Stuart Banner - How the Indians Lost Their Land (2005)

Stuart Banner - How the Indians Lost Their Land: Law and Power on the Frontier (Harvard University Press, 2005).

ISBN: 9780674018716 | 352 pages | PDF


Between the early seventeenth century and the early twentieth, nearly all the land in the United States was transferred from American Indians to whites. This dramatic transformation has been understood in two very different ways—as a series of consensual transactions, but also as a process of violent conquest. Both views cannot be correct. How did Indians actually lose their land?

Stuart Banner provides the first comprehensive answer. He argues that neither simple coercion nor simple consent reflects the complicated legal history of land transfers. Instead, time, place, and the balance of power between Indians and settlers decided the outcome of land struggles. As whites’ power grew, they were able to establish the legal institutions and the rules by which land transactions would be made and enforced.

This story of America’s colonization remains a story of power, but a more complex kind of power than historians have acknowledged. It is a story in which military force was less important than the power to shape the legal framework within which land would be owned. As a result, white Americans—from eastern cities to the western frontiers—could believe they were buying land from the Indians the same way they bought land from one another. How the Indians Lost Their Land dramatically reveals how subtle changes in the law can determine the fate of a nation, and our understanding of the past.

About the Author: Stuart Banner is Norman Abrams Professor of Law at the University of California, Los Angeles.


Reviews

“Stuart Banner has written an intriguing account examining the dynamic and convoluted territorial, legal, political, and economic relationships among indigenous nations and colonial nations, particularly Great Britain, and its principal successor, the United States… Banner provides, especially in the first two-thirds of the book, a fresh perspective—utilizing a variety of high quality original and secondary materials—on one of the most crucial questions that has animated indigenous/nonindigenous relations since the arrival of Europeans: how and why did Native peoples lose ownership of ninety-eight percent of their lands to non-Natives? This powerful question has generally occupied the attention of many people inside and outside the academy, but very few have explored it to the depth that Banner has… This is a text that is quite striking, informative, and one that will be useful to a variety of audiences: historians, legal scholars, political scientists, and sociologists, among others… I hope it enjoys a wide readership as it deftly addresses important questions regarding land and sovereignty that continue to have great legal, property, and moral potency today.” — David E. Wilkins, American Historical Review

"[An] important new study… Despite the common belief that colonists simply took what they wanted by right of conquest, Banner shows that English colonial policy recognized Indians as legitimate owners of the land. That policy was continued by the American nation-state. If the colonies—or, later, the U.S. federal government—wanted Indian land, it had to be purchased or otherwise obtained by cession through legitimate treaty. This policy, Banner argues, developed not out of respect for Indians but out of concern for settlers. After all, it was far less expensive to purchase land than to expend the blood and treasure required to seize it. And deeds of sale or treaties of cession provided a much firmer legal foundation for a property system than did wars of conquest. Banner acknowledges that raw power was important. As settlers grew stronger in relation to Indians, he argues, fraud and violence became more widespread. Yet the legal formalities were preserved.” — John Mack Faragher, Bookforum