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Reviewed by:
  • How the Indians Lost Their Land: Law and Power on the Frontier, and: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands, and: Sovereign Selves: American Indian Autobiography and the Law
  • Regna Darnell (bio)
How the Indians Lost Their Land: Law and Power on the Frontier. By Stuart Banner. (Cambridge, MA: Belknap Press of Harvard University, 2005. Pp. 344. Cloth, $29.95. Paper, $18.95.)
How the Discovery of America Dispossessed Indigenous Peoples of Their Lands. By Lindsay G. Robertson. (Oxford, UK: Oxford University Press, 2005. Pp. 239. Cloth, $29.95. Paper, $19.95.)
Sovereign Selves: American Indian Autobiography and the Law. By David J. Carlson. (Urbana, IL: University of Illinois Press, 2006. Pp. 217. Paper, $30.00.)

The three volumes juxtaposed here reflect a recent burgeoning interest in law and American Indians. The intersection between the two is far from self-evident and evokes contemporary national anxieties about "how" the present state of America's first peoples could have come into being. How appears in two of these titles and is implicit in the third, paraphrasable as "How did American Indians come to write autobiographies?" Despite the presumed good intentions of at least many on both sides of the cross-cultural encounter, Indian land and Indian self-determination were progressively eroded. The legal system perhaps offers contemporary sympathizers with Indian efforts to escape a colonial legacy a methodologically intelligible mode of access to the nature and meaning of the encounter between Native and European. The apparent stability of "the law" perhaps assuages the guilt of the invader.

Stuart Banner's overview of the frontier manipulation of law and increasing settler power to remove Indians from title to their traditional lands emphasizes that our inherited histories of Indian–white contact are inadequate, colored by rarely questioned stereotypes and equally questionable legal histories. Coercion and consent alternated by circumstance and local balance of power at different times. Neither Indians nor whites were a single homogeneous category. Banner is thus able to tell a nuanced story of particular encounters and their collective power over time.

Ownership of land, by settlers or Indians, is distinguished from claims to sovereignty over land (a much broader category involving competing European claims to the same land). Moreover, humanitarian concerns to protect Indian interests in law and social action have been consistent but [End Page 514] have taken different forms in different periods. At all periods, however, justifications for land grabs assumed the superiority of European civilization and ability to use land productively. The Proclamation of 1763 recognized Indian ownership of land, so that it could be purchased not by individuals, but by the Crown. Initially the land was deemed empty, with sufficient resources to meet all needs. Implicit evolutionary theory combined with English struggles to close in the commons in village lands at home to justify taking land for settler use in America.

Banner attempts to explore the Indian standpoint about land transfer and early treaties. He recognizes complex relations of power/coercion and voluntary sale oscillating by context and period. Indians exercised agency even when they had different understandings than the Americans. Fraud occurred on both sides, but not in all cases. Authority to sell, fairness of price, and increasing disparity of power between the parties occurred over time.

Colonial private contracts rapidly gave way to sovereign treaties. The thirteen states attempted to draw boundaries beyond which settlement was prohibited, but none could be enforced. After the American Revolution, however, Indians were understood as defeated nations whose lands were available by right of conquest, even though most had not been defeated.

The transition from ownership to occupancy came gradually, with the devaluation of land tenure held by nomadic peoples and public attention glossing over the number of tribes that were actually agricultural. Frontier land settlement rarely followed Eastern legalities, and speculators bought land before acquiring title to it. The states consistently ignored federal claims to sole jurisdiction over land transfer. Moreover, the new American Republic depended on land speculation and sales for financial stability.

By the time the occupancy theory of land use was applied to justify Indian removal in the early nineteenth century, there was an "erasure of virtually all...

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