yet they have taken but a small part, compared with their numbers and their wants.” The Treaty of Fort Stanwix marked a second important change as well. In previous transactions with the Indians, the document signed by the two sides had defined the boundaries of the area the Indians conveyed, just like deeds transferring land from one person to another. The Treaty of Fort Stanwix instead defined the boundaries of the land not conveyed. All else was ceded to the United States. This reversal was consistent with the American position that the Indians now retained no land other than what was given them by the grace of the government. The land reserved to the Indians was not termed a “reservation” in the treaty, but that is what it was.

But when the Constitution was ratified, American reverted to its previous position of recognizing that all Native Americans were the owners of their land:

By the time the first Congress of the new United States government convened in New York in 1789, equipped by the Constitution with the power to “regulate Commerce … with the Indian Tribes,” one aspect of that commerce was thus understood to involve purchasing land. The doctrine of conquest in effect from 1783 to 1786 had been abandoned. [Secretary of War Henry] Knox’s colleagues in Washington’s administration shared Knox’s view that the Indians owned their land. Everyone hoped that the sale of public land would become a source of substantial income for the treasury, but Treasury Secretary Alexander Hamilton included, in his 1790 Report on Vacant Lands, an admission that the lands concerned were not really vacant. “No Indian land shall be sold,” he insisted, “except such, in respect to which the titles of the Indian tribes shall have been previously extinguished.” … Some of the treaties of 1789 and after did, however, retain one element of the forced treaties of 1784-1786: they defined enclosed areas the Indians retained instead of areas the Indians conveyed. Such treaties included the Treaties of Fort Harmar, as well as the 1794 Treaty of Canandaigua, which referred to the land of the Oneidas, Onondagas, and Cayugas as “reservations.” Even under the new plan of compensation, the Indians were gradually being hemmed in by the land acquired by the United States.

In the next essay in this series, we’ll explore how the American emphasis on the agricultural improvement of land 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.