Remaking Custom: Law and Identity in the Early American Republic

5. Public Lands, Expansion, and the Native Americans

5 Public Lands, Expansion, and the Native Americans In a charge to the Grand Jury in 1783, South Carolina judge John F. Grimké celebrated the new nation’s victory and congratulated his audience on their new position as the envy of Europe. He encouraged them to “behold the honor you are held in by them . . . see how they press to your hospitable shores.” He charged his fellow citizens to “look forward to the immense Empire , the work of your hands, that you are creating.” Expansion and attention from other nations were, according to Judge Grimké, “the rewards” of Americans’ “Virtue and Bravery!”1 Empire was certainly on the minds of the victorious Americans. The new nation boasted endless potential for expansion on a continent that boundlessly stretched westward. Abundance of land and its ease of acquisition characterized and contributed mightily to the shaping of American identities from within and without. American and European alike recognized the potential for individual and national wealth that land brought.2 Land and its accompanying natural resources were the new nation ’s most valuable assets, and after the Revolution, the job of granting land fell to state and federal government officials. What began as a matter for individual colonial charters and grants grew from local to federal in scale as expansion issues and their obstacles became more complicated. Lawmakers encountered challenges such as turf wars between local and federal governments , carelessly made or unrecorded surveys, and corruption of officials who administered land sales. Many early national legal scholars watched the development of land law with great interest. For some, the concern was economic. For others, it was simply jurisprudential. For all, the distribution of territory—who lost the 142 | Remaking Custom land and why, who got the land and how they used it—was central to their explanations of American identities. Although legists could use English law as the foundation of their property law, the English had never before dealt with the volume of land that North America boasted. Therefore, even more so than in inheritance law, Americans had to rely on legal innovations to shape their laws governing the transfer of land. In their lectures on land ownership, legists constructed histories of the growth of the American colonies , the abundance of land, and the ease with which settlers could gain title to it, and they pointed to these distinctive elements of their societies as important components of the American character. At some point in their lectures regarding the transfer and acquisition of real property, however, legists had to reconcile their desire for empire and wealth with the presence of the “original lords of the soil,” Native Americans. No English precedent existed for such a situation. Indians’ insistence on retaining their ancestral lands meant that white Americans had to employ new legal and moral tactics to obtain more territory so that they could satiate settlers’ land hunger. Their justifications for displacing the first inhabitants of the land provide a glimpse into Anglo-Americans’ sense of entitlement to territory and empire. Americans of the late eighteenth and early nineteenth centuries looked upon their social, political, and cultural accomplishments as part of the natural course of human progress. They considered themselves more advanced than, hence superior to, Indians, who simply had not progressed as far culturally or socially. Some Americans compared Indians to their own primitive ancestors, believing that someday Native Americans would be as advanced as they. Therefore, it was fashionable in certain circles to exhibit optimism that Indians eventually could be “civilized” and thus assimilated into white society. In yet another example of the innovations possible in America’s experimental republican polities, leaders of these new, expansive societies could transform the Indians from primitive, simple savages into “civilized” human beings. The eyes of the world would be upon them as they effected this transformation and proved the virtues of their republics. Men like George Washington’s secretary of war Henry Knox, Thomas Jefferson, and other leaders were convinced that such a civilization program would work.3 But increasingly in the early nineteenth century, some legal scholars, like many Americans, began to voice the conviction that Indians were not capable of civilization and eventual assimilation into the Western world. Public Lands, Expansion, and the Native Americans | 143 Moreover, they became convinced that Native Americans’ rejection of whites’ philanthropic efforts to “improve” and civilize them would lead to their eventual destruction. They had to face...