32.3.Konkle_Indigenous Ownership and the Emergence of U.S. Liberal Imperialism

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

Maureen Konkle

The American Indian Quarterly, Volume 32, Number 3, Summer2008, pp. 297-323 (Article)

Published by University of Nebraska PressDOI: 10.1353/aiq.0.0010

For additional information about this article

Access Provided by CAPES-FundaÃ§Ã£o CoordenaÃ§Ã£o de AperfeiÃ§oamento de Pessoal de NÃ-vel Superior at 09/13/11 9:17PM GMT

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

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

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 mod-

ern 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 cer-

tain 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 per-

meates U.S. society as a “way of life.”2 The idea of empire itself is com-

pletely 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-

298 american indian quarterly/summer 2008/vol. 32, no. 3

trol and not anyone’s fault. Every dead Indian, real and imagined, told

that story over and over again.

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. In North America Europeans set out

to claim land they didn’t know that was occupied by people they couldn’t

control. To make alliances, establish boundaries, and acquire land they

made legal agreements, including treaties, that recognized indigenous

ownership of land and therefore of political autonomy. After the for-

mation of the United States that recognition, well established in North

American legal and political practice, became a signifier of U.S. moral

and political superiority. When indigenous nations resisted selling land,

recognition became a problem for expansionists, who then needed to

neutralize indigenous ownership but in such a way that it could be rec-

onciled with the dominant political ideology. 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, as

savage hunters, by definition couldn’t own property and therefore didn’t

form governments. The purpose of this essay is to show that the con-

struct of “savagism and civilization” in U.S. culture has a political con-

text—the necessity of denying the principle of indigenous ownership—

and a political effect—the positing of an imperial ideology, the primary

claim of which was that imperialism didn’t exist as a historical process

but was rather the unfolding of God’s will. The figure of the Indian was

the linchpin of the imagined conflict between savagery and civilization,

embodying that imperialist narrative. The figure wasn’t just a product

of blind racial prejudice or ethnocentric cultural misunderstanding,

it stripped away history, geography, political life, and traditions from

indigenous people to produce an abstraction that demonstrated that

they didn’t and couldn’t own land and form legitimate governments.

The relations between indigenous people and the United States, his-

torically and in the present, are the relations of liberal imperialism—

that imperialism that presents itself as benevolent and civilizing, if

only the colonized would cooperate and be properly raised up. In lit-

erary and historical scholarship the term “liberal imperialism” usually

describes British imperial history, particularly in late-eighteenth- and

early-nineteenth-century India, and is at present a term political neo-

conservatives endorse as a positive description of hypothetical U.S.

Konkle: Indigenous Ownership 299

global hegemony.3 Historically, liberal imperialism figured the colo-

nized as backward children who had to be properly educated to enjoy

(eventually, theoretically) property, individual rights, and citizenship.

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,” historian Uday Singh

Mehta writes.4 This required a paternalistic authority over the colo-

nized and programs of education and reform focused on a hypotheti-

cal future in which the colonized would be brought up to speed civili-

zationally. In British India colonial subjects were considered to be in a

state of “tutelage”; in the United States, via Supreme Court Chief Justice

John Marshall in Cherokee Nation v. Georgia, the equivalent concept was

“pupilage,” or, more broadly, the idea of the Indian as ward of a benev-

olent Great Father. The trick of liberal imperialism is that it promises

freedom and delivers subordination, as its “evangelistic” reforming of

the colonized, Mehta points out, goes on forever.5 Furthermore, in the

United States the claims of civilizing Indians, of offering them citizen-

ship, were a principal means of divesting indigenous people of land and

political autonomy as well as of justifying the imperial relationship itself.

Citizenship was a product of imperialism, not of benevolence.

I’m not taking issue in this essay with the substance of much of the

scholarship on the representation of Indians, the idea of savagism and

civilization, or the history of relations with indigenous people but

rather with a prevailing assumption of the moral rectitude of the politi-

cal “inclusion” of indigenous people as U.S. citizens and a relative lack

of interest in indigenous political struggles for autonomy, historically

and in the present day. 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 prop-

erly and therefore felt justified in taking it; but they sincerely wanted

to help Indians become civilized, after which (they promised) Indians

could become citizens. The important aspects of this narrative are Euro-

Americans’ regrettable ethnocentrism—they couldn’t help themselves—

and their sincerity. Even when they were bad, for the most part they

meant well. The proof of their meaning well is the fact of indigenous

citizenship in the United States. (What indigenous people thought of

U.S. citizenship, whether or not they wanted it [usually not], and, if they

did want it, what they meant to do with it are rarely addressed.) If past


actions of the United States and its (nonindigenous) citizens must be

condemned, the implication is that, at present, citizenship and cultural

recognition and appreciation have resolved the principal problems of

U.S. colonization. The “inclusion” of indigenous people in the U.S. body

politic can be represented as a moral victory for the United States, an

instance of the nation living up to its professed values, albeit belatedly.

This might be called the liberal consensus on Indians, and it’s entirely a

product of nineteenth-century liberal imperialism.6

In much of the recent work discussing the history of U.S. imperial-

ism, academic and otherwise, indigenous people barely register. If they

appear, they are often treated as a done deal, a moot point; writers

invoke tragedy and move on. This is also a product of an imperial ide-

ology that conceives of its own history as world history and construes

its own violence as unfortunate but inevitable, and indeed required, for

progress to occur. The erasure of indigenous ownership and therefore of

indigenous political society as such is the foundation of U.S. imperial-

ism and imperial ideology. I want to sketch that point out here, I hope

for further discussion.

problems in early u.s . imperialism

Indigenous people owned their land and meant to keep it, at least

enough of it, and when they made this point to Euro-Americans in the

late eighteenth century, they invoked their diverse traditions but also

colonial history. That they owned their land outright was a widely rec-

ognized and even basic principle in colonial North America. Then, in

the early years of the United States, the recognition of indigenous own-

ership became a means for political elites to establish U.S. moral and

political superiority, distinguishing it from British tyranny and indeed

the practices of any other nation in the world. In contrast, in attempt-

ing to evade indigenous ownership and get more land more easily,

expansionists were driving the political and cultural redefinition of

indigenous people and their relationship to land. The problem was that

the political elite couldn’t readily jettison indigenous ownership when

it was associated with the new state’s exceptionalist claims.

In his recent book How the Indians Lost Their Land: Law and Power

on the Frontier (2005), legal historian Stuart Banner maintains that

seventeenth-century English settlers, who found “preexisting [systems]


of property rights everywhere they went” in North America, relied in

their relations with indigenous people on existing natural law theory,

which held that occupancy determined property in land, and therefore

indigenous land had to be purchased. This practice persisted through

the late eighteenth century. English settlers recognized indigenous own-

ership not from altruistic or egalitarian motivations but for practical

reasons having to do with the instability of land policies and ongoing

power struggles. Colonial governments regulated land purchases through

licenses, which were relatively easy to acquire, but this formality, Banner

writes, “did not cause the English to think of Indian land title as a lesser

form of ownership than English title,” since “all landowners . . . faced

a variety of restrictions on what they could do with their land.”7 The

Royal Proclamation of 1763 recognized indigenous ownership, establish-

ing the Crown as the sole authority for treating with Indian nations; it

outlawed land speculation and set a boundary between the colonies and

the Indian nations of the West. (The proclamation remains an impor-

tant factor in Canadian-Aboriginal relations.)8 After an initial effort in

the immediate postrevolutionary period to assert that the British sur-

render transferred title to indigenous land to the United States, U.S.

policy was to recognize the autonomy of indigenous people, purchase

their land only with their consent, and make efforts to “civilize” them so

that they might someday become incorporated into the United States.

At that moment Indians weren’t necessarily doomed to disappear.

But as Euro-Americans clamored for more land, the principle of

indigenous ownership began to be eroded, mainly in relation to the issue

of preemption rights. Previous to the Revolution, Europeans under-

stood the right of preemption to mean that only the European nation

claiming interest in a particular territory had the right, in relation to

other European nations, to buy land from indigenous people in that

territory. It did not confer ownership or title but was rather something

like a declaration of interest that European nations mutually recognized

among themselves.9 During the Revolution and especially afterward,

preemption rights began to be redefined. States began selling preemp-

tion rights to land speculators, 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. In the face of this transformation

of preemption, in 1790 Congress passed the first of the Indian trade and

intercourse acts, which, returning to British colonial policy, established


the federal government as the sole authority for purchasing land from

indigenous people, who owned their land outright.

Those who had already secured preemption rights then sought to pre-

serve their claims legally. One of the earliest cases brought was Marshall

v. Clark (the Marshall involved was John Marshall’s father), 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.e., whether indigenous

people would sell or not); courts in Tennessee and Pennsylvania later

found the same.10 The effect of these cases was to normalize and even

expand this postrevolutionary redefinition of preemption rights. Despite

the federal government’s continued emphasis on indigenous ownership,

lawyers and land speculators “began to think of the preemption right as

the fee simple title, and the Indians’ present right of possession as a kind

of tenancy that would last as long as the Indians remained on the land,”

and, furthermore, that this had always been the case.11

If the principle of indigenous ownership continued to be eroded out-

side of government, inside government recognition of ownership was

necessary for both strategic and ideological reasons. 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.S. Indian

policy. In a review of relations with indigenous nations on U.S. borders,

he wrote:

The Indians being the prior occupants, possess the right of the

soil. It cannot be taken from them unless by their free consent, or

by the right of conquest in case of a just war. To dispossess them

on any other principle, would be a gross violation of the funda-

mental laws of nature, and of that distributive justice which is the

glory of a nation.12

That the United States would or could remove the Indians by force,

Knox argued, was unlikely, given the state of U.S. finances and the

desirability of keeping peace on the frontier. Indeed, he continued,

Congress’s initial belief that Britain’s surrender gave it “the fee of all

the Indians lands, within the limits of the United States,” was con-

tradicted by its own actions. Indigenous people rejected the idea, and

then Congress was forced to accommodate them. For example, Knox

pointed out, “it is manifest, from the representations of the confeder-


ated Indians at the Huron Village, in December, 1786, that they enter-

tained a different opinion, and that they were the only rightful propri-

etors of the soil,” a position to which the United States acceded when it

appropriated money to buy the land in question. Knox wrote that while

states had authority for the disposition of land within their bound-

aries, only the federal government could have authority for relations

with indigenous nations, and they “ought to be considered as foreign

nations.”13

Knox argued that a conciliatory system of making treaties with indig-

enous people would be a much better, and cheaper, means of “managing

. . . the Indians, and attaching them to the United States” than “a system

of coercion and oppression.” Not only would it be more expensive, but

“the blood and injustice” of it “would stain the character of the nation

. . . beyond all pecuniary calculation.” Knox placed heavy emphasis on

U.S. “character” or legitimacy, contrasting the United States with Britain

(which didn’t have much character, in his opinion) and observing that

“the obligations of policy, humanity, and justice, together with that

respect every nation sacredly owes its own reputation, unite in requir-

ing a noble, liberal, and disinterested administration of Indian affairs.”14

This was not entirely magnanimous: at that moment, the United States

didn’t have much choice but to recognize indigenous ownership. Knox

and U.S. officials made a virtue out of necessity, incorporating recogni-

tion of indigenous ownership into their exceptionalist understanding of

the United States.

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. He positioned the United States as

benevolent reformer and indigenous people as in need of civilizing. He

assumed that, the superiority of the U.S. political system being obvious,

indigenous people would surely cooperate. Ownership was the problem,

however; it meant that indigenous people were still free to do what they

wanted, including not sell. 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,

both written in 1803.

Jefferson insisted on indigenous ownership, although his keenness

for expansion put a great deal of pressure on the idea. Historians have

agreed that he was bent on continental expansion with an apparent


ruthlessness that seems difficult to reconcile with his political idealism.15

While they tend to cling to the idea that Jefferson’s professed benevo-

lence toward indigenous people, though paternalistic, was sincere, his-

torians have clearly established the manipulation, coercion, and aggres-

sion, couched in that benevolence, that characterized relations with

indigenous people during his presidency but also in the early national

period generally. Missionaries and U.S. 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, tried

different strategies, and gave each other advice on the topic.16 This was

longstanding practice about which Jefferson was certainly conscious.

Anthony F. C. Wallace points out that in the manuscript of Notes on

the State of Virginia (1787), in a passage in which Jefferson insisted that

land had been purchased from Virginia Indians “in the most unexcep-

tionable form,” after the word “purchased” Jefferson “added, and then

crossed out, the qualification: ‘It is true that these purchases were some-

times made with the price in one hand and the sword in the other.’”17 In

1803 Jefferson famously advised William Henry Harrison, his agent in

Indiana Territory, to entrap indigenous people in debt to U.S.-run trad-

ing houses, “because we observe that when . . . debts get beyond what

individuals can pay, they become willing to lop them off by a cession of

lands.”18

Jefferson told his agent in the south, Benjamin Hawkins, that U.S. citi-

zenship for indigenous people was his ultimate objective: “Incorporating

themselves with us as citizens of the U.S., this is what the natural prog-

ress of things will of course bring on, and it will be better to promote

than retard it.”19 He advised Hawkins to keep quiet about this, however:

It is possible, perhaps probable, that this idea may be so novel as

that it might shock the Indians, were it even hinted to them. Of

course, you will keep it for your own reflection; but, convinced of its

soundness, I feel it consistent to pure morality to lead them towards

it, to familiarize them to the idea that it is for their interest to cede

lands at times to the U.S., and for us to procure gratifications to our

citizens, from time to time, by new acquisitions of land.20

Citizenship required ceding land; that was the point. Theoretically,

the United States would legally acquire indigenous land with minimal

trouble if Indians would volunteer to be citizens or, failing that, could


somehow be coerced into it, and the imperial control of land could be

reconciled without difficulty to the U.S. “character” that so concerned

Knox. Indigenous resistance ruined this orderly vision. In the face of

this resistance, Jefferson’s appeal to the abstract realm of “pure moral-

ity” or, in the previously cited letter to Harrison, “pure humanity,”

reinforced the moral superiority and legitimacy of the United States

and its officials while justifying coercion.

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 behav-

ior.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, as if relations with indigenous

people were only a matter of individual feeling and the point is to deter-

mine who was genuine and who was not. Paternalism was the mode of

liberal imperialism, and professions of benevolence and sympathy pri-

marily reinforced the point of Euro-Americans’ moral superiority and

legitimacy. Jefferson’s problem was that he couldn’t quite yet disengage

recognition of indigenous ownership from the idea of that moral supe-

riority. His effusions of benevolence for Indians, sincere or not, were

rather more like a measure of his frustration. Forced to hang on to the

principle of indigenous ownership and faced with indigenous resistance

to selling, the only thing he could do, in practice, 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. Liberal imperialism didn’t become coherent until

the problem of indigenous ownership was successfully cleared away, in

the society generally and in the political system in particular.

propert y and savages

By the early nineteenth century, the idea that indigenous people

were exclusively hunters—who therefore, according to European law,

couldn’t claim possession of land over which they merely roamed—

and, moreover, always had been hunters was common.22 The idea of the

Indian as exclusively a hunter was part of a larger narrative of savagism

and civilization, the emergence of which Roy Harvey Pearce marks in

the 1770s, with the formation of the United States. He attributes the


rise of this grand, abstract narrative of civilization’s conflict with and

conquest of savagery in the United States in part to the influence of

Scottish Enlightenment historiography, which provided the four stages

theory of human history.23 If Enlightenment history posited progress

through the stages of human society from savagery to the culmina-

tion of European mercantile civilization, 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, where the

beginning and the end of human society were locked in a battle for

the future. Further, while Enlightenment history provided the frame

for a narrative in which the defeat of the past by the future must occur,

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),

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. This theory didn’t affect North American prac-

tices in the eighteenth century, but it did gain authority over that time

and permeated discussion about indigenous people by the end of the

century, including in historiography. By the early nineteenth century,

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.

While U.S. historians widely acknowledge the agriculturalist theory

of property in discussions of North American colonization, they haven’t

had much to say about the theory’s colonial North American history.24

Scholars in political philosophy and British colonial history have dis-

cussed that context at length, however, such that what historian David

Armitage calls the “‘colonial’ reading of Locke’s political theory” is well

established.25 Locke was, famously, secretary to Lord Shaftesbury and

the lords proprietor of Carolina colony and wrote the Fundamental

Constitutions of Carolina in 1669. He had a fairly extensive knowledge

of the colonies and their operation, amassing a substantial collection of

books on the topics of America and colonization and regularly ques-

tioning English settlers about their experiences. He also wrote exten-

sively on the theory and administration of the American colonies.26 In

working out his theory of property Locke implicitly and explicitly used


a North American colonial setting, where indigenous people served as the embodiment of man in the state of nature.

In chapter 5 of the Second Treatise Locke’s professed object was to jus-tify taking land without the consent of those who were on it: “I shall endeavour to shew, how Men might come to have a property in several parts of that which God gave to Mankind in common, and that without any express Compact of all the Commoners,” he wrote in the opening paragraph. He then introduced “the wild Indian” as the inhabitant of the state of nature, where the products of nature were the common pos-session of all, “as [fruits and beasts] are produced by the spontaneous hand of Nature,” a phrase that would be associated forever afterward with indigenous people in North America. Natural man had a prop-erty in whatever he could take from the spontaneous hand of nature in order to subsist, and natural law held that he could take as long as “there is enough, and as good left in common for others.” Labor, but specifically commercial agriculture, established property in land, which led to written laws and, ultimately, government. The consent of the commoners for enclosure of commonly held land in the state of nature was not required, first, because God “commanded [man] to subdue the Earth, i.e., improve it for the benefit of Life,” and, second, because “there was still enough, and as good left.” Indeed, “he that leaves as much as another can make use of, does as good as take nothing at all.” Those who protested such an arrangement were disputing God’s will. There was “no room for Controversie about the Title, nor for Incroachment on the Right of others,” Locke maintained, because “it was useless as well to carve himself too much, or take more than he needed.”27

The quarrelling and disputation Locke invoked draws one back to the historical context. With regard to the “good enough” qualifica-tion, 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, because if they were affected, he would have had to find some means of incorporating their consent into his theory.28 His theory depended on the erasure of indigenous ownership and political society in the first instance, despite the fact that, as Tully notes, he would have been well aware that indigenous people formed political societies.29 “As Families increased, and Industry inlarged their Stocks, their Possessions inlarged with the need of them,” Locke wrote. “They incorporated, settled themselves together, and built Cities, and then, by consent, they came in time, to set out the bounds of their distinct


Territories, and agree on limits between them and their Neighbours, and by Laws within themselves, settled the Properties of those of the same society.” Indians did none of this: as they didn’t desire to engage in com-mercial agriculture, they didn’t need written laws or money, and they didn’t form governments. The spontaneous hand of nature was all they needed or wanted, and they didn’t therefore own any land. This doomed them to an inferiority of their own making. Because Indians refused to engage in commercial agriculture, they “have not one hundredth part of the Conveniencies we enjoy: And a King of a large and fruitful territory there feeds, lodges, and is clad worse than a day labourer in England.”30 But once civilized Europeans properly used the land, Locke maintained, everyone, including Indians, benefited.

Mehta points out that the notion of the consent of the governed—a government founded on “rational, individual self-interest”—deterrito-rialized government so that political society had no connection to his-tory or geography. Since land had no meaning until labor was applied to it, it was “waste,” according to Locke, and thus, Mehta writes, “worthless in its materiality and inert in its sentimental force,” an idea that was a distinct departure from prevailing ideas about land in Europe.31 Locke can be seen to be theoretically cleaning up the messy colonial relations in which it was his business to be involved. Confronted with indige-nous people whose control of land and rules and practices, desires and demands had to be accommodated, despite their being not European and not Christian, imagining a state in which they had no political orga-nization and made no demands and had no claims must have been quite attractive as a thought experiment.

During the eighteenth century the agriculturalist theory of prop-erty circulated through Locke’s interpreters, who included legal and political philosophers such as William Blackstone and Emeric de Vattel, prominent clergymen in the British North American colonies, as well as British historian William Robertson, 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 cen-tury.32 Indians constituted the “rudest” form of human society, Robertson wrote, one that served as a living embodiment of “the infancy of social life.” Indians had an “abhorrence of labour natural to the savage state,” practicing an agriculture that was “neither extensive nor laborious” and meant only to supplement hunting and fishing. Indians didn’t dominate nature, as God commanded, nor did they distinguish themselves much


from animals, not enough to domesticate them: “They seem not to have been conscious of the superiority of their nature, and suffered all the animal creation to retain its liberty, without establishing their own authority over any one species.” Indians resembled beasts of prey “both in occupation and in genius.” “Being strangers to property,” Robertson observed, “they are unacquainted with what is the great object of laws and policy, as well as the chief motive which induced mankind to estab-lish the various arrangements of regular government.”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), a compendium of commentar-ies on Blackstone, Pennsylvania law, and a variety of other legal topics. A justice of the Pennsylvania Supreme Court, better known today as the author of the satirical novel Modern Chivalry (1815), Brackenridge dem-onstrates how Robertson’s conception of savagery, which allowed for some indigenous agriculture, came to be conceived as a purely hunter state, without agriculture of any kind, the better to be opposed to civ-ilization. He also heightened the moral judgment to be made against indigenous people for refusing to engage in commercial agriculture to the same purpose. Brackenridge maintained that, in hunters, “the pow-ers of genius are inactive, the arts and sciences remain unknown, and man continues to be an animal differing in nothing but in shape from the beasts of prey that roam upon the mountain.” Hunters were “not human” because their “way of life” violated God’s dictate that man should “till the ground.” Furthermore, “common reason has discov-ered that . . . it must be most agreeable to the Creator that the earth be stored with inhabitants; 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.” Indians being merely savage hunters in a state of nature, they could “therefore have but small pretence to a soil which they have never cultivated,” though they might claim “those spots of ground where their wigwams have been planted, and . . . so much of the soil around them as may be necessary to produce grain to support them.” He allowed that “perhaps they may have some priority of right to occupy a different country, should it be their choice to change the situa-tion where former circumstances may have placed them.”34

Any concession on the point was mainly owing to U.S. beneficence, however. Indians had no permanent claim to land, because when Europeans arrived, as in Locke, it was uncultivated “waste.”


The continent of North-America may therefore on the first discov-ery of the coast, by any civilized European nation, be considered as, the greater part of it, a vacant country and liable to become the property of those who should take the trouble to possess it. Nevertheless I do not mean to justify the waging an unnecessary war against the natives, or the extirpation of them altogether; but yet I would justify encroachment on the territory claimed by them, until they are reduced to smaller bounds, and under the necessity of changing their unpolished and ferocious state of life, for fixed habitations and the arts of agriculture. At the same time I think it still advisable to purchase from them, if it may be done conveniently; because it is a dictate of humanity to decline insist-ing on the full extent of any claim of property, if it may involve the shedding of the blood of those, who though sunk beneath the dignity of human nature, yet bear the name and are seen in the shape of men.35

Enlightenment history allowed Brackenridge and others to redefine indigenous people in North America as those who were hunter-sav-ages in the state of nature and who therefore couldn’t, by definition, own property. And, though Brackenridge gutted the actual meaning of indigenous ownership, he retained the mechanism, the apparently scrupulously fair purchase of land, that made U.S. actions legally and morally defensible, at least to Euro-Americans. From this perspective, treaties were only formalities, since the United States already owned the land, but they also necessarily reasserted U.S. 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. For some among the U.S. intelligentsia, at least, indigenous ownership had been successfully contained by the early nineteenth century. The last step was to make that containment legal.

institutionalizing the erasure of indigenous ow nership

The legalization came with Johnson and Graham’s Lessee v. William McIntosh (1823), which declared indigenous people savage hunters, not landowners, making them the equivalent of tenants merely occu-

pying their own land at the whim of the United States.36 The case is


the foundation of U.S. property law, the first case law students learn

today. It’s also one of the few cases of U.S. law to have had an interna-

tional impact during the nineteenth century in the British colonies on

the point that “native people had lost their lands by conquest.”37 It was

cited as recently in the 1980s in Australian and Canadian courts for

the same purpose.38 Interestingly, then, along with the colonial history

of the theory of property, 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.

In Johnson v. McIntosh John Marshall redefined the existing doctrine

of discovery such that, when representatives of European countries

set foot on North American soil, they automatically owned all of it, as

Brackenridge argued in 1814, because indigenous people were savages

who had been subjected to conquest. Occupancy no longer determined

ownership, as it had for British colonists; it was a temporary state indig-

enous people inhabited until the United States claimed its land. This was

a radical change in the law, and, according to recent archival research on

the case by legal historian Lindsay G. Robertson, Marshall didn’t intend

to make that radical change. Rather, 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.

After seeing what he had wrought, Lindsay Robertson argues, Marshall

attempted to negate Johnson in his subsequent Cherokee Nation cases,

Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), where

he specifically endorsed the principle of indigenous ownership and

political autonomy as recognized in treaties made with Indian nations.39

Nevertheless, Johnson was the justification that Georgia and other states

used to dispossess the Cherokees and other southern nations, and after

Marshall’s death in 1835 Jackson-appointed Supreme Court justices suc-

ceeded in overturning Worcester in five cases decided between 1836 and

1841.40 Johnson v. McIntosh institutionalized a liberal imperialism pecu-

liar to the United States, intentionally or not.

Lindsay Robertson tells the exceedingly convoluted backstory of the

Johnson decision, and in essence, he writes, it was a “collusive” case man-

ufactured 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 1763.41 While

the case was initiated in the late eighteenth century, when Marshall


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. Then, in order to evade the problem of indigenous ownership, he grafted the new imperial narrative of sav-agery and civilization onto a legal history that, both Banner and Lindsay Robertson agree, was almost wholly invented.

Using an extended passage from his own history of North America to shore up his argument, 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. The problem with this was, Lindsay Robertson points out, that Marshall based his argument on a reading of the significance of colonial charters to which he did not have access, citing only secondary sources consisting of an array of eighteenth-century histories of the United States, including William Robertson’s History of America.42 Banner describes Marshall’s reading of the colonial charters and his historiography in general as “flat wrong.”43 But Marshall was plain in his argument: discovery established the “power to grant the soil, while yet in possession of the natives”; fur-thermore, “these grants have been understood by all, to convey a title to the grantees, 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.44 In this Marshall practiced what legal historian David E. Wilkins calls “retrohistory,” a particular habit of the U.S. Supreme Court with respect to indigenous people, where the Court “retroactively [gen-erates] an interpretation of historical events that contradicts the actual occurrence.”45

Thereafter in his opinion Marshall sought to justify himself, and the paragraph where he turned from assertion to justification begins as follows:

We will not enter into the controversy, whether agriculturalists, merchants, and manufacturers, have a right on abstract princi-ples, to expel hunters from the territory they possess, or to con-tract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the justice of the claim

which has been successfully asserted.46


To start off, Marshall explicitly rejected the agriculturalist theory of

property. His use of “conquest” has struck legal scholars as odd, how-

ever. Banner notes that this was the first instance in which Marshall

used the word “conquest” and that it can’t be explained. “Conquest

was even less accurate than discovery as a theory denying Indians

ownership of their land,” he writes, noting also that invoking conquest

allowed Marshall to distance himself from his own decision, which he

“seem[ed] to have found a little distasteful.”47 Lindsay Robertson con-

curs, 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.”48

Or world history. Marshall insisted that Indians were “fierce sav-

ages” locked in violent conflict with civilized Europeans, and there was

no incorporating them as they were, as previous empires had incor-

porated populations subjected to conquest, because Indians were so

different and an anomaly in history—a prevalent theme in U.S. impe-

rial discourse.49 The notion of conquest is less inexplicable if you view

Marshall’s arguments through the emerging U.S. imperial ideology. If

savagery and civilization were locked in conflict in the United States,

the only possible, and inevitable, outcome was civilization’s conquest of

savagery. In 1789 Henry Knox wrote that there were two legitimate ways

to get indigenous land: purchase or conquest. One might imagine that

for Knox “conquest” was a concrete thing; he was a military man, after

all, and had just led troops through a revolution. Conquest as he under-

stood it was not possible in North America. But by 1823, because of the

problems that purchasing indigenous land presented (i.e., indigenous

people resisted selling), “conquest” had become an abstraction that

would be put into service justifying concrete actions of the type Knox

warned against, and it was implied as soon as Marshall invoked the idea

of savagery. This mythological conquest allowed Marshall to deny indig-

enous ownership without explicitly relying on the radical notion that

“agriculturalists . . . have a right . . . to expel hunters.” But once he intro-

duced the narrative of savagery in conflict with civilization, the agri-

culturalist theory of property that it had absorbed came along with it,

even if Marshall tried—not very forcefully—to deny that he was arguing

anything remotely controversial.

The idea that in the United States, because of the United States, civi-

lization must and would effect a conquest of savagery was the principal


discursive means by which indigenous ownership and therefore politi-

cal society were erased in the period. But that erasure wasn’t automatic

or immediate; the point still had to be made, at least early on in the

maturing of U.S. imperial ideology, in the late 1820s and early 1830s. The

contention over the grand narrative of savagery and civilization’s valid-

ity can be seen in two conflicting positions on Cherokee removal taken

in the pages of the North American Review in 1830 by Jeremiah Evarts, an

advisor to and defender of the Cherokees, and by Lewis Cass, then terri-

torial governor of Michigan and soon to be Andrew Jackson’s secretary

of war.

In January 1830 Cass argued for removal using Johnson as his ratio-

nale, drawing out the immediate political implications of the savage ver-

sus civilized narrative. He argued that, as savages and hunters, Indians

were the earliest form of human society; therefore, they couldn’t pos-

sibly exist in contact with the highest form of human society without

becoming corrupt, and the humane thing to do was to remove indig-

enous people from contact with civilization to some place where mis-

sionaries could work on them in isolation. This was the Jacksonians’

standard argument. The fact that Indians wouldn’t cooperate, no mat-

ter how benevolent Euro-Americans were, complicated Cass’s plans for

their improvement. “As civilization shed her light on them, why were

they blind to its beams?” he asked. It was a mystery. They “resisted . . .

every effort to meliorate their situation, or to introduce among them

the most common arts of life,” he wrote; they remained morally and

intellectually “stationary.”50 Clearly, their resistance was a character

flaw. While Cass was moving toward but was not quite yet at a biologi-

cal explanation of difference that would soon become dominant in the

United States, he relied principally on William Robertson’s discussion of

Indian character for his assertions.51

Following Marshall in Johnson, Cass argued that it had always been

the case that Europeans claimed title to all North American land on first

seeing it. If European governments claimed title to indigenous land on

first sight, Cass wrote, “some peculiar circumstances must have existed

to vindicate a claim, at first sight revolting to the common justice of

mankind.” Like Marshall, Cass introduced a new reading of North

American colonial history, and it seems to have made him a little uneasy.

And, as in Marshall’s Johnson decision, the peculiarity was all owing to

Indians’ status as savages. They were hunters who merely roamed over


their land, to which agriculturalists had a superior claim because every-

one acknowledged that God willed Christians to dominate and subdue

the earth, and Indians clearly did not, and therefore Europeans right-

fully claimed Indian land. “There can be no doubt,” Cass insisted, but

“that the Creator intended the earth should be reclaimed from a state of

nature and cultivated; that the human race should spread over it, pro-

curing from it the means of comfortable subsistence, and of increase

and improvement.”52

There was plenty of doubt about this story, however. In October

1830 Jeremiah Evarts, a lawyer and secretary of the American Board

of Commissioners for Foreign Missions, answered Cass with the

Cherokees’ argument that Marshall’s discovery doctrine was based on

historical untruths, that Britain and the United States had unmistakably

recognized indigenous ownership and autonomy, and that the narrative

of inevitable conflict between savage and civilized was absurd in light of

historical facts.

On the subject of the rights of the American aborigines, there

has been much loose reasoning, and some quite as loose moral-

ity. It will be found, however, that respectable writers have more

frequently been led into error by stating extravagant cases, and

raising imaginary difficulties, than by examining the foundation

of title to lands, or by looking at facts, as they took place on the

settlement of this country.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,

and partly because they were commonly in the habit of using land

for tillage, which was not generally done by the original inhabitants

of America.” He observed that Europeans had a right to claim unoc-

cupied land but nothing more and asked, “How is it conceivable, that

the mere discovery of a country should give the discoverers a title para-

mount to the title of the natives, whose ancestors had been in posses-

sion from time immemorial?” “The mere statement of the case shows

the inherent absurdity of a claim, which has been so often made, that

many people seem to think it reasonable,” he continued.54

At the very least the controversy demonstrates that indigenous own-

ership and its implications were widely recognized in the United States

and that the idea, argued by Brackenridge and by Marshall in Johnson


and held to be a fact by many contemporary scholars, that Euro-

Americans always believed that Indians were hunters and therefore had

no real claim to their own land is just not true. 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, because,

as Evarts himself pointed out, the narrative only had to be endlessly

repeated by those who benefited from it for it to appear to be true. He

went on, in great detail, to argue that indigenous people had occupied

the land, that their autonomy had been recognized in numerous trea-

ties made by the United States and its imperial predecessors, and that

the only moral and legal position for the United States was to recognize

indigenous ownership and autonomy. Evidently, this essay had its influ-

ence on John Marshall, who made some of the same points in Worcester

v. Georgia and who in that decision seems to have advocated a return

to recognition of indigenous ownership as a means of establishing U.S.

legitimacy. But that wasn’t enough to stop the “blood and injustice” of

imperial expansion or the power of the imperial ideology that fueled it.

benevolence and delusion

Indigenous ownership was the problem that faced U.S. imperialism at

the turn of the eighteenth century, and it was complicated by how U.S.

nationalist discourse incorporated the recognition of indigenous own-

ership as a signifier of moral and political superiority. The solution, as

outlined here, was to redefine indigenous people as those who couldn’t

own land or form legitimate governments because they were savages. If

recognizing indigenous ownership established a relationship of rough

equality between the United States and indigenous nations, the new

relationship was one of political oppression, but oppression masked by

imperial benevolence. Accordingly, the proof of U.S. moral and politi-

cal superiority was no longer recognition of ownership but the benev-

olence and paternal care expressed for Indians as backward children.

Imperial benevolence and its many cultural forms—picturesque rep-

resentations of ideal (dead) indigenous people, 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 supe-


rior imperial violence—it was only doing what was right for the poor

benighted Indians. It also gave colonial-imperial subjects a positive

means of understanding their own place in the system. If any indigenous

person embodied savagery, every Euro-American embodied civilization,

and to really be civilized required feeling properly, benevolently, toward

those poor benighted Indians. This doesn’t mean that everyone did, of

course, although an orientation toward benevolence would seem to be

the case, especially with political and cultural elites. Having a popula-

tion that could learn to feel better about itself for having the right feel-

ings would also seem to be much more effective in the normalization

of imperialism than just hating Indians as racially other. 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. Americans were civilized, not savages, and the salient

point about savages was that they didn’t and couldn’t own land.

The philosopher Charles Mills proposes a “racial contract” as a mir-

ror to the theoretical social contract, arguing that as the social contract

describes a society founded on consent, the racial contract describes a

society founded on exclusion (and within this paradigm the remedy

for indigenous people is not inclusion but recognition). As a part of his

analysis he posits an “epistemology of ignorance”: “One has to learn to

see the world wrongly,” he writes, “but with the assurance that this set

of mistaken perceptions will be validated by white epistemic authority,

whether religious or secular.” To live in a racial polity, white individu-

als must learn to misinterpret what they experience, so that, in the case

of indigenous people, every indigenous person, every event, everything

associated with them must be understood in light of this narrative of

savagery and civilization. “Part of what it means to be constructed as

‘white’ is a cognitive model that precludes self-transparency and genu-

ine understanding of social realities,” Mills continues. “White signatories

[of the racial contract] will live in an invented delusional world, a racial

fantasyland.”55 It is an “invented delusional world” in the nineteenth-

century United States: consider the bizarre nature of actually believing

that savagery and civilization—abstractions—were battling it out in the

United States itself, and that, in some way, you yourself were a part of

this battle, and that every indigenous person whom you might in some

way encounter embodied this world-historical phenomenon and indeed

was a walking abstraction—proof, one way or another, that conquest


was at hand. On the face of it, anyway, 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. It’s a bit breathtaking—breathtakingly insane—when you think

about it. At least from those who’ve left a record, it’s clear that this is the

way that many people in the United States in the nineteenth century

thought, as a matter of course, without self-consciousness, about them-

selves and their country. The point is, they had to.

The expressions of benevolence or sympathy for or sentimental rep-

resentations of Indians, no matter how “sincere” they may appear to be,

are never not ultimately about political oppression and violence. To put

it another way, expressions of benevolence are never only expressions

of individual feeling; they are always part of a larger system of thought.

The fact that many scholars still often read benevolence, sympathy, and

sentiment directed at indigenous people as merely individual is only

an effect of the depoliticizing of indigenous people in U.S. imperialist

thought. Indigenous people have understood how this system worked

and have been describing it more or less from the moment they started

writing in English. Toward the end of his Eulogy on King Philip (1836)

William Apess mocked Andrew Jackson:

“You see, my red children, that our fathers carried on this scheme

of getting your lands for our use, and we have now become rich

and powerful; and we have a right to do with you just as we please;

we claim to be your fathers. And we think we shall do you a great

favor, my dear sons and daughters, to drive you out, to get you

away out of the reach of our civilized people, who are cheating you,

for we have no law to reach them, we cannot protect you although

you be our children. So it is no use, you need not cry, you must go,

even if the lions devour you, for we promised the land you have

somebody else long ago, perhaps twenty or thirty years; and we

did it without your consent, it is true. But this has been the way

our fathers first brought us up, and it is hard to depart from it;

therefore, you shall have no protection from us.”56

His analysis was somewhat compressed, but Apess pretty much covered

the principal issues in U.S. imperialism: the redefinition of preemption;

the erasure of indigenous consent and autonomy; the insistence that it

was all inevitable, no one’s fault, and all for everyone’s good besides;


and, finally, the maddeningly cloying professions of paternal benevo-

lence in which such violence was delivered.

The abstractions of U.S. imperial discourse allow it to operate par-

ticularly insidiously, as William Appleman Williams pointed out, and

imperial delusion persists. The narrative of civilization’s conquest of

savagery has come in handy, for example, when the U.S. government has

wanted to justify taking land or resources from some other sovereign

nation around the world without its consent. Since government has no

inherent connection to land, history, or tradition, the universalized U.S.

conception of democracy—the current analogue of “civilization”—can

be projected onto any place. “Democracy” can then be metaphorically

or sometimes literally dropped onto another sovereign nation, and if

those who are dropped upon protest, then they must not be morally

fit for this most perfect form of government. If the people have reason,

then they will acquiesce to this benevolent introduction of civilization;

if they don’t, as Locke himself put it, then they “may be destroyed as a

Lyon or a Tyger, one of those wild Savage Beasts, with whom Men can

have no Society nor Security.”57 This narrative makes sense to Euro-

Americans because it is part of their imperial heritage. It’s an absurd

and dangerous way of thinking, but it’s normal for Euro-Americans,

and it became normal because of the history of imperial relations with

indigenous people in North America.

notes

1. For example, see Linda Colley, “Imperial Trauma: The Powerlessness of

the Powerful Part 1,” Common Knowledge 11, no. 2 (2005): 198–214; Bernard

Porter, Empire and Superempire: Britain, America, and the World (New Haven,

CT: Yale University Press, 2006); and Neil Smith, The Endgame of Globaliza-

tion (New York: Routledge, 2005).

2. William Appleman Williams, Empire as a Way of Life (New York: Oxford

University Press, 1980).

3. See the critique of contemporary advocates of liberal imperialism, such as

Niall Ferguson, in Chalmers Johnson, Nemesis: The Last Days of the American

Republic (New York: Metropolitan Books, 2006), 71–89. Writers on the history

of liberalism often remark that the term “liberalism” itself dates from the early

nineteenth century and was applied retroactively. They also point out that lib-

eralism and imperialism are “mutually constitutive” (David Armitage, “John

Locke, Carolina, and the Two Treatises of Government,” Political Theory 32, no.


5 [2004]: 602), or, as Uday Singh Mehta puts it, “the urge to [imperialism] is

internal” to liberalism (Liberalism and Empire: A Study in Nineteenth-Century

British Liberal Thought [Chicago: University of Chicago Press, 1999], 20).

4. Mehta, Liberalism and Empire, 30–31.

5. Mehta, Liberalism and Empire, 30–31.

6. For recent works discussing U.S. imperialism that either reiterate the

liberal consensus on Indians or leave out indigenous history altogether see

Walter Nugent, “The American Habit of Empire, and the Cases of Polk and

Bush,” Western Historical Quarterly 38, no. 1, http://www.historycoopera

tive.org/journals/whq/38.1/nugent.html, accessed April 21, 2007; Sandra M.

Gustafson, “Histories of Democracy and Empire,” American Quarterly 59, no.

1 (2007): 107–33; Thomas Bender, A Nation among Nations: America’s Place in

World History (New York: Hill and Wang, 2006); and Charles S. Maier, Among

Empires: American Ascendancy and Its Predecessors (Cambridge, MA: Harvard

University Press, 2005). This is just a small sampling.

7. Stuart Banner, How the Indians Lost Their Land: Law and Power on the

Frontier (Cambridge, MA: Harvard University Press, 2005), 20, 43, 29.

8. See Dale Turner, This Is Not a Peace Pipe: Towards a Critical Indigenous

Philosophy (Toronto: University of Toronto Press, 2006).

9. Lindsay G. Robertson, Conquest by Law: How the Discovery of America

Dispossessed Indigenous People of Their Lands (Oxford: Oxford University

Press, 2005), 99–100.

10. Marshall v. Clark, Va. S. Ct. (1791).

11. Banner, How the Indians Lost Their Land, 163.

12. U.S. Senate, Report from Henry Knox, Secretary of War, to the President

of the United States, Relating to the Several Indian Tribes, 1st Cong., 1st sess.,

August 7, 1789, 13.

13. U.S. Senate, Report, 13, 53.

14. U.S. Senate, Report, 13, 53.

15. See Robert M. Owens, “Jeffersonian Benevolence on the Ground: The

Indian Land Cession Treaties of William Henry Harrison,” Journal of the Early

Republic 22 (Fall 2002): 405–35.

16. Bernard Sheehan, Seeds of Extinction: Jeffersonian Philanthropy and the

American Indian (New York: W. W. Norton, 1974), 165–66.

17. Anthony F. C. Wallace, Jefferson and the Indians: The Tragic Fate of the

First Americans (Cambridge, MA: Harvard University Press, 1999), 23–24.

18. Thomas Jefferson to William Henry Harrison, February 27, 1803, in

Political Writings, ed. Joyce Appleby and Terrence Ball (Cambridge: Cam-

bridge University Press, 1999), 525.

19. Thomas Jefferson to Benjamin Hawkins, February 18, 1803, in Appleby

and Ball, Political Writings, 522.


20. Jefferson to Hawkins, 522.

21. See, for example, Peter Onuf, Jefferson’s Empire: The Language of Ameri-

can Nationhood (Charlottesville: University of Virginia Press, 2000), espe-

cially chap. 1; and Jeffrey Ostler, The Plains Sioux and U.S. Colonialism from

Lewis and Clark to Wounded Knee (Cambridge: Cambridge University Press,

2004), 13–15.

22. Banner, How the Indians Lost Their Land, 152, 168. Banner cites both

Arneil and Tully but dismisses their arguments; he seems to think they are

arguing that Locke’s theory of property was the legal norm in the British North

American colonies, which they are not (47–48). Banner consciously narrows

his focus to property alone and resists addressing the political valence of rela-

tions between indigenous people and Euro-Americans, 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.

23. Roy Harvey Pearce, Savagism and Civilization: A Study of the Indian and

the American Mind (Berkeley: University of California Press, 1988), 4, 89, 91.

24. Barbara Arneil, John Locke and America: The Defence of English Colo-

nialism (Oxford: Clarendon Press, 1996), 15–16.

25. Armitage, “John Locke,” 603.

26. James Tully, “Rediscovering America: The Two Treatises and Aborigi-

nal Rights,” in An Approach to Political Philosophy: Locke in Contexts (London:

Cambridge University Press, 1993), 140–41, 145–48; Bhikhu Parekh, “Liberal-

ism and Colonialism: A Critique of Locke and Mill,” in The Decolonization of

the Imagination: Culture, Knowledge, and Power, ed. Jan Nederveen Pieterse

and Bhikhu Parekh (London: Zed Books, 1995), 83.

27. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge:

Cambridge University Press, 2000), 286, 288, 291, 302.

28. James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity

(Cambridge: Cambridge University Press, 1995), 74.

29. Tully, “Rediscovering America,” 149–51. See also Vicki Hsueh, “Giving

Orders: Theory and Practice in the Fundamental Constitutions of Carolina,”

Journal of the History of Ideas 63, no. 3 (2002): 425–47.

30. Locke, Two Treatises, 295, 296–97.

31. Mehta, Liberalism and Empire, 120, 125, 126.

32. Arneil, John Locke and America, 182–83; Pearce, Savagism and Civiliza-

tion, 82–91.

33. William Robertson, The History of America (Edinburgh: Stirling and

Slaked, 1819), 51, 115, 121, 127–29.

34. Hugh Henry Brackenridge, Law Miscellanies: An Introduction to the

Study of Law (Philadelphia: P. Byrne, 1814), 124, 125.


35. Brackenridge, Law Miscellanies, 125.

36. Sidney L. Harring, White Man’s Law: Native People in Nineteenth-Cen-

tury Canadian Jurisprudence (Toronto: Published for the Osgoode Society for

Canadian Legal History by the University of Toronto Press, 1998), 89.

37. Johnson and Graham’s Lessee v. William McIntosh, 21 U.S. (8 Wheat.)

543 (1823).

38. Robertson, Conquest by Law, 144.

39. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia,

31 U.S. (6 Ret.) 515 (1832); Robertson, Conquest by Law, xi–xii.


41. Early on, Robertson writes, 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 per-

tained to India, and the plaintiffs merely added an n (Conquest by Law, 4).

42. Robertson, Conquest by Law, 100–101.


44. Johnson v. McIntosh, 574.

45. David E. Wilkins, American Indian Sovereignty and the U.S. Supreme

Court: The Masking of Justice (Austin: University of Texas Press, 1997), 303.


47. Banner, How the Indians Lost Their Land, 185, 186.

48. Robertson, Conquest by Law, 112–13.


50. Lewis Cass, review of Documents and Proceedings Relating to the Forma-

tion and Progress of a Board in the City of New York, for the Emigration, Preser-

vation, and Improvements of the Aborigines of America, North American Review

30, no. 66 (1830): 72.

51. See Reginald Horsman, Race and Manifest Destiny: The Origins of Ameri-

can Racial Anglo-Saxonism (Cambridge, MA: Harvard University Press, 1981);

and James Brewer Stewart, “SHA Roundtable: Racial Modernity,” Journal of

the Early Republic 18, no. 2 (1998): 181–237.

52. Cass, review, 76, 77.

53. Jeremiah Evarts, review of Speeches on the Indian Bill, North American

Review 31, no. 69 (1830): 397.

54. Evarts, review, 397.

55. Charles W. Mills, The Racial Contract (Ithaca, NY: Cornell University

Press, 1997), 18.

56. William Apess, Eulogy on King Philip, in On Our Own Ground: The

Writings of William Apess, a Pequot, ed. and introduction by Barry O’Connell

(Amherst: University of Massachusetts Press, 1997), 307. The most recent edi-


tion of the standard Norton Anthology of American Literature describes Apess

as a “tragic figure” who felt “betrayed” by U.S. “culture” (“William Apess,”

Norton Literature Online, http://www2.wwnorton.com/college/english/naal7/

contents/B/authors/apess.asp, accessed December 3, 2007).

57. Locke, Two Treatises, 274. See also Parekh, “Liberalism and Colonial-

ism,” 88; Tully, “Rediscovering America,” 143–45.

32.3.Konkle_Indigenous Ownership and the Emergence of U.S. Liberal Imperialism

Documents

Transcript of 32.3.Konkle_Indigenous Ownership and the Emergence of U.S. Liberal Imperialism