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Indigenous Ownership and the Emergence of U.S.

Liberal Imperialism
Maureen Konkle
The American Indian Quarterly, Volume 32, Number 3, Summer 2008, pp. 297-323 (Article)
Published by University of Nebraska Press DOI: 10.1353/aiq.0.0010

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http://muse.jhu.edu/journals/aiq/summary/v032/32.3.konkle.html

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Indigenous Ownership and the Emergence of U.S. Liberal Imperialism
maureen konkle

“Westward the Star of Empire takes its way,” and whenever that Empire is held by the white man, nothing is safe or unmolested or enduring against his avidity for gain.
Maris Bryant Pierce, Address on the Present Conditions and Prospects of the Aboriginal Inhabitants of North America, with Particular Reference to the Seneca Nation (1839)

Writers on U.S. imperialism have been trying to establish not only what it is but why it’s so peculiar—or how it is like but unlike other modern European imperialisms.1 The continent is one obvious thing that makes it different, but, more specifically, it’s how the conflict with the indigenous people who were and are on the continent produced a certain kind of imperialism and imperial ideology that makes it different. That imperial ideology is peculiarly abstract. Scholars have remarked upon the powerful—and frustrating, for analysis—abstractions of U.S. imperialism. Or, as historian William Appleman Williams put it, in the United States empire is absent from explicit recognition but permeates U.S. society as a “way of life.”2 The idea of empire itself is completely naturalized (thus the way of life) but also utterly depoliticized (thus the difficulty of recognizing it as a historical process comparable to others). By the 1830s the nation itself was understood as the site of an abstract world-historical conflict between savagery and civilization, a conflict in which civilization must and would prevail because God willed it and the continent required it. As the result of the inevitable forces of human history, imperial violence was not under anyone’s con-

The conflict with indigenous people produced an imperial ideology that required a significant degree of abstraction because of the nature of relations with indigenous people. 298 american indian quarterly/summer 2008/vol. told that story over and over again. establish boundaries. After the formation of the United States that recognition. historically and in the present. 32. became a signifier of U. In North America Europeans set out to claim land they didn’t know that was occupied by people they couldn’t control. and traditions from indigenous people to produce an abstraction that demonstrated that they didn’t and couldn’t own land and form legitimate governments. real and imagined. recognition became a problem for expansionists.S.and early-nineteenth-century India. it stripped away history. When indigenous nations resisted selling land. political life. To make alliances. The figure of the Indian was the linchpin of the imagined conflict between savagery and civilization. the primary claim of which was that imperialism didn’t exist as a historical process but was rather the unfolding of God’s will.S. moral and political superiority.trol and not anyone’s fault. that recognized indigenous ownership of land and therefore of political autonomy. culture has a political context—the necessity of denying the principle of indigenous ownership— and a political effect—the positing of an imperial ideology.S. as savage hunters. if only the colonized would cooperate and be properly raised up. and is at present a term political neoconservatives endorse as a positive description of hypothetical U. geography. The relations between indigenous people and the United States. 3 . particularly in late-eighteenth. In literary and historical scholarship the term “liberal imperialism” usually describes British imperial history. including treaties. by definition couldn’t own property and therefore didn’t form governments. who then needed to neutralize indigenous ownership but in such a way that it could be reconciled with the dominant political ideology. The figure wasn’t just a product of blind racial prejudice or ethnocentric cultural misunderstanding. and acquire land they made legal agreements. To do this they turned to an emerging narrative of a world-historical conflict between civilization and savagery in the United States itself in which indigenous people. no. embodying that imperialist narrative. Every dead Indian. well established in North American legal and political practice. are the relations of liberal imperialism— that imperialism that presents itself as benevolent and civilizing. The purpose of this essay is to show that the construct of “savagism and civilization” in U.

I’m not taking issue in this essay with the substance of much of the scholarship on the representation of Indians. if they did want it.S. citizenship. The important aspects of this narrative are EuroAmericans’ regrettable ethnocentrism—they couldn’t help themselves— and their sincerity. or the history of relations with indigenous people but rather with a prevailing assumption of the moral rectitude of the political “inclusion” of indigenous people as U. after which (they promised) Indians could become citizens. The current dominant version of the history of Indians in the United States narrates as something like this: Europeans ethnocentrically did not believe that Indians used their land properly and therefore felt justified in taking it. citizens and a relative lack of interest in indigenous political struggles for autonomy. Georgia. the idea of savagism and civilization. what they meant to do with it are rarely addressed. The proof of their meaning well is the fact of indigenous citizenship in the United States. British intellectuals and government officials believed imperial power in India to be “simply the instrument required to align a deviant and recalcitrant history with the appropriate future. but they sincerely wanted to help Indians become civilized. as its “evangelistic” reforming of the colonized. (What indigenous people thought of U. in the United States. Even when they were bad.5 Furthermore. individual rights.” historian Uday Singh Mehta writes.” or. in the United States the claims of civilizing Indians. the equivalent concept was “pupilage. not of benevolence. and.global hegemony.S. via Supreme Court Chief Justice John Marshall in Cherokee Nation v. Mehta points out.) If past Konkle: Indigenous Ownership 299 . for the most part they meant well. whether or not they wanted it [usually not]. Citizenship was a product of imperialism.3 Historically. of offering them citizenship. goes on forever. theoretically) property.4 This required a paternalistic authority over the colonized and programs of education and reform focused on a hypothetical future in which the colonized would be brought up to speed civilizationally. The trick of liberal imperialism is that it promises freedom and delivers subordination. were a principal means of divesting indigenous people of land and political autonomy as well as of justifying the imperial relationship itself. In British India colonial subjects were considered to be in a state of “tutelage”. and citizenship. historically and in the present day. liberal imperialism figured the colonized as backward children who had to be properly educated to enjoy (eventually. the idea of the Indian as ward of a benevolent Great Father. more broadly.

3 . for progress to occur. the recognition of indigenous ownership became a means for political elites to establish U. 32. they invoked their diverse traditions but also colonial history. Then. body politic can be represented as a moral victory for the United States. In his recent book How the Indians Lost Their Land: Law and Power on the Frontier (2005). imperialism. in attempting to evade indigenous ownership and get more land more easily. and when they made this point to Euro-Americans in the late eighteenth century. no.S. legal historian Stuart Banner maintains that seventeenth-century English settlers. If they appear. I hope for further discussion. im per ial i s m Indigenous people owned their land and meant to keep it. at present.s .S.S. problems in e ar ly u. at least enough of it. academic and otherwise.S. This is also a product of an imperial ideology that conceives of its own history as world history and construes its own violence as unfortunate but inevitable. expansionists were driving the political and cultural redefinition of indigenous people and their relationship to land. in the early years of the United States.actions of the United States and its (nonindigenous) citizens must be condemned. and it’s entirely a product of nineteenth-century liberal imperialism. writers invoke tragedy and move on.6 In much of the recent work discussing the history of U. In contrast. albeit belatedly. imperialism and imperial ideology. moral and political superiority. the implication is that. they are often treated as a done deal. This might be called the liberal consensus on Indians. citizenship and cultural recognition and appreciation have resolved the principal problems of U. a moot point. an instance of the nation living up to its professed values.S. The problem was that the political elite couldn’t readily jettison indigenous ownership when it was associated with the new state’s exceptionalist claims. distinguishing it from British tyranny and indeed the practices of any other nation in the world. That they owned their land outright was a widely recognized and even basic principle in colonial North America. and indeed required. I want to sketch that point out here. who found “preexisting [systems] 300 american indian quarterly/summer 2008/vol. The “inclusion” of indigenous people in the U. indigenous people barely register. colonization. The erasure of indigenous ownership and therefore of indigenous political society as such is the foundation of U.

in relation to other European nations. faced a variety of restrictions on what they could do with their land. policy was to recognize the autonomy of indigenous people. mainly in relation to the issue of preemption rights. Colonial governments regulated land purchases through licenses. “did not cause the English to think of Indian land title as a lesser form of ownership than English title. It did not confer ownership or title but was rather something like a declaration of interest that European nations mutually recognized among themselves.)8 After an initial effort in the immediate postrevolutionary period to assert that the British surrender transferred title to indigenous land to the United States. returning to British colonial policy.9 During the Revolution and especially afterward. U. But as Euro-Americans clamored for more land. English settlers recognized indigenous ownership not from altruistic or egalitarian motivations but for practical reasons having to do with the instability of land policies and ongoing power struggles. established Konkle: Indigenous Ownership 301 .S. States began selling preemption rights to land speculators. which were relatively easy to acquire. preemption rights began to be redefined. to buy land from indigenous people in that territory.of property rights everywhere they went” in North America. . establishing the Crown as the sole authority for treating with Indian nations. relied in their relations with indigenous people on existing natural law theory. purchase their land only with their consent. but this formality. which held that occupancy determined property in land. in 1790 Congress passed the first of the Indian trade and intercourse acts. the principle of indigenous ownership began to be eroded. .”7 The Royal Proclamation of 1763 recognized indigenous ownership.” since “all landowners . At that moment Indians weren’t necessarily doomed to disappear. which meant that the purchaser had the first opportunity to buy the land when the government secured the title to the land from indigenous people. it outlawed land speculation and set a boundary between the colonies and the Indian nations of the West. and make efforts to “civilize” them so that they might someday become incorporated into the United States. In the face of this transformation of preemption. Europeans understood the right of preemption to mean that only the European nation claiming interest in a particular territory had the right. Previous to the Revolution. which. and therefore indigenous land had to be purchased. This practice persisted through the late eighteenth century. Banner writes. (The proclamation remains an important factor in Canadian-Aboriginal relations.

no. For example. and the Indians’ present right of possession as a kind of tenancy that would last as long as the Indians remained on the land. To dispossess them on any other principle. furthermore. and of that distributive justice which is the glory of a nation. he continued. given the state of U. or by the right of conquest in case of a just war. Secretary of War Henry Knox’s 1789 report to Congress—the first session of the first Congress—is often pointed to as a succinct account of early U.the federal government as the sole authority for purchasing land from indigenous people. Clark (the Marshall involved was John Marshall’s father). finances and the desirability of keeping peace on the frontier. One of the earliest cases brought was Marshall v.S.12 That the United States would or could remove the Indians by force.” was contradicted by its own actions. It cannot be taken from them unless by their free consent. Despite the federal government’s continued emphasis on indigenous ownership.. Indian policy. Knox argued. 32. within the limits of the United States. was unlikely. inside government recognition of ownership was necessary for both strategic and ideological reasons.S.10 The effect of these cases was to normalize and even expand this postrevolutionary redefinition of preemption rights. in which the court held that the state legislature could grant preemption rights to indigenous land but that the grantee took the risk upon himself as to what would happen to the land in the future (i.S. Indigenous people rejected the idea.e. from the representations of the confeder302 american indian quarterly/summer 2008/vol. he wrote: The Indians being the prior occupants. that this had always been the case. courts in Tennessee and Pennsylvania later found the same. In a review of relations with indigenous nations on U. “it is manifest. Indeed. borders. who owned their land outright. Congress’s initial belief that Britain’s surrender gave it “the fee of all the Indians lands. 3 .” and. lawyers and land speculators “began to think of the preemption right as the fee simple title. whether indigenous people would sell or not). Knox pointed out. possess the right of the soil.11 If the principle of indigenous ownership continued to be eroded outside of government. would be a gross violation of the fundamental laws of nature. Those who had already secured preemption rights then sought to preserve their claims legally. and then Congress was forced to accommodate them.

both written in 1803. and justice. Ownership was the problem.”14 This was not entirely magnanimous: at that moment. . Knox wrote that while states had authority for the disposition of land within their boundaries. He assumed that.” Not only would it be more expensive. and attaching them to the United States” than “a system of coercion and oppression. The difficulties that this conflict between politics and ideology presented to Euro-Americans can be seen in two well-known “private letters” from Jefferson to two of his Indian agents. together with that respect every nation sacredly owes its own reputation. only the federal government could have authority for relations with indigenous nations. . beyond all pecuniary calculation. He positioned the United States as benevolent reformer and indigenous people as in need of civilizing. that they entertained a different opinion.” Knox placed heavy emphasis on U. Knox outlined a policy of nascent liberal imperialism—nascent in the sense that the United States didn’t yet have overwhelming control of relations with indigenous nations. including not sell. and cheaper. means of “managing . . and they “ought to be considered as foreign nations. indigenous people would surely cooperate.”13 Knox argued that a conciliatory system of making treaties with indigenous people would be a much better.” a position to which the United States acceded when it appropriated money to buy the land in question. in his opinion) and observing that “the obligations of policy. officials made a virtue out of necessity.S. the Indians. Knox and U.S.ated Indians at the Huron Village. Historians have agreed that he was bent on continental expansion with an apparent Konkle: Indigenous Ownership 303 . humanity. and that they were the only rightful proprietors of the soil. although his keenness for expansion put a great deal of pressure on the idea. incorporating recognition of indigenous ownership into their exceptionalist understanding of the United States. unite in requiring a noble. it meant that indigenous people were still free to do what they wanted. . 1786. Jefferson insisted on indigenous ownership. but “the blood and injustice” of it “would stain the character of the nation . political system being obvious. however. in December. “character” or legitimacy.S. the United States didn’t have much choice but to recognize indigenous ownership. the superiority of the U. liberal. and disinterested administration of Indian affairs. contrasting the United States with Britain (which didn’t have much character.

in a passage in which Jefferson insisted that land had been purchased from Virginia Indians “in the most unexceptionable form. I feel it consistent to pure morality to lead them towards it. were it even hinted to them. C. perhaps probable. coercion. Wallace points out that in the manuscript of Notes on the State of Virginia (1787).”18 Jefferson told his agent in the south. citizenship for indigenous people was his ultimate objective: “Incorporating themselves with us as citizens of the U. and then crossed out. “because we observe that when . by new acquisitions of land. Missionaries and U.’”17 In 1803 Jefferson famously advised William Henry Harrison. no.” after the word “purchased” Jefferson “added. Theoretically. . that was the point..16 This was longstanding practice about which Jefferson was certainly conscious.S. 3 . Benjamin Hawkins. his agent in Indiana Territory. you will keep it for your own reflection. Anthony F. and it will be better to promote than retard it.. failing that. convinced of its soundness.15 While they tend to cling to the idea that Jefferson’s professed benevolence toward indigenous people.S.-run trading houses. Of course. and gave each other advice on the topic.S. couched in that benevolence. that this idea may be so novel as that it might shock the Indians. however: It is possible. though paternalistic.S. that characterized relations with indigenous people during his presidency but also in the early national period generally. that U. debts get beyond what individuals can pay.20 Citizenship required ceding land. . historians have clearly established the manipulation. the United States would legally acquire indigenous land with minimal trouble if Indians would volunteer to be citizens or. and for us to procure gratifications to our citizens. tried different strategies. this is what the natural progress of things will of course bring on. the qualification: ‘It is true that these purchases were sometimes made with the price in one hand and the sword in the other. to entrap indigenous people in debt to U. and aggression. was sincere. 32. they become willing to lop them off by a cession of lands. officials were quite conscious of the ways in which they could break down indigenous polities in order to coerce indigenous people into selling land—they thought about it.S.”19 He advised Hawkins to keep quiet about this. but. from time to time.ruthlessness that seems difficult to reconcile with his political idealism. to familiarize them to the idea that it is for their interest to cede lands at times to the U. could 304 american indian quarterly/summer 2008/vol.

and professions of benevolence and sympathy primarily reinforced the point of Euro-Americans’ moral superiority and legitimacy. The apparent conflict between Jefferson’s benevolence on the one hand and ruthlessness on the other has sometimes caused historians to reach for psychological explanations for his policies as well as his behavior. and the imperial control of land could be reconciled without difficulty to the U. was to insist on how very much he loved his Indian brothers and wanted them to become one with the United States—while undermining them politically every chance he could get. couldn’t claim possession of land over which they merely roamed— and. propert y a nd s avage s By the early nineteenth century. always had been hunters was common. Liberal imperialism didn’t become coherent until the problem of indigenous ownership was successfully cleared away. in the previously cited letter to Harrison. Jefferson’s problem was that he couldn’t quite yet disengage recognition of indigenous ownership from the idea of that moral superiority. Indigenous resistance ruined this orderly vision. were rather more like a measure of his frustration.S. the idea that indigenous people were exclusively hunters—who therefore. He attributes the Konkle: Indigenous Ownership 305 . the emergence of which Roy Harvey Pearce marks in the 1770s. according to European law. “character” that so concerned Knox. in practice. In the face of this resistance. Paternalism was the mode of liberal imperialism. with the formation of the United States.” reinforced the moral superiority and legitimacy of the United States and its officials while justifying coercion. in the society generally and in the political system in particular. “pure humanity.22 The idea of the Indian as exclusively a hunter was part of a larger narrative of savagism and civilization.somehow be coerced into it. His effusions of benevolence for Indians. Jefferson’s appeal to the abstract realm of “pure morality” or. moreover. as if relations with indigenous people were only a matter of individual feeling and the point is to determine who was genuine and who was not.21 It’s also characteristic of much of the commentary on Jefferson and other figures considered “sympathetic” to Indians for scholars to ponder the sincerity of their benevolence. the only thing he could do. sincere or not. Forced to hang on to the principle of indigenous ownership and faced with indigenous resistance to selling.

no. While U. amassing a substantial collection of books on the topics of America and colonization and regularly questioning English settlers about their experiences.26 In working out his theory of property Locke implicitly and explicitly used 306 american indian quarterly/summer 2008/vol. 32.23 If Enlightenment history posited progress through the stages of human society from savagery to the culmination of European mercantile civilization. famously. however. including in historiography. while Enlightenment history provided the frame for a narrative in which the defeat of the past by the future must occur. the theory of property that defined indigenous people as incapable of owning land and the grand narrative of savagery and civilization that contained it provided the means of redefining indigenous people as hunter-savages with no claim to ownership of land. its incorporation of the agriculturalist theory of property provided the means of denying the principle of indigenous ownership. This theory is set out by John Locke in his Second Treatise of Government (1690). abstract narrative of civilization’s conflict with and conquest of savagery in the United States in part to the influence of Scottish Enlightenment historiography. historians widely acknowledge the agriculturalist theory of property in discussions of North American colonization. but it did gain authority over that time and permeated discussion about indigenous people by the end of the century. Further.25 Locke was.24 Scholars in political philosophy and British colonial history have discussed that context at length. the Euro-American version of that history read the existence of indigenous people in North America as a kind of usurping of that order that had to be righted.S. secretary to Lord Shaftesbury and the lords proprietor of Carolina colony and wrote the Fundamental Constitutions of Carolina in 1669. 3 .rise of this grand. in which he defined indigenous North Americans as the exemplar of the savage in the state of nature. where property and government by definition didn’t exist. By the early nineteenth century. which provided the four stages theory of human history. where the beginning and the end of human society were locked in a battle for the future. He had a fairly extensive knowledge of the colonies and their operation. This theory didn’t affect North American practices in the eighteenth century. such that what historian David Armitage calls the “‘colonial’ reading of Locke’s political theory” is well established. He also wrote extensively on the theory and administration of the American colonies. they haven’t had much to say about the theory’s colonial North American history.

and Industry inlarged their Stocks.. second.28 His theory depended on the erasure of indigenous ownership and political society in the first instance.” Locke maintained.” Labor. “he that leaves as much as another can make use of. where indigenous people served as the embodiment of man in the state of nature. and as good left in common for others. despite the fact that. James Tully points out that Locke had to insist that indigenous people/natural men would not be adversely affected by the taking of their supposedly vacant land. and natural law held that he could take as long as “there is enough. government. He then introduced “the wild Indian” as the inhabitant of the state of nature. how Men might come to have a property in several parts of that which God gave to Mankind in common. which led to written laws and. because “there was still enough.” Those who protested such an arrangement were disputing God’s will. because if they were affected.” Indeed. and built Cities. “as [fruits and beasts] are produced by the spontaneous hand of Nature. but specifically commercial agriculture.” a phrase that would be associated forever afterward with indigenous people in North America. In chapter 5 of the Second Treatise Locke’s professed object was to justify taking land without the consent of those who were on it: “I shall endeavour to shew. improve it for the benefit of Life. because “it was useless as well to carve himself too much. because God “commanded [man] to subdue the Earth. or take more than he needed. established property in land.29 “As Families increased. “They incorporated. does as good as take nothing at all. as Tully notes. and that without any express Compact of all the Commoners. ultimately. nor for Incroachment on the Right of others. There was “no room for Controversie about the Title. With regard to the “good enough” qualification.”27 The quarrelling and disputation Locke invoked draws one back to the historical context. by consent. and as good left. he would have been well aware that indigenous people formed political societies. they came in time. first. to set out the bounds of their distinct Konkle: Indigenous Ownership 307 .a North American colonial setting. settled themselves together. where the products of nature were the common possession of all. he would have had to find some means of incorporating their consent into his theory. Natural man had a property in whatever he could take from the spontaneous hand of nature in order to subsist. i.” he wrote in the opening paragraph.e. The consent of the commoners for enclosure of commonly held land in the state of nature was not required.” and. their Possessions inlarged with the need of them. and then.” Locke wrote.

Mehta points out that the notion of the consent of the governed—a government founded on “rational.” an idea that was a distinct departure from prevailing ideas about land in Europe. Confronted with indigenous people whose control of land and rules and practices. including Indians. Robertson wrote. During the eighteenth century the agriculturalist theory of property circulated through Locke’s interpreters. everyone. imagining a state in which they had no political organization and made no demands and had no claims must have been quite attractive as a thought experiment. desires and demands had to be accommodated. “worthless in its materiality and inert in its sentimental force. and they didn’t therefore own any land. and by Laws within themselves. Mehta writes. and thus.” Indians had an “abhorrence of labour natural to the savage state. they “have not one hundredth part of the Conveniencies we enjoy: And a King of a large and fruitful territory there feeds. it was “waste.” Indians did none of this: as they didn’t desire to engage in commercial agriculture. and they didn’t form governments. settled the Properties of those of the same society. an important figure in the Scottish Enlightenment whose History of America (1777) was the key account of North American indigenous people through the mid-nineteenth century. as God commanded.Territories. who included legal and political philosophers such as William Blackstone and Emeric de Vattel. and agree on limits between them and their Neighbours.32 Indians constituted the “rudest” form of human society. 32. Since land had no meaning until labor was applied to it.”30 But once civilized Europeans properly used the land. Because Indians refused to engage in commercial agriculture.” according to Locke. and is clad worse than a day labourer in England. as well as British historian William Robertson. they didn’t need written laws or money. individual self-interest”—deterritorialized government so that political society had no connection to history or geography. The spontaneous hand of nature was all they needed or wanted. no. nor did they distinguish themselves much 308 american indian quarterly/summer 2008/vol. lodges.” practicing an agriculture that was “neither extensive nor laborious” and meant only to supplement hunting and fishing. Locke maintained. Indians didn’t dominate nature. one that served as a living embodiment of “the infancy of social life. 3 . This doomed them to an inferiority of their own making. prominent clergymen in the British North American colonies. benefited.31 Locke can be seen to be theoretically cleaning up the messy colonial relations in which it was his business to be involved. despite their being not European and not Christian.

” Indians resembled beasts of prey “both in occupation and in genius.” Hunters were “not human” because their “way of life” violated God’s dictate that man should “till the ground. and a variety of other legal topics. because when Europeans arrived. Pennsylvania law.” He allowed that “perhaps they may have some priority of right to occupy a different country.” though they might claim “those spots of ground where their wigwams have been planted. the better to be opposed to civilization. without agriculture of any kind. .” Indians being merely savage hunters in a state of nature. . Indians had no permanent claim to land. so much of the soil around them as may be necessary to produce grain to support them. .” Konkle: Indigenous Ownership 309 . which allowed for some indigenous agriculture. Brackenridge demonstrates how Robertson’s conception of savagery. they could “therefore have but small pretence to a soil which they have never cultivated.” Robertson observed. Brackenridge maintained that. the arts and sciences remain unknown. “common reason has discovered that .” Furthermore.”34 Any concession on the point was mainly owing to U. “they are unacquainted with what is the great object of laws and policy. He also heightened the moral judgment to be made against indigenous people for refusing to engage in commercial agriculture to the same purpose. as well as the chief motive which induced mankind to establish the various arrangements of regular government. and man continues to be an animal differing in nothing but in shape from the beasts of prey that roam upon the mountain.”33 The confluence of the agriculturalist theory of property and the four stages account of human history can be seen in Hugh Henry Brackenridge’s Law Miscellanies (1814). not enough to domesticate them: “They seem not to have been conscious of the superiority of their nature. it was uncultivated “waste. beneficence.S. and . should it be their choice to change the situation where former circumstances may have placed them. without establishing their own authority over any one species. . as in Locke. “the powers of genius are inactive. A justice of the Pennsylvania Supreme Court. it must be most agreeable to the Creator that the earth be stored with inhabitants. in hunters. and that in order to this end. a way of life be chosen in which individuals or particular nations may subsist with the least extent of territory. better known today as the author of the satirical novel Modern Chivalry (1815). a compendium of commentaries on Blackstone.” “Being strangers to property. came to be conceived as a purely hunter state. and suffered all the animal creation to retain its liberty.from animals. however.

but yet I would justify encroachment on the territory claimed by them. which declared indigenous people savage hunters. At the same time I think it still advisable to purchase from them. since the United States already owned the land. who though sunk beneath the dignity of human nature. not landowners. making them the equivalent of tenants merely occupying their own land at the whim of the United States. until they are reduced to smaller bounds. 32. he retained the mechanism. or the extirpation of them altogether. Nevertheless I do not mean to justify the waging an unnecessary war against the natives. indigenous ownership had been successfully contained by the early nineteenth century. own property. William McIntosh (1823). inst itu t ionaliz ing t h e er asure of indigeno us ow ners h ip The legalization came with Johnson and Graham’s Lessee v. actions legally and morally defensible. by definition. but they also necessarily reasserted U. 3 . treaties were only formalities.35 Enlightenment history allowed Brackenridge and others to redefine indigenous people in North America as those who were hunter-savages in the state of nature and who therefore couldn’t. intelligentsia. From this perspective. at least to Euro-Americans.S.S. yet bear the name and are seen in the shape of men. though Brackenridge gutted the actual meaning of indigenous ownership. because it is a dictate of humanity to decline insisting on the full extent of any claim of property. For some among the U. that made U. the greater part of it. the apparently scrupulously fair purchase of land. a vacant country and liable to become the property of those who should take the trouble to possess it. The last step was to make that containment legal.36 The case is 310 american indian quarterly/summer 2008/vol. And. if it may be done conveniently. by any civilized European nation. and under the necessity of changing their unpolished and ferocious state of life. at least. paternalism for and benevolence toward backward Indians as well as the moral superiority of the United States for having made treaties in the first place. be considered as. for fixed habitations and the arts of agriculture. if it may involve the shedding of the blood of those.S.The continent of North-America may therefore on the first discovery of the coast. no.

intentionally or not. when Marshall Konkle: Indigenous Ownership 311 . according to recent archival research on the case by legal historian Lindsay G. it was a temporary state indigenous people inhabited until the United States claimed its land. Marshall attempted to negate Johnson in his subsequent Cherokee Nation cases. he writes. Rather. along with the colonial history of the theory of property. This was a radical change in the law. In Johnson v. Marshall didn’t intend to make that radical change. they automatically owned all of it. Lindsay Robertson argues. Occupancy no longer determined ownership. and in essence. where he specifically endorsed the principle of indigenous ownership and political autonomy as recognized in treaties made with Indian nations.the foundation of U. as it had for British colonists. and. Georgia (1831) and Worcester v. because indigenous people were savages who had been subjected to conquest. Georgia (1832). McIntosh institutionalized a liberal imperialism peculiar to the United States. when representatives of European countries set foot on North American soil. he wished to protect preemption rights purchased by Virginians after the Revolutionary War in which he had a personal interest and that were not directly at issue in the case.”37 It was cited as recently in the 1980s in Australian and Canadian courts for the same purpose. it turns out that the English colonization of North America contributed some of the most substantial justifications for global European imperialism in the modern era. Robertson. Lindsay Robertson tells the exceedingly convoluted backstory of the Johnson decision. and after Marshall’s death in 1835 Jackson-appointed Supreme Court justices succeeded in overturning Worcester in five cases decided between 1836 and 1841. as Brackenridge argued in 1814. it was a “collusive” case manufactured by land speculators on both sides to secure title to land grants (involving millions of acres) made during the Revolution in the Ohio Valley that were plainly illegal under the Proclamation of 1763.39 Nevertheless. After seeing what he had wrought.40 Johnson v.38 Interestingly. law to have had an international impact during the nineteenth century in the British colonies on the point that “native people had lost their lands by conquest. property law. then. Johnson was the justification that Georgia and other states used to dispossess the Cherokees and other southern nations. Cherokee Nation v. McIntosh John Marshall redefined the existing doctrine of discovery such that. It’s also one of the few cases of U.S. the first case law students learn today.S.41 While the case was initiated in the late eighteenth century.

while yet in possession of the natives”.44 In this Marshall practiced what legal historian David E. whether agriculturalists. 3 . “these grants have been understood by all. and the paragraph where he turned from assertion to justification begins as follows: We will not enter into the controversy.wrote his decision in 1823 he changed the time frame involved to the postrevolutionary period in order to encompass the preemption rights that interested him personally. whatever the private and speculative opinions of individuals may be. Marshall asserted that European nations not only had the title to indigenous land but that they had always granted that land to settlers while indigenous people still had possession and that the individual states had inherited that authority. he grafted the new imperial narrative of savagery and civilization onto a legal history that. Wilkins calls “retrohistory. respecting the justice of the claim which has been successfully asserted. Lindsay Robertson points out.46 312 american indian quarterly/summer 2008/vol. that Marshall based his argument on a reading of the significance of colonial charters to which he did not have access. both Banner and Lindsay Robertson agree. or to contract their limits. subject only to the Indian right of occupancy.” a right that Marshall was at that moment inventing but that he insisted had been universally recognized from the moment of the European discovery of America. Supreme Court with respect to indigenous people. to expel hunters from the territory they possess. Then.42 Banner describes Marshall’s reading of the colonial charters and his historiography in general as “flat wrong. no. have a right on abstract principles. furthermore. in order to evade the problem of indigenous ownership.” a particular habit of the U. including William Robertson’s History of America. to convey a title to the grantees. was almost wholly invented. Using an extended passage from his own history of North America to shore up his argument. where the Court “retroactively [generates] an interpretation of historical events that contradicts the actual occurrence.”45 Thereafter in his opinion Marshall sought to justify himself. citing only secondary sources consisting of an array of eighteenth-century histories of the United States.S. 32. Conquest gives a title which the Courts of the conqueror cannot deny. The problem with this was.”43 But Marshall was plain in his argument: discovery established the “power to grant the soil. merchants. and manufacturers.

because of the problems that purchasing indigenous land presented (i.S.”48 Or world history. because of the United States. Marshall insisted that Indians were “fierce savages” locked in violent conflict with civilized Europeans.”47 Lindsay Robertson concurs. . His use of “conquest” has struck legal scholars as odd.To start off. to expel hunters.” he writes. however. the only possible. Conquest as he understood it was not possible in North America.” But once he introduced the narrative of savagery in conflict with civilization. imperial discourse. after all. even if Marshall tried—not very forcefully—to deny that he was arguing anything remotely controversial. . the agriculturalist theory of property that it had absorbed came along with it. and had just led troops through a revolution. One might imagine that for Knox “conquest” was a concrete thing.49 The notion of conquest is less inexplicable if you view Marshall’s arguments through the emerging U. which he “seem[ed] to have found a little distasteful. as previous empires had incorporated populations subjected to conquest. outcome was civilization’s conquest of savagery. and inevitable. Banner notes that this was the first instance in which Marshall used the word “conquest” and that it can’t be explained. But by 1823. have a right . This mythological conquest allowed Marshall to deny indigenous ownership without explicitly relying on the radical notion that “agriculturalists . and there was no incorporating them as they were. observing that in Marshall’s telling “the Court was powerless to deny the adopted policy” to the point where “we were the victims of our colonial inheritance. Marshall explicitly rejected the agriculturalist theory of property. and it was implied as soon as Marshall invoked the idea of savagery. civilization must and would effect a conquest of savagery was the principal Konkle: Indigenous Ownership 313 . he was a military man. The idea that in the United States. indigenous people resisted selling). because Indians were so different and an anomaly in history—a prevalent theme in U. “conquest” had become an abstraction that would be put into service justifying concrete actions of the type Knox warned against. noting also that invoking conquest allowed Marshall to distance himself from his own decision..S. imperial ideology. In 1789 Henry Knox wrote that there were two legitimate ways to get indigenous land: purchase or conquest.e. . If savagery and civilization were locked in conflict in the United States. “Conquest was even less accurate than discovery as a theory denying Indians ownership of their land. .

or to introduce among them the most common arts of life. The fact that Indians wouldn’t cooperate. While Cass was moving toward but was not quite yet at a biological explanation of difference that would soon become dominant in the United States. their resistance was a character flaw. He argued that. Cass introduced a new reading of North American colonial history. and it seems to have made him a little uneasy.S.” he wrote. In January 1830 Cass argued for removal using Johnson as his rationale. If European governments claimed title to indigenous land on first sight. the point still had to be made. And. as savages and hunters. at least early on in the maturing of U. they remained morally and intellectually “stationary. therefore.51 Following Marshall in Johnson. Indians were the earliest form of human society. They were hunters who merely roamed over 314 american indian quarterly/summer 2008/vol. every effort to meliorate their situation. It was a mystery. “As civilization shed her light on them. 32. Cass argued that it had always been the case that Europeans claimed title to all North American land on first seeing it. an advisor to and defender of the Cherokees. The contention over the grand narrative of savagery and civilization’s validity can be seen in two conflicting positions on Cherokee removal taken in the pages of the North American Review in 1830 by Jeremiah Evarts. Cass wrote. complicated Cass’s plans for their improvement. the peculiarity was all owing to Indians’ status as savages.discursive means by which indigenous ownership and therefore political society were erased in the period. . “some peculiar circumstances must have existed to vindicate a claim. as in Marshall’s Johnson decision. and by Lewis Cass.” Like Marshall. no. They “resisted . This was the Jacksonians’ standard argument. then territorial governor of Michigan and soon to be Andrew Jackson’s secretary of war. no matter how benevolent Euro-Americans were. imperial ideology.”50 Clearly. 3 . at first sight revolting to the common justice of mankind. drawing out the immediate political implications of the savage versus civilized narrative. he relied principally on William Robertson’s discussion of Indian character for his assertions. they couldn’t possibly exist in contact with the highest form of human society without becoming corrupt. . in the late 1820s and early 1830s. why were they blind to its beams?” he asked. and the humane thing to do was to remove indigenous people from contact with civilization to some place where missionaries could work on them in isolation. But that erasure wasn’t automatic or immediate.

a lawyer and secretary of the American Board of Commissioners for Foreign Missions. than by examining the foundation of title to lands.” He observed that Europeans had a right to claim unoccupied land but nothing more and asked. “There can be no doubt. and that the narrative of inevitable conflict between savage and civilized was absurd in light of historical facts. It will be found. that many people seem to think it reasonable. there has been much loose reasoning. and some quite as loose morality. On the subject of the rights of the American aborigines. that the mere discovery of a country should give the discoverers a title paramount to the title of the natives. and raising imaginary difficulties.” he continued.” Cass insisted. to which agriculturalists had a superior claim because everyone acknowledged that God willed Christians to dominate and subdue the earth. or by looking at facts. and therefore Europeans rightfully claimed Indian land. however. and partly because they were commonly in the habit of using land for tillage. that respectable writers have more frequently been led into error by stating extravagant cases. procuring from it the means of comfortable subsistence. and of increase and improvement. whose ancestors had been in possession from time immemorial?” “The mere statement of the case shows the inherent absurdity of a claim. but “that the Creator intended the earth should be reclaimed from a state of nature and cultivated. which has been so often made. answered Cass with the Cherokees’ argument that Marshall’s discovery doctrine was based on historical untruths.53 The first thing Evarts did was reject the idea that Europeans had a superior title to land “partly on the ground of superior civilisation. that Britain and the United States had unmistakably recognized indigenous ownership and autonomy. as they took place on the settlement of this country. In October 1830 Jeremiah Evarts. that the human race should spread over it. and Indians clearly did not.54 At the very least the controversy demonstrates that indigenous ownership and its implications were widely recognized in the United States and that the idea. argued by Brackenridge and by Marshall in Johnson Konkle: Indigenous Ownership 315 .their land. which was not generally done by the original inhabitants of America. “How is it conceivable. however.”52 There was plenty of doubt about this story.

moral and political superiority was no longer recognition of ownership but the benevolence and paternal care expressed for Indians as backward children.S. this essay had its influence on John Marshall.and held to be a fact by many contemporary scholars. and that the only moral and legal position for the United States was to recognize indigenous ownership and autonomy. If recognizing indigenous ownership established a relationship of rough equality between the United States and indigenous nations. nationalist discourse incorporated the recognition of indigenous ownership as a signifier of moral and political superiority. as Evarts himself pointed out. He went on. in great detail. Imperial benevolence and its many cultural forms—picturesque representations of ideal (dead) indigenous people.S. the new relationship was one of political oppression. the narrative only had to be endlessly repeated by those who benefited from it for it to appear to be true. no. that their autonomy had been recognized in numerous treaties made by the United States and its imperial predecessors. Evidently. b enevol en ce an d de lus ion Indigenous ownership was the problem that faced U. that EuroAmericans always believed that Indians were hunters and therefore had no real claim to their own land is just not true. because. But that wasn’t enough to stop the “blood and injustice” of imperial expansion or the power of the imperial ideology that fueled it. Georgia and who in that decision seems to have advocated a return to recognition of indigenous ownership as a means of establishing U. 3 . who made some of the same points in Worcester v. was to redefine indigenous people as those who couldn’t own land or form legitimate governments because they were savages.S. This was an argument that had to be made in the face of vigorous opposition from those who were unconvinced by the grand narratives put forward to support such claims—although perhaps “argument” is too strong a word. and it was complicated by how U. 32. Accordingly. effusions of sympathy at their sad (inevitable) fate—were essential to this system of political oppression and violence. Benevolence not only justified but construed as morally supe316 american indian quarterly/summer 2008/vol. imperialism at the turn of the eighteenth century. as outlined here. legitimacy. to argue that indigenous people had occupied the land. The solution. but oppression masked by imperial benevolence.S. the proof of U.

and to really be civilized required feeling properly. every Euro-American embodied civilization. every event. “Part of what it means to be constructed as ‘white’ is a cognitive model that precludes self-transparency and genuine understanding of social realities. especially with political and cultural elites. “but with the assurance that this set of mistaken perceptions will be validated by white epistemic authority. The imperial ideology that erased (because it had to) indigenous ownership and political society tied Euro-American subjectivity itself to that erasure at a very basic level. not savages. arguing that as the social contract describes a society founded on consent. in some way. although an orientation toward benevolence would seem to be the case. benevolently. “White signatories [of the racial contract] will live in an invented delusional world. The philosopher Charles Mills proposes a “racial contract” as a mirror to the theoretical social contract.” he writes. and that.rior imperial violence—it was only doing what was right for the poor benighted Indians. As a part of his analysis he posits an “epistemology of ignorance”: “One has to learn to see the world wrongly. This doesn’t mean that everyone did.”55 It is an “invented delusional world” in the nineteenthcentury United States: consider the bizarre nature of actually believing that savagery and civilization—abstractions—were battling it out in the United States itself. of course. Americans were civilized. It also gave colonial-imperial subjects a positive means of understanding their own place in the system.” Mills continues. one way or another. that conquest Konkle: Indigenous Ownership 317 . every indigenous person. you yourself were a part of this battle. and the salient point about savages was that they didn’t and couldn’t own land. and that every indigenous person whom you might in some way encounter embodied this world-historical phenomenon and indeed was a walking abstraction—proof. toward those poor benighted Indians. everything associated with them must be understood in light of this narrative of savagery and civilization. a racial fantasyland. white individuals must learn to misinterpret what they experience. If any indigenous person embodied savagery. Having a population that could learn to feel better about itself for having the right feelings would also seem to be much more effective in the normalization of imperialism than just hating Indians as racially other. the racial contract describes a society founded on exclusion (and within this paradigm the remedy for indigenous people is not inclusion but recognition). so that.” To live in a racial polity. in the case of indigenous people. whether religious or secular.

3 . no.”56 His analysis was somewhat compressed. imperialist thought. for we have no law to reach them. expressions of benevolence are never only expressions of individual feeling. it is true. So it is no use. and we have now become rich and powerful. about themselves and their country.S. The point is. Toward the end of his Eulogy on King Philip (1836) William Apess mocked Andrew Jackson: “You see. even if the lions devour you. At least from those who’ve left a record. therefore. for we promised the land you have somebody else long ago. we claim to be your fathers. my dear sons and daughters. and it is hard to depart from it. as a matter of course. no matter how “sincere” they may appear to be. 32. The expressions of benevolence or sympathy for or sentimental representations of Indians. On the face of it. without self-consciousness. The fact that many scholars still often read benevolence. that our fathers carried on this scheme of getting your lands for our use. who are cheating you. sympathy.S. Indigenous people have understood how this system worked and have been describing it more or less from the moment they started writing in English. they are always part of a larger system of thought. you need not cry. but Apess pretty much covered the principal issues in U. imperialism: the redefinition of preemption. it’s clear that this is the way that many people in the United States in the nineteenth century thought. and sentiment directed at indigenous people as merely individual is only an effect of the depoliticizing of indigenous people in U. and all for everyone’s good besides. It’s a bit breathtaking—breathtakingly insane—when you think about it. no one’s fault.was at hand. But this has been the way our fathers first brought us up. the erasure of indigenous consent and autonomy. perhaps twenty or thirty years. we cannot protect you although you be our children. To put it another way. you shall have no protection from us. and we have a right to do with you just as we please. the insistence that it was all inevitable. this seems rather more complex than straightforward racial exclusion if only because it implicates all of human history and the United States itself as the culmination of human history. anyway. to get you away out of the reach of our civilized people. are never not ultimately about political oppression and violence. my red children. and we did it without your consent. And we think we shall do you a great favor. they had to. you must go. to drive you out. 318 american indian quarterly/summer 2008/vol.

CT: Yale University Press. no. the universalized U.”57 This narrative makes sense to EuroAmericans because it is part of their imperial heritage.S. as Locke himself put it. If the people have reason. no.S. For example. the maddeningly cloying professions of paternal benevolence in which such violence was delivered. The abstractions of U. The Endgame of Globalization (New York: Routledge. Carolina. “John Locke. then they “may be destroyed as a Lyon or a Tyger.” Political Theory 32 . Bernard Porter.S. 2005). and if those who are dropped upon protest. imperial discourse allow it to operate particularly insidiously. Since government has no inherent connection to land. notes 1. “Democracy” can then be metaphorically or sometimes literally dropped onto another sovereign nation. 2 . or tradition. Writers on the history of liberalism often remark that the term “liberalism” itself dates from the early nineteenth century and was applied retroactively. such as Niall Ferguson. and the Two Treatises of Government. for example. William Appleman Williams. in Chalmers Johnson. one of those wild Savage Beasts. when the U. and the World (New Haven. See the critique of contemporary advocates of liberal imperialism.” Common Knowledge 11. 3. 2 (2005): 198 –214 .and. America. Empire as a Way of Life (New York: Oxford University Press. The narrative of civilization’s conquest of savagery has come in handy. 2006). and Neil Smith. conception of democracy—the current analogue of “civilization”—can be projected onto any place. but it’s normal for Euro-Americans. and it became normal because of the history of imperial relations with indigenous people in North America. if they don’t. Nemesis: The Last Days of the American Republic (New York: Metropolitan Books. 71– 89. then they will acquiesce to this benevolent introduction of civilization. history. as William Appleman Williams pointed out. finally. “Imperial Trauma: The Powerlessness of the Powerful Part 1. with whom Men can have no Society nor Security. 2006). Konkle: Indigenous Ownership 319 . Empire and Superempire: Britain. It’s an absurd and dangerous way of thinking. government has wanted to justify taking land or resources from some other sovereign nation around the world without its consent. see Linda Colley. They also point out that liberalism and imperialism are “mutually constitutive” (David Armitage. then they must not be morally fit for this most perfect form of government. and imperial delusion persists. 1980).

S. 3 . 1st Cong. 1789. Relating to the Several Indian Tribes. Seeds of Extinction: Jeffersonian Philanthropy and the American Indian (New York: W.. 13. Political Writings. Liberalism and Empire. U.” Journal of the Early Republic 22 (Fall 2002): 405–35. Wallace. Anthony F. 6. 17. 13. and the Cases of Polk and Bush. 7. 30 –31. 32.” Western Historical Quarterly 38. U. A Nation among Nations: America’s Place in World History (New York: Hill and Wang. 13. 1803. ed. February 27. Senate. See Robert M.S. Jefferson and the Indians: The Tragic Fate of the First Americans (Cambridge.. imperialism that either reiterate the liberal consensus on Indians or leave out indigenous history altogether see Walter Nugent. This is just a small sampling.org/journals/whq/38. U. Ct. 165– 66. 53. Va. Senate. S. Liberalism and Empire. C. Thomas Bender. Clark. Stuart Banner. 2005). For recent works discussing U. Norton. Marshall v. 10.S. This Is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (Toronto: University of Toronto Press.historycoopera tive. 2006). in Political Writings. Banner. and Charles S. no.5 [2004]: 602). 8. 9. Sandra M. 4. 1.html. (1791). 163. MA: Harvard University Press. Senate. no. 23 –24. Secretary of War. 29. 320 american indian quarterly/summer 2008/vol. 13. Mehta. 18. Report. 2005). 43. 14. How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge. 1803. in Appleby and Ball. 11. MA: Harvard University Press. 1999).” American Quarterly 59. W. as Uday Singh Mehta puts it. 20).1 /nugent. Bernard Sheehan. 53. How the Indians Lost Their Land. Robertson. 99 –100. Owens. Gustafson. “The American Habit of Empire. 522 . 2007 . http://www. 30 –31. Maier. 19. 1 (2007): 107–33 . 1974). accessed April 21. “Histories of Democracy and Empire. See Dale Turner. 16.S. 15. no. 5. Report from Henry Knox. Mehta. Thomas Jefferson to Benjamin Hawkins. “Jeffersonian Benevolence on the Ground: The Indian Land Cession Treaties of William Henry Harrison. February 18. or. Conquest by Law: How the Discovery of America Dispossessed Indigenous People of Their Lands (Oxford: Oxford University Press. Among Empires: American Ascendancy and Its Predecessors (Cambridge. 12 . Joyce Appleby and Terrence Ball (Cambridge: Cambridge University Press. 1999). Report. 2005). “the urge to [imperialism] is internal ” to liberalism (Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought [Chicago: University of Chicago Press. 2006). Lindsay G. 1999]. MA: Harvard University Press. to the President of the United States. Thomas Jefferson to William Henry Harrison. 525. 1st sess. 20. August 7.

he seems to think they are arguing that Locke’s theory of property was the legal norm in the British North American colonies. William Robertson. 1995). 27. 140 –41. Banner cites both Arneil and Tully but dismisses their arguments. 286. and Power. and Jeffrey Ostler. 32 . 30. 1995). Locke. Colonialism from Lewis and Clark to Wounded Knee (Cambridge: Cambridge University Press. The History of America (Edinburgh: Stirling and Slaked. Banner. 33. 1814). 127–29. 1 . 302 . 125. 1996). Mehta. especially chap. 152 . 25. Pearce. 168. which they are not (47–48). See also Vicki Hsueh. 295. 21. 291. ed. “Rediscovering America.” 603. 124 . no. 83. Knowledge. 121. John Locke and America. Jefferson’s Empire: The Language of American Nationhood (Charlottesville: University of Virginia Press. Jefferson to Hawkins. Jan Nederveen Pieterse and Bhikhu Parekh (London: Zed Books. 22 . James Tully. 1993). 1819). 120. 82 – 91. Law Miscellanies: An Introduction to the Study of Law (Philadelphia: P. “John Locke.” 149 – 51. Two Treatises of Government.20. 51. 2004). 15–16. 26. 2000). 1988). Peter Onuf.S. 2000).” in An Approach to Political Philosophy: Locke in Contexts (London: Cambridge University Press. 126. Savagism and Civilization. How the Indians Lost Their Land. “Giving Orders: Theory and Practice in the Fundamental Constitutions of Carolina. Bhikhu Parekh. Hugh Henry Brackenridge. 145–48 . 31. Konkle: Indigenous Ownership 321 . Tully. James Tully. The Plains Sioux and U. 288. which leads to his regular musing on how it was that a particular Euro-American writer could deny the history of indigenous ownership when it was a clearly established legal principle at the time. John Locke. 24. 91. “Liberalism and Colonialism: A Critique of Locke and Mill. 89. for example. 182 – 83 . 13 –15. 23. 34.” Journal of the History of Ideas 63. Peter Laslett (Cambridge: Cambridge University Press. 4 . 74. ed. Banner consciously narrows his focus to property alone and resists addressing the political valence of relations between indigenous people and Euro-Americans. John Locke and America: The Defence of English Colonialism (Oxford: Clarendon Press. “Rediscovering America: The Two Treatises and Aboriginal Rights. Barbara Arneil. Savagism and Civilization: A Study of the Indian and the American Mind (Berkeley: University of California Press. Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press. 29. Byrne. 522 . 3 (2002): 425–47. 296 – 97. Liberalism and Empire. 125. 28.” in The Decolonization of the Imagination: Culture. Roy Harvey Pearce. Arneil. 115. Armitage. See. Two Treatises.

review of Documents and Proceedings Relating to the Formation and Progress of a Board in the City of New York. Georgia. 1997). no. Robertson. 183. in On Our Own Ground: The Writings of William Apess. Law Miscellanies. The most recent edi- 322 american indian quarterly/summer 2008/vol. 397. Banner. 69 (1830): 397. Eulogy on King Philip. 54. the plaintiffs attempted to use a forged British document that supposedly allowed individuals or nongovernmental groups to buy land from indigenous people: the document they forged pertained to India. 37. MA: Harvard University Press.) 1 (1831). 39. 186. 307. and introduction by Barry O’Connell (Amherst: University of Massachusetts Press. White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence (Toronto: Published for the Osgoode Society for Canadian Legal History by the University of Toronto Press. (8 Wheat. and Improvements of the Aborigines of America. Conquest by Law. 47. 44. 53. 574. a Pequot. 41. 43. 303. 21 U. Conquest by Law. 42 . 32. Georgia. Wilkins. no. Conquest by Law.S.” Journal of the Early Republic 18. Cass. Preservation. Robertson. 46. Brackenridge. 40. 56. xi–xii.S. Johnson and Graham’s Lessee v. 188. Johnson v. McIntosh. Early on. (5 Pet. 51.S. The Racial Contract (Ithaca. William Apess. American Indian Sovereignty and the U. 3 . and the plaintiffs merely added an n (Conquest by Law. 50. (6 Ret. review of Speeches on the Indian Bill. How the Indians Lost Their Land. 185. 590. review. Race and Manifest Destiny: The Origins of American Racial Anglo-Saxonism (Cambridge. Conquest by Law. 30 U. ed. 1998). 77. Harring.S. 1981). and James Brewer Stewart. Sidney L. Banner. 31 U. North American Review 30. 48. McIntosh. Evarts. Robertson. 76. Mills. Johnson v. 1997). “SHA Roundtable: Racial Modernity.) 543 (1823).) 515 (1832). 4). review. no. for the Emigration. 66 (1830): 72 . 588. Cherokee Nation v. Supreme Court: The Masking of Justice (Austin: University of Texas Press. Worcester v. NY: Cornell University Press. Robertson. 144. 55. 100 –101. McIntosh. 36. 38. 18. Charles W. Jeremiah Evarts. William McIntosh. Johnson v. 2 (1998): 181–237. 45. no. North American Review 31. 49.35. How the Indians Lost Their Land. Robertson writes. 52 . 89. Banner. See Reginald Horsman. How the Indians Lost Their Land. 125. Lewis Cass. David E. 1997). 112 –13.

“Liberalism and Colonialism. http://www2 . 57.asp. Konkle: Indigenous Ownership 323 . Tully. 2007). See also Parekh. “Rediscovering America. 274. “culture” (“William Apess.” Norton Literature Online. Two Treatises.tion of the standard Norton Anthology of American Literature describes Apess as a “tragic figure” who felt “betrayed” by U. Locke.com/college/english/naal7 / contents/B/authors/apess.S.” 88 .wwnorton.” 143 –45. accessed December 3.