How the Indians Lost Their Land: Law and Power on the Frontier.

How the Indians Lost Their Land: Law and Power on the Frontier. By Stuart Banner. (Cambridge, Mass., and London: Belknap Press of Harvard University Press, 2005. Pp. [viii], 344. $29.95, ISBN 0-674-01871-0.)

Stuart Banner, a professor of law at UCLA, narrates the history of land transfers from American Indians to English peoples from the seventeenth century to the present by insisting on the importance of law and a distinction between "the acquisition of property in land" and "the acquisition of sovereignty over territory" (p. 6).

In the seventeenth and eighteenth centuries, "the English normally acknowledged that Indian land had to be obtained by contract, not by force" (p. 12). Banner does not care whether the English were sincere. "There is no actual difference between respecting others' property rights and treating them as if one is respecting their property rights. That's what a property right is--the knowledge that one will be treated as a property owner" (p. 42). Fraud was rampant and sales of vast amounts of land did not enrich native peoples. But these problems, Banner implies, were inevitable. "Two societies converged in a marketplace, and the better organized took wealth from the poorly organized" (p. 74). This important "story of power" has less to do with conquest than with the triumph of the "English legal system" over "Indian legal systems" (p. 82).

The British Proclamation of 1763 was a major turning point because it replaced private sales with a system of treaties and "highly formalized transactions between units of government" that persisted under the United States (p. 105). Although many citizens of the new republic demanded the appropriation of land by right of conquest, the federal government reverted to the established British system of purchase. Whatever Indians thought, prominent American officials believed that they were acquiring land through treaties "structured as contracts" (p. 148). "They considered the Indians to be landowners" (p. 151).

Banner traces the disintegration of this attitude through close readings of critical decisions by the U.S. Supreme Court. In Fletcher v. Peck (1810) and Johnson v. M'Intosh (1823), Chief Justice John Marshall substituted the right of occupancy for the right of ownership. Nomadic and uncivilized hunters, native peoples were "tenants" without any permanent claim to the land on which they lived (p. 190). Even under this novel legal doctrine, however, the removal of Indians west of the Mississippi River was largely an accelerated, highly publicized variation on a well-established process. "Removal simply meant emigration" (p. 193).

In short, no matter what happened, Indian property rights remained alive in American law. If the reservation system created misery, it could not have existed, at least in principle, "without the Indians' consent" (p. 236). Indeed, "while the Army was slaughtering Indians and herding them into reservations, the Supreme Court was keeping alive an old legal tradition of recognizing the Indians' property rights" (p. 247). The General Allotment (or Dawes) Act of 1887, which promoted private ownership, and the Indian Reorganization Act of 1934, which encouraged tribal ownership, both upheld Indian property rights. Increased political power has recently allowed some Indians to regain land--or at least win compensation. But the foundation of their success is the law. Indians do not have to appeal to "abstract notions of justice" because they can show "that they were treated in ways that violated the law at the time--that a given transaction ... was illegal when it occurred" (p. 292).

Banner's effort to present a balanced history does not always succeed. There are few Indian voices in a narrative that unfolds almost exclusively within the minds of the English and Americans. Banner, moreover, assumes a timeless universality to the workings of the law and the marketplace. As important, he downplays the dramatic decline of Indian power during the second half of the eighteenth century. The Proclamation of 1763 was made possible by a British victory in the French and Indian War that transformed the balance of power in eastern North America. By the 1830s outnumbered and defeated American Indians were in no position to resist removal or, as Banner would have it, reject migration. Americans could afford the luxury of observing legal procedures because they operated from a superior military position.

It is true that one legacy of English-speaking peoples' eagerness to see themselves as anything but arbitrary conquerors was a rule of law that allows American Indians to obtain some small measure of justice. The danger lies in letting this important point obscure a larger story of systematic dispossession. By the early nineteenth century, native peoples had little choice but to consent to the hegemony of a legal system administered by their conquerors. Indians did not lose their land. Americans took it. And no amount of legal sophistry will undo that fact.

ANDREW CAYTON

Miami University, Oxford, Ohio