Original Indian Title

By Felix S. Cohen
Minnesota Law Review
Vol. 32, pp. 28-59 (1947)

II. How We Bought the United States(16)

Every American schoolboy is taught to believe that the lands of the United States were acquired by purchase or treaty from Britain, Spain, France, Mexico, and Russia, and that for all the continental lands so purchased we paid about 50 million dollars out of the Federal Treasury. Most of us believe this story as unquestioningly as we believe in electricity or corporations. We have seen little maps of the United States in our history books and big maps in our geography books showing the vast area that Napoleon sold us in 1803 for 15 million dollars and the various other cessions that make up the story of our national expansion. As for the original Indian owners of the continent, the common impression is that we took the land from them by force and proceeded <<34>> to lock them up in concentration camps called "reservations."

Notwithstanding this prevailing mythology, the historic fact is that practically all of the real estate acquired by the United States since 1776 was purchased not from Napoleon or any other emperor or czar but from its original Indian owners.(17) What we acquired from Napoleon in the Louisiana Purchase was not real estate, for practically all of the ceded territory that was not privately owned by Spanish and French settlers was still owned by the Indians, and the property rights of all the inhabitants were safeguarded by the terms of the treaty of cession.(18) What we did acquire from Napoleon was not the land, which was not his to sell, but simply the power to govern and to tax, the same sort of power that we gained with the acquisition of Puerto Rico or the Virgin Islands a century later.

It may help us to appreciate the distinction between a sale of land and the transfer of governmental power if we note that after paying Napoleon 15 million dollars for the cession of political authority over the Louisiana Territory we proceeded to pay the Indian tribes of the ceded territory more than twenty times this sum for such lands in their possession as they were willing to sell. And while Napoleon, when he took his 15 million dollars, was thoroughly and completely relieved of all connections with the territory, the Indian tribes were wise enough to reserve(19) from <<35>> their cessions sufficient land to bring them a current income that exceeds each year the amount of our payment to Napoleon. One of these reservations, that of the Osages, has thus far brought its Indian owners 280 million dollars in oil royalties. Some other Indian tribes, less warlike, or less lucky, than the Osages, fared badly in their real estate transactions with the Great White Father. But in its totality the account of our land transactions with the Indians is not small potatoes. While nobody has ever calculated the total sum paid by the United States to Indian tribes as consideration for more than two million square miles of land purchased from them, and any such calculation would have to take account of the conjectural value of a myriad of commodities, special services, and tax exemptions, which commonly took the place of cash, a conservative estimate would put the total price of Indian lands sold to the United States at a figure somewhat in excess of 800 million dollars.

In some cases payment for ceded land has been long delayed. Most of the State of California falls within an area which various Indian tribes of that region had undertaken to cede to the United States in a series of treaties executed in the 1850's. The treaties called for a substantial payment in lands, goods, and services. The Federal Government took the land but the Senate refused to ratify the treaties, which were held in secret archives for more than half a century. Eventually Congress authorized the Indians to sue in the Court of Claims for the compensation promised under the unratified treaties,(20) and that Court found that the Indians were entitled to receive $17,053,941.98, from which, however, various past expenditures by the Federal Government for the benefit of the California Indians had to be deducted. The net recovery amounted to $5,024,842.34.

The settlement of the California land claims closes a chapter in our national history. Today we can say that from the Atlantic to the Pacific our national public domain consists, with rare exceptions,(21) of lands that we have bought from the Indians. Here and there we have probably missed a tract, or paid the wrong Indians for land they did not own and neglected the rightful owners. But the keynote of our land policy has been recognition of <<36>> Indian property rights.(22) And this recognition of Indian property rights, far from hampering the development of our land, was of the greatest significance in such development. Where the Government <<37>> had to pay Indians for land it could not afford to give the land away to favored retainers who could, in turn, afford to hold the land in idleness. Because land which the Government had paid for had to be sold to settlers for cash or equivalent services, our West has escaped the fate of areas of South America, Canada, and Australia, which, after being filched from native owners, were turned over, at the same price, to court favorites, Government bureaus, or other absentee owners incapable of, or uninterested in, developing the potential riches of the land.

Granted that the Federal Government bought the country from the Indians, the question may still be raised whether the Indians received anything like a fair price for what they sold. The only fair answer to that question is that except in a very few cases where military duress was present the price paid for the land was one that satisfied the Indians. Whether the Indians should have been satisfied and what the land would be worth now if it had never been sold are questions that lead us to ethereal realms of speculation. The sale of Manhattan Island for $24 is commonly cited as a typical example of the white man's overreaching. But even if this were a typical example, which it is not, the matter of deciding whether a real estate deal was a fair bargain three hundred years after it took place is beset by many pitfalls. Hindsight is better than foresight, particularly in real estate deals. Whether the land the Dutch settlers bought would become a thriving metropolis or remain a wilderness, whether other Indian tribes or European powers would respect their title, and how long the land would remain in Dutch ownership were, in 1626, questions that were hid in the mists of the future. Many acres of land for which the United States later paid the Indians in the neighborhood of $1.25 an acre, less costs of surveying, still remain on the land books of the Federal Government, which has found no purchasers at that price and is now content to lease the lands for cattle grazing at a net return to the Federal Government of one or two cents per annum per acre.

Aside from the difference between hindsight and foresight, there is the question of the value of money that must be considered wherever we seek to appraise a 300-year-old transaction. There are many things other than Manhattan Island that might have been bought in 1626 for $24 that would be worth great fortunes today. Indeed if the Indians had put the $24 they received for Manhattan at interest at 6 per cent they could now, with the accrued interest, buy back Manhattan Island at current realty valuations <<38>>and still have four hundred million dollars or more left over. Besides which, they would have saved the billions of dollars that have been spent on streets, harbors, aqueducts, sewers, and other public improvements to bring the realty values of the island to their present level.

Again in appraising the value of $24 worth of goods in 1626 one must take account of the cost of delivery. How much did it cost in human life and labor to bring $24 worth of merchandise from Holland to Manhattan Island across an almost unknown ocean? What would $24 worth of food f.o.b. New York be worth to an exploring party at the South Pole today that needed it?

These are factors which should caution against hasty conclusions as to the inadequacy of payments for land sales made hundreds of years ago, even when such sales were made between white men. But in the earliest of our Indian land sales we must consider that representatives of two entirely different civilizations were bargaining with things that had very different values to the different parties. It is much as if a representative of another planet should offer to buy sea water or nitrogen or some other commodity of which we think we have a surplus and in exchange offer us pocket television sets or other products of a technology higher than our own. We would make our bargains regardless of how valuable nitrogen or sea water might be on another planet and without considering whether it cost two cents or a thousand dollars to make a television set in some part of the stellar universe that we could not reach. In these cases we would be concerned only with the comparative value to us of what we surrendered and what we obtained.

So it was with the Indians. What they secured in the way of knives, axes, kettles and woven cloth, not to mention rum and firearms,(23) represented produce of a superior technology with a use value that had no relation to value in a competitive market three thousand miles across the ocean. And what is probably more important, the Indians secured, in these first land transactions, something of greater value than even the unimagined products of European technology, namely, a recognition of the just principle that free purchase and sale was to be the basis of dealings between the native inhabitants of the land and the white immigrants.

Three years after the sale of Manhattan Island the principle <<39>> that Indian lands should be acquired only with the consent of the Indians was written into the laws of the Colony of New Netherlands:

Connecticut, New Jersey, and Rhode Island were quick to adopt similar laws and within a short time all of the colonies had adopted laws in the same vein. Only in Massachusetts and North Carolina were there significant departures from this just and honorable policy. In North Carolina generally anarchic conditions left individual settlers relatively free to deal with or dispose of Indians as they pleased, with the result that less than half of the State was actually purchased from the natives. In Massachusetts, although Plymouth Colony "adopted the just policy of purchasing from the natives the lands they desired to obtain" (Royce. op. cit. p. 601), Puritan Massachusetts, with much pious citation of Old Testament precedents, asserted the right to disregard Indian claims to unimproved and uncultivated lands. Despite this claim, the Puritans were prudent enough to purchase considerable areas of land from the native inhabitants.

In 1636 one of the most famous real estate transactions in American history took place when Chief Canonicus of the Narragansetts granted to Roger Williams and his 12 companions,

Here, as Williams observed to his companions,

Perhaps it was only natural that the first settlers, on these shores, who were for many decades outnumbered by the Indians and unable to defeat any of the more powerful Indian tribes in battle, should have adopted the prudent procedure of buying lands that the Indians were willing to sell instead of using the more direct methods of massacre and displacement that have commonly prevailed in other parts of the world. What is significant, however, <<40>> is that at the end of the 18th Century when our population east of the Mississippi was at least 20 times as great as the Indian population in the same region and when our army of Revolutionary veterans might have been used to break down Indian claims to land ownership and reduce the Indians to serfdom or landlessness, we took seriously our national proclamation that all men are created equal and undertook to respect the property rights which Indians had enjoyed and maintained under their rude tribal governments. Our national policy was firmly established in the first great act of our Congress, the Northwest Ordinance of July 13, 1787, which declared:

Here was a principle of government far higher than contemporary standards of private dealing. During much of this period pioneers were shooting Indians and denouncing the long arm of the Federal bureaucracy that tried to protect Indian lands from trespass and Indians from debauchery.(25) The most famous of all Indian cases(26) was one in which the Supreme Court of the United States denied the power of the State of Georgia to invade the territory of the Cherokees, guaranteed by Federal treaty, and the State of Georgia defied the mandate of the Court, whereupon the tough Indian fighter in the White House grimly declared: "John Marshall has made his decision; now let him enforce it."(27) But the Congress and the Federal Courts stood by the principle of respect for Indian possessions until it won common acceptance.

As far back in our national history as 1794 we find the United State agreeing to pay the Iroquois, for a cession of land, the sum of $4,500 annually forever, in

<<41>>

The payments are still being made, with much ceremony. In 1835 we find the Federal Government buying a tract of land from the Cherokees for 5 million dollars,(29) a very large part of the annual national budget in those days.(30) In 1904 the Turtle Mountain Chippewa, sold a large part of North Dakota to the United States for one million dollars.(31) To this day we are paying Indians for lands long ago conveyed. Only occasionally does this payment take the form of cash. Far-seeing Indian chiefs knew that cash would soon be dissipated and leave later generations helpless in an alien world that had no place for ancient skills of hunters. Regularly the old treaties called for payments in goods, chiefly agricultural implements and cattle, in services — above all medical services and education — and in such special privileges as exemption from certain land taxes, because of which the Federal Government must now furnish to Indians many services which States and counties refuse to provide. It was to furnish these services that the Indian Bureau was established, and to this day the appropriations to that Bureau go primarily to paying for these promised services. We have already spent at least one and a half billion dollars on our Indian population, and more than half of this sum is traceable to obligations based on land cessions.

This is not to say that our Indian record is without its dark pages. We have fallen at times from the high national standards we set ourselves.

The purchase of more than two million square miles of land from the Indian tribes represents what is probably the largest real estate transaction in the history of the world. It would be miraculous if, across a period of 150 years, negotiations for the purchase and sale of these lands could be carried on without misunderstandings and inequities. We have been human, not angelic, in our real-estate transactions. We have driven hard Yankee bargains when we could; we have often forgotten to make the payments that we promised, to respect the boundaries of lands that the Indians reserved for themselves, or to respect the privileges of tax exemption, or hunting and fishing, that were accorded to Indian tribes in exchange for the lands they granted us. But when Congress has been fairly apprised of any deviation from the plighted word of the United States, it has generally been willing to submit to <<42>> court decision the claims of any injured Indian tribe.(32) And it has been willing to make whatever restitution the facts supported for wrongs committed by blundering or unfaithful public servants. There is no nation on the face of the earth which has set for itself so high a standard of dealing with a native aboriginal people as the United States and no nation on earth that has been more self-critical in seeking to rectify its deviations from those high standards.

The 5 million dollar judgment won by the California Indians is only the most recent of a series of awards won by Indian tribes in the Federal Courts. In 1938 the Supreme Court awarded the Shoshone Tribe of Wyoming a judgment of $4,408,444.23, as compensation for the loss of a part of the Shoshone Reservation which Federal authorities illegally (i.e. without the consent of the Shoshone owners of the reservation) assigned to Indians of another tribe.(33) The same session of the Court affirmed a judgment in favor of the Klamath Indians for $5,313,347.32, the value of lands reserved by the Klamaths for their own use which the United States erroneously conveyed to the State of Oregon.(34) What is important about these cases is that they represent an honest, if sometimes belated, effort to make good on the promises that the Federal Government has made to Indian tribes in acquiring the land of this nation. And, as a great leader of the 30 million Indians who dwell south of our borders has said, what is great about democracy is not that it does not make mistakes, but that it is willing to correct the human mistakes it has made.(35)

III. The Doctrinal Origins of Indian Title.

The decisions on Indian title can hardly he understood unless it is recognized that dealings between the Federal Government and the Indian tribes have regularly been handled as part of our international relations. As in other phases of law which turn on international relations, common law concepts have become heavily overlaid with continental jurisprudence. Our concepts of Indian title derive only in part from common law feudal concepts. In the <<43>> main, they are to be traced to Spanish origins, and particularly to doctrines developed by Francisco de Vitoria, the real founder of modern international law.(36)

The argument that Indians stood in the way of civilization and that progress demanded that they be pushed from the lands they claimed, fell as lightly from the lips of 16th century pirates and conquistadores as it does from those of the 20th century. The contrary suggestion, first advanced by Vitoria, a university professor at Salamanca, that Indians were human beings and that their land titles were entitled to respect even when not graced by seals and ribbons, was denounced as "long haired idealism" by "practical minded" men in the 16th century, as it is today. But. in the long run, this idealistic and supposedly impractical concept of human rights helped to build the greatest state and the strongest economy in the world. The conquistadores and pirates of 16th century Spain and their lawyer spokesmen, in attempting to justify a wholesale seizure of Indian lands in the New World, urged that Indians were heretics, tainted with mortal sin, and irrational. To this argument Vitoria replied that even heretics and sinners were entitled to own property and could not be punished for their sins without trial, and that the Indians were at least as rational as some of the people of Spain. Vitoria cites as precedents, in support of Indian property rights, cases of heretics and sinners in Europe and in ancient Palestine whose rights were acknowledged by the highest Church authorities. Implicit in the argument is the doctrine that certain basic rights inhere in men as men not by reason of their race, creed, or color, but by reason of their humanity.

To the argument that the Pope had given Indian lands to the Kings of Spain and Portugal, Vitoria replied that the Pope had "no temporal power over Indian aborigines" (De Indis II, 6). Thus a division of the New World by the Pope could serve only as an allocation of zones for trading and proselytizing purposes, not as a distribution of land (De Indis III, 10).

The shibboleth of "title by discovery" Vitoria disposes of summarily. <<44>> Discovery gives title to lands not already possessed. But as the Indians "were true owners, both from the public and the private standpoint," the discovery of them by the Spaniards had no more effect on their property than the discovery of the Spaniards by the Indians had on Spanish property.(37)

The doctrine of Vitoria was given papal support in 1537 by the Bull Sublimis Deus, in which Pope Paul III proclaimed:

"We, who, though unworthy, exercise on earth the power of our Lord and who seek with all our might to bring those sheep of His flock who are outside, into the fold committed to our charge, consider, however, that the Indians are truly men and that they are not only capable of understanding the Catholic faith but, according to our information, they desire exceedingly to receive it. Desiring to provide ample remedy for these evils, we define and declare by these our letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, to which the same credit shall be given as to the originals, that, notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and of no effect."

Almost word for word, this declaration of human rights is re-echoed in the first important law of the United States on Indian relations, the Northwest Ordinance of 1787, adopted two years before the Federal Constitution.(38)

Vitoria's doctrine of respect for Indian possessions became the guiding principle of Spain's Laws of the Indies; the parallel promise of the Northwest Ordinance became the guiding principle of our Federal Indian law.(39) Conquistadores, pirates, and even administrative officials sworn to obey the law have not always adhered to this high principle. But if the principle of respect for Indian possessions has not been applied at 100 percent of its face value, it has been applied at least to the extent that $800,000,000.00 <<45>> or so of Federal funds has so far been appropriated for the purchase of Indian lands. To pay $800.000,000.00 for a principle is not a common occurrence in the world's history, but in the long run this impractical "long haired" expenditure has probably proved the wisest investment the United States ever made.

Fair dealing by the Federal Government cemented the loyalty of Indians to the United States, a loyalty which has been an important factor in every war we have fought, and as well in all our years of peace. Fair dealing by the Federal Government assuaged the outrages committed on Indians by their neighbors(40) and helped to preserve a people who, without Federal protection, might have succumbed to the rapacity of European civilization. Each year Indian contributions to our economy run to many times the amount we have paid the Indians for their lands, and the Indian contribution to our economy and our American way of life is far from being exhausted. Though we owe to the Indian many of our sports, recreations, highways, drugs, food habits, and political institutions,(41) and most of our agricultural staples,(42) we have still to acquire from the Indian many skills and intangible resources that would be lost forever if Indian cultures were forthwith destroyed, as many chauvinists advocate.(43)

It is against this historical background of fact and doctrine that the cases on Indian title must be viewed if they are to be understood. Only against such a background is it possible to distinguish between those cases that mark the norms and patterns of our national policy and those that illustrate the deviations and pathologies resulting from misunderstanding and corruption. It <<46>> is perhaps inevitable that any high ideal should prove too hard to live by in times of stress, but when a principle has survived the stresses of many wars, financial panics, and outbreaks of chauvinism, it becomes important to distinguish the basic principle from the "scattering" forces, just as it becomes important to distinguish in physics between the principle of gravitation and the deflecting forces of air friction, air pressure, terrestrial motion, etc., that make some bodies drop slantwise or rise instead of dropping. Indeed, it is only with some understanding of the norms of institutional conduct that one can determine whether the norms of the past are continuing to exert their influence, or whether the deviations of yesterday will be the norms of tomorrow.