The Spaniards were unable to exterminate the Indian race by those unparalleled atrocities which brand them with indelible shame, nor did they succeed even in wholly depriving it of its rights; but the Americans of the United States have accomplished this twofold purpose with singular felicity, tranquilly, legally, philanthropically, without shedding blood, and without violating a single great principle of morality in the eyes of the world. It is impossible to destroy men with more respect for the laws of humanity.(1)
One of the most critical deprivations that the American Indians suffered at the hands of the United States was the loss of their lands. Within two centuries of the first European settlements in North America, the newcomers held title to almost every acre of the continent. At the root of most land titles in America today sits a federal patent. Government title, in turn, flows from "[t]he great case of Johnson v. M[`]Intosh,"(2) which held that the United States has the exclusive right to extinguish Indians' interests in their lands, either by purchase or just war. M'Intosh was consistent with a long and uninterrupted line of statutes, regulations, and proclamations that barred private purchases of land from the Indians.
Most discussion of M'Intosh, and, more generally, of the larger process of expropriating North America from the Indians, has focused on normative questions about the relative evil or benevolence of the invading Europeans. De Tocqueville, contrasting Spanish "atrocities" with American legality and philanthropy, expressed the benevolent view that, unsurprisingly, was quite common in early America. E. de Vattel, a prominent eighteenth-century scholar of international law, noted with favor the American practice of buying lands even where, strictly speaking, the law did not require it:
[W]e can not but admire the moderation of the English Puritans who were the first to settle in New England. Although they bore with them a charter from their sovereign, they bought from the savages the lands they wished to occupy. Their praiseworthy example was followed by William Penn and the colony of Quakers that he conducted into Pennsylvania.(3) Other commentators, while also maintaining that Europeans expropriated with the best of intentions, at least tried to come to terms with the undeniably detrimental effect on Indians. "No government ever entertained more enlightened and benevolent intentions toward a weaker people than did that of the United States toward the Indian, but never in history, probably, has a more striking divergence between intention and performance been witnessed."(4)
Despite this failure to translate intent into effective action, leading scholars of this century have concurred with this sympathetic view. Felix Cohen, the founder of American Indian law as a distinct and scholarly field of study, noted that America paid for almost every square foot of the nation. He thus argued that "[w]e are probably the one great nation in the world that has consistently sought to deal with an aboriginal population on fair and equitable terms. We have not always succeeded in this effort but our deviations have not been typical."(5) Francis Paul Prucha, a leading historian of relations between the United States and the Indians, has argued that treaties and statutes evidence a sincere desire to protect Indian rights.(6) Another historian, Don Russell, after debunking the myth that Indian massacres played a significant role in expropriating the continent by exterminating its aboriginal inhabitants, argued that the United States behaved with at least relative humanity. "Much of world history tells of the movements of peoples that infringe on other peoples. Rarely have the infringed upon been treated with more consideration and humaneness than was the American Indian."(7)
The opposite view, that European laws and practices amounted to a patently immoral land-grab, dates back at least to the years immediately following the decision in M'Intosh. Although Justice Joseph Story signed on to Chief Justice Marshall's unanimous opinion in the case, in a speech given five years later he argued that the case violated both "natural law and moral right."(8) A later monograph labeled the opinion as "imperialism" and cast the result as facially immoral:
[A]bove all, [M'Intosh] involved a flat question of right and wrong. It was a decision which seems to have altogether ignored property rights which had solemnly vested.... We are then to inquire whether or not the conscience of the world will today respond affirmatively to the proposition that discovery and conquest alone give a title as against owners and occupants of property ... whether, in a word, that which is morally wrong can be legally and politically right.(9) A growing number of scholars, reexamining the historical record from the Indian perspective, have cast M'Intosh and the larger process of expropriating Indian lands in even darker terms. A particularly bleak account of European treatment of the Indians observes that those "reaching for illicit power customarily assume attitudes of great moral rectitude to divert attention from the abandonment of their own moral standards of behavior.... All conquest aristocracies have followed such paths. It would be incredible if ours had not."(10) Another scholar, Vine Deloria, avers that "Indians have not accepted the mythology of the American past which interprets American history as a sanitized merging of diverse peoples to form a homogeneous union. The ... abuses of the past and present [are] too vivid, and the memory of freedom [is] too lasting."(11)
After a thorough study of the intellectual antecedents to the opinion, a recent work classifies M'Intosh as part of a
discourse of conquest, which denies fundamental human rights and self-determination to indigenous tribal peoples.... [This discourse asserts] the West's lawful power to impose its vision of truth on non-Western peoples through a racist, colonizing rule of law. ... [T]he United States acquired a continent "in perfect good faith" that its wars and acts of genocide directed against Indian people accorded with the rule of law. ... ... [T]he West's archaic, medievally derived legal discourse respecting the American Indian is ultimately genocidal in both its practice and its intent.(12) For both sides of this debate, law plays a central role. Those with a dark view of the process of expropriation argue that European settlers used (or perhaps more accurately, abused) laws either with specific intent to take land and exterminate the aboriginal population, or with deliberate indifference to these inevitable results of their policies. Observers who view European actions as relatively benevolent insist that legal rules softened the process of expropriation.
This Article makes no attempt to resolve this long-running and well-known normative debate. Moreover, neither view is consistent with even the most basic facts in the legal and historical record. Massacres, and even battles, were quite rare in the process of expropriating Indian lands--a fact difficult to harmonize with a theory of intentional genocide. On the oilier hand, it is hard to reconcile a benevolent view of the expropriation process with the end result--the knowing and intentional expropriation of a continent accompanied by the destruction of tribe after tribe.
This Article presents a view more consistent with the somewhat schizophrenic legal and historical record. Drawing on law and economics, it explains the process of expropriating Indian lands in terms of minimizing the costs, broadly defined (for example, value of lives, risks borne, and time spent on unproductive warfare), to the European colonizers. Simply put, customs and legal rules promulgated by colonial and later American courts and legislatures promoted not simply expropriation (right or wrong), but efficient expropriation. The thesis of this Article is that colonists established rules to minimize the costs associated with dispossessing the natives. If it had been cheaper to be more brutal, then Europeans would have been more brutal. Such brutality, however, was not cheap at all.
Likewise, if it had been cheaper to show more humanity, the Europeans would have exhibited more, such as extending Indians full rights to sell (or keep) their land. Such a legal rule, however, would have been far from cheap. Johnson v. M'Intosh was an essential part of the regime of efficient expropriation because it ensured that Europeans did not bid against each other to acquire Indian lands, thus keeping prices low.(13) The M'Intosh rule was neither the beginning nor the end of the means by which Europeans obtained American soil at minimal cost. Part II of this Article places the rule of M'Intosh in broader context. It explains why wars of conquest were unappealing and rare, and how disease and the destruction of the Indians' stocks of wild game played a much larger role in efficient expropriation.(14) It then explains how legal rules channeled settlement to maximize the effect of these "natural allies" and shows how the Europeans' greater ability to maintain a united front yielded a set of tools for efficient expropriation, from M'Intosh to powerful advantages in negotiation.(15)
Despite some disagreements, this Article's law and economics interpretation of American-Indian relations owes a significant intellectual debt to recent articles by Terry Anderson and Fred McChesney,(16) and by Douglas Allen.(17) Anderson and McChesney convincingly demonstrate that the United States took few acres by direct force, arguing that the price paid for Indian lands depended on what each side expected to happen in the event of conflict. This Article questions Anderson and McChesney's dichotomy between taking lands by raid (force) and by trade, suggesting instead that there was a continuum of techniques between these two poles. The United...