In my last post I made reference to the verbal gymnastics of the Supreme Court in justifying the seizure of Indigenous territories by the United States. And I linked to some things I wrote about an early case, Fletcher v. Peck, 10 U.S. 87 (1810) in a previous post, from January. But that earlier post had a slightly different focus, so I want to revisit that Court decision here. It is an example of what I mean when I say that the Declaration of Independence was, among other things, a license for private land speculators to use the US Army to back them up when they were selling Native land that they decided was theirs to sell: to steal cultivated farms, houses, and community buildings from Native people; to force them, at gunpoint, to move hundreds of miles to land occupied by other Native people - land to which the white speculators also had no right. It is what I mean when I say that the US Army fought against Indigenous peoples for over a hundred years after the American Revolution to get actual (and not just pretended) sovereignty over what we now think of as the United States.
This is as good a place as any to emphasize that phrase: “cultivated farms, houses, and community buildings.” If you, the reader, received a typical education in US history you will have been left with the impression that Native Americans simply roamed freely over their territories. People frequently post maps that unintentionally reinforce that misconception by putting tribal names on ill-defined areas. In contrast, I am including here a map showing the area that is western New York State today, and that people imagine was already New York 250 years ago. It presents the settlements as they were shortly before the American Revolution. Note that every one of those triangles is an Indigenous town, whether Onondaga, Cayuga, Seneca, or Oneida. The squares represent British forts.
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| from Atlas of Great Lakes Indian History, Helen Hornbeck Tanner |
Do you notice what a different impression this gives? This is clearly the territory of the Haudenosaunee Confederation, regardless of what the British or the Americans wanted to pretend. I won't even show the typical maps of "The Thirteen Colonies" or "Native American Territories" because you have already seen them and I don't want to reinforce their misleading impression.
Another way of understanding just how developed these Native towns and farms were is by looking at Army records of their destruction. In 1779, during the Revolutionary War, George Washington ordered General John Sullivan and one-third of the Continental Army to raid that area and destroy the homes and crops. You will notice that I emphasize the number of troops Washington committed at a time when he was fighting the mighty British Army. It shows how difficult he thought the task would be, but also how important. The Continental troops burned forty towns, 160,000 bushels of corn, and an uncounted volume of fruits and vegetables. These were settled, well-developed communities. I’ll quote the US National Parks Service website:
Many of the troops were shocked upon entering these villages. They found not the crude bark huts or longhouses of "Savages," but instead orderly rows of houses built of hewn timbers and frame houses with windows. Well-cultivated vegetable fields extended out from the villages, along with extensive apple, peach, and cherry orchards. Many of these Indian villages rivaled or surpassed the towns that the soldiers had come from.
Again, I hope this changes your understanding of what it meant to steal Native land and why I employ a metaphor about some Russian oligarch seizing your house to build a theme park. And the same things were true about the Native lands seized in the south. Those thefts were not about building settlements in the forest. They were about white people taking Natives' houses, farms, orchards, and businesses. They were even about stealing furniture and utensils.
Back to Fletcher v. Peck. In 1795 the state of Georgia claimed lands west of its modern boundaries that included much of what is now Alabama and Mississippi, what was then called the Yazoo District. I say “claimed” not just because other states had conflicting claims, but also because it was the home of Choctaw, Chickasaw, and Muskogee Creeks who had never relinquished their own claims to that land, claims that were backed up by the fact that they actually lived there, and had been living there as long as anybody could remember, that their houses and towns and farms were there, that the graves of their ancestors were there. The Georgia State Legislature had no particular way of actually pressing this claim and so they knew they would soon have to cede that territory to the United States government. But before acknowledging it as US - not Georgia - territory the Georgia State Legislature sold that land (land they did not control) to real estate speculation companies for a little over a penny an acre, which was a ridiculously low price even then. The sale wasn’t just fraudulent because Georgia didn’t really own or control the land. It wasn’t just fraudulent because the price suggested a crony deal. It was fraudulent because virtually every member of the legislature who voted for it either were shareholders in the purchasing companies, or received bribes for their votes, or both. The scandal was so notorious that almost every one of them were kicked out by the voters in the next election. The new legislature immediately repudiated the sale, going so far as burning all copies of the original law in public.
In light of this repudiation, did the contested land belong to the speculators or not? The very public nature of the scandal made it hard for them to rely on public sympathy if they sued. But what if a third party brought suit? Somebody who was “innocent” because they purchased Yazoo land from the speculators without knowing about the scandal. In order to make such a case, the speculators arranged a sale to a collaborator, arranged for that purchaser to sue them (the speculators), and even hired an attorney to represent the man suing them!
The first thing you should know is that the attorney for the “defendant” (the speculators) was himself one of those speculators, a member of Congress who left office in order to argue the lawsuit and who was subsequently made a Justice of the Court less than a year later. The second thing you should know is that Chief Justice John Marshall, while not directly involved in the Yazoo lands, was a speculator in other Native lands for which there was also no actual title. You will not be surprised, then, to learn that the Court decided in favor of the speculators, insisting that the new Georgia legislature had no authority to nullify a sale by the previous legislature, regardless of how much bribery and self-dealing there had been in making that sale. But there was no discussion of whether Georgia had a right to sell Native land. That is simply assumed!
What the Court could never do through its decision was make the Yazoo district available to white settlers in the real world. First the US Army had to fight a series of wars against the Native inhabitants. Then Congress had to pass an Indian Removal Act to bar the Indigenous people from their own homes. Then the Army had to go again to actually remove them.
And that is not the end of the federal subsidy to the speculators. They didn’t really want the land themselves, of course. They just wanted to profit on the difference between the penny an acre they paid and the price they could get from the white people who did want to move there. And those people couldn’t possibly afford it without being offered credit by the US government. More on that in another post.
