February 8, 1887 – In the final act of a long tradition of taking Indian land under the guise of “helping,” Congress passed the Dawes Act, officially dissolving nearly all remaining tribes and dividing up tribal lands into individual plots.
The dispossession of Indian lands in what was to become the Continental US did not happen in linear fashion. Instead, the legal, social and ethical justifications for the policies which led to such massive dispossession, as well as the practical means that it occurred, had a long, twisted history, beginning with the first European explorers to set foot in the New World.
Two questions immediately presented itself to those first Europeans concerning the land and the millions of native peoples who lived there. First was the question of sovereignty – the right to rule over the land. To all Europeans in the Age of Exploration, the answer to that question was simple: Christian Kings of nations with written laws had the right to claim sovereignty over any lands ”discovered” by their explorers. This “Right of Discovery” was accepted by all European nations (although they argued over the extent of each other’s “discoveries”).
The second question was more troublesome: who “owned” the actual land that had been “discovered?” In other words – setting aside the right of the King to rule over all of the peoples in that “discovered” land – who had actual title to the land itself? And, as a corollary, if the land was owned by the native peoples already residing on it, then how could it legally be taken from them? The different ways in which these related points were addressed would all contribute to the acceleration of native land loss.
From the very start of the Virginia colony in 1607 and the Plymouth colony in 1621, English colonists, philosophers, politicians and lawyers struggled over the question of land ownership in the New World (to the resident natives, of course, there was no question over who’s land it was; English and American military might, however, would make their opinions on the subject moot). Some early theorists claimed that Indian land could simply be taken without compensation, arguing that the natives were simply wandering nomads with no permanent connection to the land and therefore had no right to own it.
The reality on the ground, however, quickly forced abandonment of these theories. Not only did eastern Native Americans have clear boundaries of tribal land and practice extensive farming, they also (early on, at least) outnumbered English colonists and were willing to fight encroachment on their land. Moreover, English law had a long tradition of using written deeds to prove land ownership against a rival claim, and one colonist’s possession of a land deed from a property’s original Indian “owner” would provide incontrovertible proof of ownership against any rival claim from another colonist.
Very early in the colonial period, therefore, it became common practice to purchase land from Indians in order to obtain a legal land deed to the property. In 1622, for instance, the Wampanoag sachem (chief) Massasoit formally ceded Plymouth (the abandoned Wampanoag village of Pawtuxet) to the Pilgrims. As this practice became universal in the colonies, it became a legal reality that the Indians were the owners of their land, including their vast tribal hunting grounds. After all, only a legal owner could sell land and provide a legally valid deed. For colonists to possession legal title to their land, it was necessary to make the Indians selling it legal owners as well. This meant that early colonists all traced to their land title back to its original Indian owners.
The “purchase” of land, of course, was not as clean as the term implies. To be sure, much land in the early colonial period was fairly bought. Tribes had abundant land that colonists wanted, Europeans had manufactured goods that Indians wanted, and trading one for the other was natural. On the other hand, colonists often acquired Indian land in other, more fraudulent ways. Still, the underlying assumption was that the Indians had legal, enforceable title to their land, and it could only be acquired from them in a recognized legal manner.
The first change in this underlying theory came in 1763. Following Pontiac’s War, the British government looked for a way to prevent colonist/Indian conflict over land in the newly acquired (for sovereignty purposes) Ohio Valley. King George III’s Proclamation of 1763 ended the practice of individual colonists purchasing land directly from Indians (legally, at least). Instead, from that point forward, only colonial government officials could legally purchase Indian lands. This marked the end of the period of individuals acquiring deeds directly from Indians and the beginning of the period of government treaties with Indians for purchasing land.
It also marked a subtle change in colonial recognition of Indian title to their land. Under English law, free ownership of land gave the owner the right to sell it to whomever he wished. Under the Proclamation of 1763, however, the law – in theory, at least – purported to tell the Indians to whom they could sell their land and to whom they couldn’t. In effect, colonial law made Indian title to their land less complete than colonist’s title to theirs. A subtle change, but a change nonetheless.
Even so, the reality on the ground belied official pronouncements from across the ocean. The restrictions were frequently ignored, and individuals and speculators continued to purchase Indian land west of the boundary line in the hopes that eventually government policy would change in to their purchases would be legally approved after the fact. Similarly, Indians sold their land despite the ban because they were not willing to allow England to tell them what they could and couldn’t do with their land.
This change, however, would survive the Revolutionary War and become American policy as well. During the War itself, when the individual states abandoned their colonial charters and turned to self-government, the states continued to practice of restricting the sale of Indian land to individuals and mandating that land could only be purchased by state governments.
The new United States Constitution codified this government monopoly on the purchase of Indian land by giving the new federal government the exclusive right to deal with Indian tribes and purchase Indian land. In the early years of the United States, Congress began aggressively purchasing Indian land through sales treaties. This practice had two effects on American legal thinking about Indian land ownership. First, it acknowledged that the Indians were the owners of their land, and that the government needed to purchase it before it could be taken. Secondly, it gave the various Indian tribes a recognition of sovereignty; by purchasing Indian land through negotiated treaties which needed to be ratified by the US Senate, it effectively elevated the tribes to the status of other nations. Treaties, after all, were negotiated with sovereign countries
Neither of this beliefs would last long, however. In the early 19th century, as Indian land continued to be sold at an accelerated rate and Indian societies continued to vanish from the eastern seaboard, old myths about Indian land use creeped back into the American legal system. Once again, the old fiction that Indians did not farm or settle but only wandered the land as nomads, without any permanent connection to any particular place and so had no ownership right to the land, began to find voice among white jurists.
These myths would become law in the 1823 Supreme Court decision in Johnson v. Macintosh. In that case, Chief Justice Marshall ruled that Indians did not own their land in the traditional, legal sense. Instead, they only had a lesser right to occupy the land. Legally, according to the Supreme Court, the true owner of the land was the US government. This new legal framework would dictate all future government actions against the Indians vis-à-vis their land.
In the 1830’s the federal government accelerated its practice of using land purchase treaties to extinguish all Indian land rights east of the Mississippi. The Supreme Court, in the 1832 case of Worcester versus Georgia, reiterated its ruling that only the federal government could take Indian land (that case involved the State of Georgia taking land from the Cherokee, an action which the Supreme Court ruled illegal). It also confirmed its legal theory that Indians did not “own” the land that they had lived on for millennia – rather, they simply had a lesser right to “occupy” it, a right which could be taken away by the US government.
When Congress passed the Indian Removal Act in 1830, which gave the authority to the president to negotiate treaties with the remaining Indian tribes east of the Mississippi to exchange their native eastern homelands for new land in the West, it merely codified a practice that already existed: the President had the power to negotiate land sale treaties with Indian tribes. The result of the Act, which appropriated money to fund those treaties, was the extinction of all Indian tribes (except for some Seminole bands in Florida) east of the Mississippi by 1840. This included the Cherokee, who lost all of their traditional tribal land in 1838 under the Treaty of New Echota – a treaty signed by a minor chief, rejected by 90% of the tribe, and enforced by US soldiers who physically evicted the Cherokee from their homes at bayonet-point, rounded them up, and forced marched them to Oklahoma.
As US government control expanded westward during and immediately after the Civil War period, its land acquisition policy changed to one of forcing tribes to sign treaties ceding most of their land to the federal government and “agreeing” to live on reservations – that is, a small parcel of land “reserved” for them on what was once their vast homeland or on other government lands far, far away. During this period the Sioux, Cheyenne, Arapaho, Nez Perce, and dozens upon dozens of other once great western Indian nations were forced, one by one, to sign treaties giving up their ancestral homelands and move to small, desolate reservations which they were not permitted to leave. If they did, US cavalry were sent to forcibly return them – or kill them if they refused.
Even these treaties, however, which promised payments in perpetuity and Indian possession of their reservation lands, were soon abrogated by the federal government. As Indian nations were becoming increasingly outnumbered and powerless in the face of white expansion, a new philosophy concerning Indian nations emerged in the halls of power. Indian nations were not “nations” at all, the thinking went, and so there was no need to negotiate treaties with tribes to take their land. Since treaties needed approval of the Senate, the use of simple land sale contracts – “treaty substitutes” – avoided this formality. Making matters worse, the Supreme Court ruled that Congress had right to unilaterally abrogate treaties, which meant that payments for land already purchased ceased to be made, and reservation land was no longer inviolable.
Enter the final step in the legal evisceration of Indian independence and title to tribal land: the Dawes Act. By the end of the 1880’s, most white policymakers believed that in order to “civilize” the Indians the entire tribal system needed to be extinguished. In its place, Indians would need to adopt Euro-American ways, leaving their traditional identities behind.
The Dawes Act ended the reservation system (except for the tribes in Oklahoma), carving up reservations into 160 acre individual plots handed out to each Indian family. These Indians became US citizens and residents of the states in which their individual plots existed. The remaining tribal land left over – millions of acres – was made available to white settlers and railroads. As time passed, more and more of these original family allotments were sold – to white purchasers.
While the Dawes Act was repealed in 1934, the damage had been done; Indians owned less than 1/3 of the land they had in 1887. With the repeal of the Dawes Act all of that soled land remained in the hands of whites. What little land had never been allotted by the government, and had been held in trust, was returned back to the tribes.