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Abstract

  1. Top of page
  2. Abstract
  3. Introduction
  4. Historical Accounts and Methods
  5. Erasing Indian Lands
  6. Missouri River Corridor
  7. Indian Farmer Castaways
  8. Discussion
  9. Conclusion
  10. Appendix: Condensed List of Damages to Indian Farmers and Ranchers, as Alleged in Keepseagle v. USDA
  11. References

Over the past five centuries, Europeans have enclosed the global commons and, in the process, incorporated whole continents of aboriginal land. Some scholars argue that Indians in North America were spared the ravages of compulsory enclosure, having sold their land to non-Indians through willing-seller transactions and benefited from federal government trust and treaty policies. Moreover, where enclosure existed, it is widely believed to have ended as Indians converted to agriculture, thereby internalizing hard work, sedentary life styles, and allotted ownership. This study disputes such historical accounts and suggests a wave of new enclosures in accordance with recent U.S. Department of Agricultural minority lending policies. By discriminating against Native American farmers and ranchers, the federal government has enabled the erasure of title, livelihood opportunities, and cultural identity among Indian farming and ranching communities. Evidence from the Fort Berthold Reservation of North Dakota reveals the complex complicity of the federal government in Indian land erasure and points to a changing reservation geography that, even now, makes castaways of agrarian Indians.


Introduction

  1. Top of page
  2. Abstract
  3. Introduction
  4. Historical Accounts and Methods
  5. Erasing Indian Lands
  6. Missouri River Corridor
  7. Indian Farmer Castaways
  8. Discussion
  9. Conclusion
  10. Appendix: Condensed List of Damages to Indian Farmers and Ranchers, as Alleged in Keepseagle v. USDA
  11. References

There can be little doubt that aboriginal land seizures of the past five centuries qualify, in terms of expansiveness, material value, and cultural collapse, as the mother of all enclosures.1 Aboriginal peoples, once tenants-in-common across continents, have been dispossessed of their homelands by doctrines of discovery, natural law, conquest, salvation, and civilization. The Europeans' “cartographic eye” became an optic for erasing the living spaces of non-European peoples, the narratives of the former needing no substantiation and those of the latter never being adequate to avoid the juggernaut of dispossession (Ryan 1996:149).

Relevant to this conflict between indigenous peoples and settler communities is a theory proposed by Stanley Lieberson half a century ago. He challenged an earlier assertion made by Robert Park (1950:150) that race relations were dominated by a cycle of events “which tends to everywhere repeat itself.” Instead, Lieberson theorized, race relations between migrant (settler) and indigenous populations play out in at least two cycles. In the first, settlers are superordinate and impose a high degree of assimilation and institutional conformity on indigenous populations. In the second, settlers are subordinate (fewer in numbers, less well equipped to cope with new environments, and dysfunctionally dependent on their old institutions). Lieberson (1961:904) summarized:

In short, when two populations begin to occupy the same habitat but do not share a single order, each group endeavors to maintain the political and economic conditions that are at least compatible with [their] institutions existing before contact. These conditions … are often conflicting. European contacts with the American Indian, for example, led to the decimation of the latter's sources of sustenance and disrupted religious and tribal forms of organization.

Lieberson went further. His interests extended to what conditioned interracial violence or its absence. His study concludes that, in cases where Native people were superordinate at the time of contact, there was less likelihood of long-term conflict and that “warfare or racial nationalism—when it does occur—tends to be in societies where the indigenous population is subordinate” (910).

Lieberson is not alone in appreciating that indigenous populations can be subordinate or superordinate in colonization encounters and that this difference can condition ensuing conflict. Legal historian Stuart Banner (2005) contrasts the case of Australia (Native subordination) with that of North America (Native superordination), both being cases of British colonization. In the Australian case the British declared the continent uninhabited and unowned (terra nullius), and extinguished aboriginal land rights with the stroke of a pen (Geisler 2012). In the American case the British were outnumbered and (temporarily) at the mercy of Indian nations. Conquest was a costly option; they went to great lengths to purchase lands both as good neighbors and to impress upon other Europeans that they had legal title to land and the “bill of sale.” Herein, Banner seems to subscribe to Lieberson's conflict axiom.

But Banner departs from Lieberson in an important way. In his 2005 book How the Indians Lost their Land, he allows for a reversal of the superordination–subordination relationship over time, a power shift that unfolded relatively early in the settler–indigenous relationship. Despite this change, Banner downplays conflict in the alienation of the continent that ensued. Instead, in his view, Indians lost their much of their land via market mechanisms rather than by force. The “good behavior” evoked by the superordinate position of Native peoples at the outset did not fade when the British and later the Americans became superordinate. More often than not, Banner argues, they bought rather than seized Native land.

This iconoclasm—that Indian land alienation was more voluntary than coerced—is both theoretically interesting (dissenting from Lieberson's broad empirical findings) and intriguing as revisionist social history. Native landholdings of North America were not spared compulsory enclosures (Chang 2011; Geisler and George 2006; VanDevelder 2009); Indian nations were forcibly removed, subjected to military containment, deceived by treaties, and defrauded of their landed birthright by unscrupulous non-Indians. And though there were pragmatic moments in which Anglo-Americans found it in their interest to pay Indians for land rather than mount armies against them, the longue durée is a different story. While not denying the blurry line between contract and conquest, Banner (2005:6) nonetheless proposes that force was often not used or kept out of view, thus allowing non-Indian settlers to believe they were not conquerors. The Indians lost their land, in other words, more through the market than through the musket and its modern equivalents, thereby obviating the question of compulsory enclosure in the American Indian case.

The accuracy of Banner's demurral would seem to rely on the historical record—evidence that the preponderance of Indian land transactions were mediated through markets and “willing seller” transactions—cornerstones in the emergent ownership society.2 Yet the central question in grappling with enclosures in Indian Country, I suggest, is not only the degree of market participation but the degree to which seizure and occupation by superordinate interests of land possessed by subordinates was made to appear as market transactions and benevolent government stewardship. I will advance the argument, contra Banner, that Indians in America lost their land through coercion muted by market-like negotiations on some occasions and coercion without pretense on others. If such evidence can be found in the historical record, the exceptions noted by Banner may not be exceptions at all.

I begin with a brief account of the broad contours of enclosure in the early expansionist period of the United States, underscoring the comprehensiveness of federal intervention in the “Indian estate” following Independence (Geisler 2000; Parker 1989). Early on, farming was cast as the essence of Lockean improvement and a vocation Indians were urged to pursue to secure their domains and eventual citizenship. This they did to no avail. I then rescale my argument to the Missouri Basin—the fourth largest river system in the world—to more closely inspect government-induced enclosures amid pretenses of market transfers. Again, certain Great Plains tribes were consummate farmers. Here my attention turns to allotment policy, the American equivalent of enclosure (Banner 2005), and to the pathos that ultimately accompanied it. Finally, to illustrate contemporary enclosure occurrences, I examine the recent USDA removal of Indian farmers and ranchers from their lands and the class action case (USDA v. Keepseagle) it precipitated.3 I conclude by reflecting on new enclosure dressed in the suit of antienclosure, that is, how de facto protectorate status for Indians has been used to alienate and enclose Indian land.

Historical Accounts and Methods

  1. Top of page
  2. Abstract
  3. Introduction
  4. Historical Accounts and Methods
  5. Erasing Indian Lands
  6. Missouri River Corridor
  7. Indian Farmer Castaways
  8. Discussion
  9. Conclusion
  10. Appendix: Condensed List of Damages to Indian Farmers and Ranchers, as Alleged in Keepseagle v. USDA
  11. References

A conversation with a legal historian invites a historical reply. In so replying, I provide a longitudinal account of federal Indian policy unfolding over the nineteenth and twentieth centuries, combining archive records, historical narrative, and primary source materials collected from field visits to North Dakota in 2001 and Washington public hearings more recently. The research questions I pose are sensitive to scale; the Banner thesis that land alienation was not coerced could be accurate in one locality or period but inaccurate in larger geographies and time frames. My approach to this problem is to present a nested, multiscale narrative. It begins at the national scale as settlers and Indians vied for superordinate status, moves to the Great Plains where the major test of government-induced market transactions occurred in the late nineteenth century, and segues to a recent case study of federal agency policies toward Native American farmers and ranchers. Native farmers in some ways have accepted the rudiments of the ownership society and, if Banner is correct, should be operating under the same risks and rewards with respect to their land-use decisions as non-Indian farmers around them.

The interpretive problems confronting historical accounts of American Indian experience with settler communities are many (Hurtado and Iverson 1994), and this research is no exception. Furthermore, land-transactions research under the best of circumstances is cumbersome and challenging to document. Indian land-transfer records are piecemeal because of the movement of Indian people, voluntary or forced, and by Indian indifference, if not resistance, to individualized Lockean property norms and the legal procedures these entail (Cronon 1983). There is thus something of a bias against Banner's stance insofar as the records of private, arm's-length transactions germane to his position are not abundant for a variety of reasons. In contrast, the counterargument holding that Washington enclosed Indian lands through involuntary inducements, deceptive practices, and relentless (though not always declared) marshal law toward their wards has a rich documentation base. A fair analysis must, of course, guard against a facile default to this perspective.

There is little doubt, however, that by the time of Independence if not before, the settler community was superordinate, thus permitting a partial test of the proposition that settler power over indigenous populations bred sustained conflict over land alienation.4 Because in the United States the federal government claims sole jurisdiction over Indian affairs, its potential complicity is complex and evolving. Washington supplies doctrine regarding the location, size, and legal form of holdings among Indian people and also holds a powerful pen recording “how Indians lost their land.” Tellingly, Indian lands in the United States are listed as federal lands rather than the richly diverse spectrum of land tenures they are in fact. These are sticking points in a history begging for clarity.

Erasing Indian Lands

  1. Top of page
  2. Abstract
  3. Introduction
  4. Historical Accounts and Methods
  5. Erasing Indian Lands
  6. Missouri River Corridor
  7. Indian Farmer Castaways
  8. Discussion
  9. Conclusion
  10. Appendix: Condensed List of Damages to Indian Farmers and Ranchers, as Alleged in Keepseagle v. USDA
  11. References

The documentation on the enclosure of Indian lands is extensive (for summaries, see Linklater 2003; Miller 2008; VanDevelder 2009; Williams 1990). It paints a portrait of settler communities colonizing the eastern perimeter of the continent, promoting their religious precepts, seeking riches and lebensraum on the western frontier, and repeatedly benefiting from treaties and trust machinations ultimately aimed at pacification and assimilation of Native populations. Manifest Destiny, as a lived experience, annihilated Indian people and culture. Somewhere between 2 and 20 million aboriginals in North America in the sixteenth century were reduced to 530,000 individuals by 1900 (Ubelaker 1988), giving heft to the Euro-American claim that Native homelands were vacant and awaiting homesteader “improvement.”

It is worth pausing, in contemplating Banner's assertion, to consider the agrarian foundations of the ownership society. John Locke's understanding of property rights pivoted on land improvement (Mehta 1999) and translated seamlessly into natural law narratives of ownership in the New World. Even before Jefferson's agrarian democracy took root, the Swiss legal scholar Emmerich Vattel published his esteemed Law of Nations in 1733 and sent it to elites in the British colonies. Therein he assumed that agriculture was the dominant if not predestined form of human economic existence, an abiding view later endorsed by the Bureau of Indian Affairs (BIA), which would produce the Federal Indian Law explanation of Indian land (Kickingbird and Ducheneaux 1973:4). It is often forgotten that Vattel echoed Locke's proviso to “leave as much [land] and as good as” for others seeking ownership, by insisting that no nation could “exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate” (Vattel, cited in Kickingbird and Ducheneaux 1973:2).

Did the market separate Indians from their land in this early version of the “ownership society”? Banner (2005:26–28) rests his affirmative case on the surviving deeds between Indians and settlers, plentiful colonial statutes regulating such transactions, and widespread acknowledgment of full land ownership by Indians requiring “normal and proper” purchase transactions. But many in the colonies before and after Independence denied that aboriginals met European criteria for ownership under natural or civil law, making market exchanges somewhat symbolic. Indians, they argued, were “less-than-human,” insufficiently industrious to improve their holdings and too mobile to lay claim to specific land parcels, or, as John Winthrop asserted, they showed neither interest nor ability to enclose the land themselves (Pearce 1953).

In sum, the argument that markets prevailed in the early days of the Republic (which Banner alleges) is hampered by reality. Long before European diseases emptied large numbers of the continent's inhabitants, Europeans declared the land functionally empty (vacuum Domicilium) of significant civilization (Cronon 1983). Sales of land devoid of owners certainly lacked for “willing sellers.” So were sales between European-Americans and people who were widely conquered and compelled to surrender title. And according to Foner (2006), “Banner unnecessarily plays down the role of outright military subjugation in land acquisition.” Foner also faults Banner for never pinning down the acreage transacted through market mechanisms. And one must bear in mind the extent to which the government sought and secured public funds by enclosing Indian land with token (if any) compensation, then selling this land bounty to non-Indian speculators and homesteaders.

Other challenges to Banner's revisionism abound. The prerogative to buy and sell Indian lands was tightly regulated by both the colonial and postcolonial governments. A series of Non-Intercourse Acts between 1790 and 1834 disallowed land conveyances between Indians and non-Indians if not sanctioned by treaties signed by the federal government. The Treaty of Ghent, signed in 1814 to end the War of 1812, is an illuminating example of what followed. The treaty pledged that Indians would enjoy legal title to their lands then and in the future and, according to a senior U.S. negotiator, Henry Clay ([1830] 2002), that Indians would receive “ample compensation for every right in land they might relinquish” along with public sector payment for all ceded lands.

What followed was sweeping and compulsory enclosure, even as Indians became “civilized” farmers mixing labor with their treaty and reservation lands. Muddling the Vattel tradition, settler land hunger was insatiable and condoned when it produced Euro-American agrarian citizens. Farmers had rights of eminent domain over Indian land except in situations where Indians left “savagery” and assimilated by becoming agrarians themselves (Young 1958). When large numbers of Indians in the Southeast did turn to agriculture (and were Christianized and intermarried with non-Indians), the Vattel doctrine was put to the test. Georgia, Alabama, Mississippi, and Tennessee aggressively and illegally subjected Indians in their jurisdictions to state laws:

Thus an Indian could be sued for trespass or debt, though only in Mississippi and Tennessee was his testimony invariably acceptable in a court of law. In Mississippi, the tribesmen were further harassed by subjection—or the threat of subjection—to such duties as mustering with the militia, working on roads, and paying taxes. State laws establish[ed] county governments within the tribal domains and, in some cases, [gave] legal protection to purchasers of Indian improvements. (Young 1958: 35)

These state-level encroachments were hastened by an 1823 Supreme Court decision allowing Indian occupancy within the United States but not permitting Indians to hold title to those lands.

With Andrew Jackson's election, a mere 16 years after the Treaty of Ghent, enclosure by the superordinate power and Indian removal became mainline federal policies. Mass removal, proposed first by Jefferson in 1803, eventually forced 50,000 Indians from the Southeast to emigrate to the West, giving the government control over three-quarters of Alabama and Florida, as well as parts of Georgia, Tennessee, Mississippi, Kentucky, and North Carolina (PBS 2001). Thousands of other Indians were forced by the federal government to leave the Northwest Territories, their lands being surveyed and plotted for white settlement. There is little basis for arguing that an equitable land swap or sale occurred for these homelands (Miller 2008); even the western zones set aside by treaty for Indians—many of whom had turned to farming—were enclosed thereafter. The Indian Trade and Intercourse Act of 1834 establishing a western zone for Indian habitation extended over modern-day Arkansas, Oklahoma, Nebraska, and parts of Iowa. Over several decades the claims of mining interests, settlers, and new state advocates reduced this Indian Territory to what is now Oklahoma and later, in 1907, extinguished the zone entirely (Schultz 1972).

Federal government control over Indian affairs, in general, and land affairs, in particular, was unrelenting throughout the nineteenth century, long after the traumas of military removal were inflicted. In what might appear a strong argument for Banner's position, Washington repeatedly sought to turn Natives into thrifty and industrious farmers (Parker 1989), possessed of property protected by federal oversight. But rarely did Indian sellers meet nongovernment buyers because it was illegal, and rarely did buyers find unrestricted Indian lands to purchase. As Deloria and Lytle (1984) and Bobroff (2001) duly note, because land was at the core of Indian identity and not a commodity, Indians were loath to exchange it for currency. What Banner records is the ability of non-Indians, using ploys often perversely standing in for “market” transactions, to disown Indians who farmed as well as those who did not (Pearce 1953). It was not the hidden hand, but manifest government intervention that transformed the indigenous proprietorship of the continent.

Missouri River Corridor

  1. Top of page
  2. Abstract
  3. Introduction
  4. Historical Accounts and Methods
  5. Erasing Indian Lands
  6. Missouri River Corridor
  7. Indian Farmer Castaways
  8. Discussion
  9. Conclusion
  10. Appendix: Condensed List of Damages to Indian Farmers and Ranchers, as Alleged in Keepseagle v. USDA
  11. References

Between the late eighteenth and late nineteenth centuries, Congress signed over 370 treaties with Indian nations. Treaties were a primary means of extinguishing Indian title and accounted for the majority of land cessions from Indian to non-Indian people—an estimated half billion acres. According to the government, treaties were not a grant of rights to Indians but a grant of rights from them and a reservation of rights not granted (Nash 2008). Often the government negotiators were accompanied by military officers, signaling the martial circumstances surrounding the agreements (Kickingbird and Ducheneaux 1973). As with the Treaty of Ghent, many treaties were abrogated, unilaterally amended, or annulled without notifying Indian subjects (Gibson 1980; Wolf 1981). When in 1870 the Supreme Court ruled that Indian treaties might supersede prior acts of Congress, Congress abolished treaties altogether in a matter of months (Prucha 1994). This came conveniently after the government used treaties to separate Indians from significant amounts of homeland, as we shall see.

The Missouri River Basin, the heart of the Louisiana Purchase agreement between two nations (neither of which was Indian), was also the heartland of numerous Indian Treaties to follow. America's longest river (2,465 miles), the Missouri's veins and arteries were the lifeblood of dozens of Plains tribes (Lawson 2001). The upper reaches of its basin were secured by the Fort Laramie Treaty of 1851, one of the largest such tracts of land in America (over 11 million acres). Therein the Cheyenne, Sioux, Crow, Arapaho, Assiniboine, Arikara, Hidatsa, and Mandan Nations signed over rights of passage for the Oregon Trail and allowed private and government forts to be constructed along the corridor. In return tribes were promised an annuity of $50,000 in provisions for 50 years (Bernhotz and Zillig 2010), quickly reduced to 10 years without Indian notification (Herman and Johnson 2007). The voluntary nature of the treaty remains in doubt, the U.S. Army having taken over Fort Laramie from a private fur company two years before. As for real estate, the federal government retained its preemptive status over all other parties, so that rights-of-way and homestead sites were largely at the say of federal land agents.

In 1868 a second Fort Laramie Treaty was signed between the government and the Sioux in response to tensions over gold discoveries in the Black Hills. President Ulysses S. Grant instructed the U.S. Army to police the Hills, remove miners, and prevent Indians from entering zones of white settlement. The new treaty included an article intended to civilize the Lakota through farm training and financial assistance, though the prospects of turning the Plains Indians who lived by hunting into a sedentary group were low (Kappler 1904:998–1007). An interesting rejoinder to Banner's thesis is found in a victorious legal battle by the Sioux Nation on June 30, 1980 (United States v. Sioux Nation of Indians). Therein the Supreme Court upheld an award of $15.5 million for the market value of the land in 1877, along with 103 years worth of interest at 5 percent (an additional $105 million). The Lakota Sioux, however, refused to accept payment and instead demanded the return of their territory from the United States.

The General Allotment (or “Dawes Severalty”) Act of 1887 was based on the theory that Indian assimilation was benign and that Indians would become civilized to the extent they became owners of particular land parcels and pursued agriculture upon them. It was an act of Congress rather than a treaty but, like many treaties, was unilateral in nature and resulted in an enclosure almost too vast to contemplate. At its inception, government agents surveyed reservations and allotted lands to all members of participating tribes, 160 acres to family heads, 80 to single persons over 18 (and orphans), and 40 to minors. Members were not allowed to sell their allotments for 25 years; instead, they were held in trust for individual recipients by the United States.5

Banner construes this policy of entitlement in a novel way: He equates allotment with traditional English enclosure. Inexplicably, he likens the sudden privatization of tribal common lands to the multicentury privatization of English commons that expanded the estates of landlords rather than commoners (Fairlee 2009). But then, after a lengthy discussion of the ways in which the Dawes Act despoiled Indians of their lands, he himself equivocates. The Allotment Act stripped away Indian properties that went unclaimed by reservation Indians. The reason was quite evident: The law's per capita allotment formula came at a time when Indian populations had been decimated by intense warfare with the United States, high mortality from settler diseases, and displacement from their customary food sources. The lands thereby left unclaimed by the Dawes formula were truly substantial. Washington considered these to be “surplus” and encouraged their sale to non-Indians (Bobroff 2001) with proceeds going to the U.S. Treasury. The result was a stunning enclosure of approximately 90 million acres of tribal land between 1887 and 1934—land that was privatized but not into Indian hands (Chang 2011). It was done with moral fervor, argued before Congress as the “Indian Homestead Act,” and showcased as a step toward full U.S. citizenship for Indians (Davies and Clow 2009).

Moreover, all was not well with the subset of lands actually allotted to Indians. Their “ownership” was restricted to something less than fee simple and could not be liquidated for 25 years. Charitably, this was to protect the “owner” from property taxation or hasty transfers. Before that 25 years elapsed, however, the Burke Act of 1906 permitted the government to remove allotments from trust if the allottee was deemed “incompetent” and exchanged for an unrestricted fee patent. This degenerated quickly into a “forced fee patent” requiring payment of state and local taxes. Another wave of land loss occurred and Indian homesteads were taken for debt, legal fees, and tax arrears (Gibson 1980). Efforts to reform the Dawes Act went wanting because they were “framed to favor the interests of the Indian rather than of the Western land grabber” (Fritz 1963).

Thus, the combined effect of treaties until 1870 and the Allotment Act from 1887 on “liquidated the Indian Estate” of the Missouri Basin and elsewhere (Gibson 1980). Late in the nineteenth century, the president of Amherst College characterized the Dawes Act as “a mighty pulverizing engine for breaking up the tribal mass” (quoted in Hoxie 2001:10). There is truth in the argument that a market for Indian lands periodically existed, but rarely on arm's-length terms. Witness the Homestead Acts of 1862, 1909, and 1916 that played out on former Indian lands but brought few monetary rewards to Indians, whose territorial claims were ebbing “like snow before the summer sun.”6 Indians themselves were contained on a dwindling reservation base not of their choosing and struggled with the ever-present dictates of military occupation on their ancestral domains (Watson 2007).7 Adding to the pathos is the bitter fact that numerous Indians in the West as well as the East were consummate farmers, even if they lacked plows and European crops (Hurt 1987; Mt. Pleasant 2011). According to Sauer (1963:33), “The Indian culture west of the Appalachians was still significantly based on cultivation, more largely so than is thought popularly to have been the case. Whether the western Indians contributed any strains of cultivated plants had little attention until we go much further west, to the Mandan of the Upper Missouri and the Pueblo tribes of the southwest.”

Indian Farmer Castaways

  1. Top of page
  2. Abstract
  3. Introduction
  4. Historical Accounts and Methods
  5. Erasing Indian Lands
  6. Missouri River Corridor
  7. Indian Farmer Castaways
  8. Discussion
  9. Conclusion
  10. Appendix: Condensed List of Damages to Indian Farmers and Ranchers, as Alleged in Keepseagle v. USDA
  11. References

In this final section, I change scales once again to interrogate the Banner logic in a single site—the Fort Berthold Reservation of North Dakota, a reservation born of the Fort Laramie Treaty of 1851. Agriculture remains firmly in the picture as a sine qua non to ownership. But instead of granting independence and market access, agriculture becomes a source of discrimination, debt, and dispossession in the twentieth century. We know this thanks to a now-famous class action suit by Indian farmers and ranchers against the U.S. Department of Agriculture, settled after prolonged legal proceedings in 2010. Despite this settlement, much of the most fertile land on the reservation has been sold or leased under duress to non-Indian farmers and businesses associated with North Dakota's gas and oil boom, hollowing out what remains of the Fort Berthold working lands. As we shall see, the land loss is double-barreled, entailing Indian removal due to dam building on the Missouri River and to back-door enclosures by the U.S. Department of Agriculture.

In the 1870s and beyond, the Indian Bureau (forerunner of the BIA) compelled Indians to conform to its policies or starve, and liberally used the U.S. Army to back it up. The oft-repeated objective, once again, was to make Indians self-sufficient like white people through farming, assimilate them, and lay the groundwork for their eventual citizenship in 1924 (Mattison 1955).8 To reduce Indian movement and reliance on hunting, the bureau required Indians to carry passes and obtain permission from Indian agents to leave their reservations, with nonconforming reservations facing the threat of having their uncultivated lands converted to public domain. The 1870s also saw the construction of the Northern Pacific Railroad cutting across the upper Missouri Basin. Long sections crossed through Indian lands and these were granted by Washington rather than sold; and they were guarded by the U.S. Army, intensifying non-Indian homesteading along the route (Simonds 1996).

In the postallotment years of the twentieth century, water politics became an engine of enclosure for remaining Indian lands, including, ironically, those lands committed to farming and ranching for Indians. Twin titans in the federal government—the U.S. Army Corps of Engineers and the Federal Bureau of Reclamation (BOR)—set about damming and modifying the Missouri River. Both used eminent domain rather than willing-seller, willing-buyer transactions to remake and remap the region. Past treaties were of no avail.9 In 1939 the corps completed the Fort Peck Dam in Montana, and in 1942 the bureau presented a plan to irrigate more than 1 million acres of lands downstream of the Fort Peck Dam in North Dakota. After some interagency skirmishing, the corps and the BOR merged plans in 1944 for irrigation and flood control in the leviathan Pick-Sloan Plan (107 dams) for the Missouri and its tributaries.

Given the long history of dictated and largely uncompensated Indian land enclosures reported above, readers will not be surprised to learn that the Pick-Sloan dams and reservoirs destroyed over 550 square miles of tribal land in North and South Dakota alone and affected (often dislocating) Indians on 23 reservations (Lawson 2001). The most devastating effects, according to Lawson (27) were on the Fort Berthold Reservation inhabited by the Three Affiliated Tribes (Mandan, Arikara, and Hidatsa) “whose tribal life was almost totally destroyed by the army's Garrison Dam.” Recall that the Fort Berthold Reservation resulted from the Fort Laramie Treaty of 1851 and that Fort Berthold residents, exemplary farmers subject to the Allotment Act, would presumably be poster children for Banner-style land transactions.

Once again, Indian land loss was severe and virtually unrelated to market niceties. The 1851 Treaty of Fort Laramie initially reserved over 11 million acres for the tribes but over time this amount was reduced to just under a million acres. This occurred unilaterally by presidential decree and congressional order (see Figure 1). Between 1890 and 1929, Fort Berthold was “fragmented into smaller and smaller plots through heirship, becoming unusable and frequently leased to white ranchers” (Weist 1995:168). This occurred before the Corps of Engineers built the 18,000-acre Lake Sakakawea in the heart of the Fort Berthold Reservation. When full, the 200-mile long reservoir claimed 16 percent of the shrunken reservation and displaced over 85 percent of its residents (BIA 1971) (Figure 2). The reason was not complicated: For nearly a millennium Indian settlement in the region concentrated in the rich alluvial lowlands to farm, manifestly improving these lands with their labor, and producing an abundance that was the envy of non-Indian homesteaders (VanDevelder 2004).

figure

Figure 1. Lands Reserved by the Boundaries of 1851 Fort Laramie Treaty for the Mandan, Hidatsa, and Arikara within Approximate Tribal Boundaries. Source Prucha (1990).

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figure

Figure 2. Fort Berthold Communities Flooded by Lake Sakakawea upon Completion in 1956. Source: Map provided to author by Fort Berthold Planning Office on July 6, 2001, is the only existing cartographic expression of the villages submerged within Lake Sakakawea as recorded by the Missouri River Basin Investigation Reports in 1957.

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All this changed when Garrison Dam flooded the Missouri lowlands. A total of 436 of Fort Berthold's 531 families were forced to move to higher, drier, and less fertile uplands (Jones 2011). Now marginalized for lack of water (the corps denied Indian access to impoundment water for irrigation and livestock [Lawson 2001]),10 Fort Berthold farmers and ranchers turned to the U.S. Department of Agriculture for operator loans and assistance. Thanks to the War on Poverty and civil rights legislation, the 1960s saw the birth of a federal loan assistance programs custom made for minority producers. The remainder of this article offers a brief account of the government-led enclosure that followed.

One year after the 1964 Civil Rights Act, Congress heard testimony regarding loan discrimination experienced by an array of minority farmers. The government response was slow but reassuring. In 1976, the Farm Bill earmarked USDA loan assistance for minority farmers and in 1985 (in the midst of the farm crisis), USDA's Direct Loan Assistance Program was extended to minority farmers in the Supplement to the Farm Bill. But by then, a generation had passed since the early traumas of Pick-Sloan, and surviving Fort Berthold farmers and ranchers were desperate. In 1989, the Farmers Home Administration (FmHA) undertook a new loan program for “socially disadvantaged applicants” (i.e., blacks, American Indians, Hispanics, Asians, and Pacific Islanders and, in 1992, women farmers) and in 1990 Congress held hearings on the performance of the USDA in assisting minority farmers. In the summary report, The Minority Farmer: A Disappearing Resource; Has the Farmers Home Administration Been the Primary Catalyst?, FmHA was charged with being “a catalyst in the decline of minority farming.”

In 1994 FmHA was replaced by the Consolidated Farm Service Agency under the USDA Reorganization Act and this was renamed the Farm Service Agency in 1995. Despite efforts to reform USDA's handling of Indian and other minority farmers, severe discrimination continued (GAO 1997).11 So in 1998, when Congress passed a law allowing civil rights complaints against USDA under the Equal Credit Opportunity Act and Title VI of the Civil Rights Act, minority farmers responded with a series of class action suits.12 First African American farmers (Pigford v. Glickman) and then Native American farmers (Keepseagle v. Glickman) sued the USDA. In the latter case, 213 Indian farmers and ranchers asserted they were barred from USDA's farm loan programs between 1981 and 1999. Among other lapses, the USDA was accused of failing to process properly the administrative civil rights complaints of Native American farmers, forcing hundreds into foreclosure (see the Appendix).13 Damages of $19 billion were sought, 750 plaintiffs were named, and up to 30,000 Indian farmers and ranchers were referenced as potential members of the class action.

USDA v. Keepseagle, reduced to its essentials, held that Indian farmers and ranchers in the suit were: (1) denied a USDA loan or program benefit outright, (2) denied a loan or program benefit on terms similar to those offered to white farmers, (3) paid too late to successfully farm, or (4) not given assistance in the completion of FmHA forms, including applications. As a consequence, Indian farmers and ranchers lagged behind other loan recipient groups in total loans received. Although Fort Berthold retained an imposing land base compared to many reservations, one discovers (Table 1) that more than half the reservation is owned by non-Indians (sold by BIA to non-Indian farmers and ranchers) and that the remaining 46 percent consists of tribal and individual allotments subject to the debilitating operating loan requirements described in the suit. Yet for nearly two decades, the suit passed from administration to administration without resolution. In 2010, an out-of-court settlement of $680 million was arranged between the USDA and the plaintiffs, and the federal government agreed to forgive $80 million in outstanding farm loan debt for members of the class action. The USDA also pledged to create new initiatives to improve the department's services for American Indians. The settlement absolved the USDA of all legal wrongdoing. Fifteen years after the suit was filed, many of the plaintiffs were now retired from farming or deceased.

Table 1. Current Land Tenure on the Ft. Berthold Reservation, North Dakota
Category of OwnershipArea (Acres)% of Total Reservation
Source: http://www.mnisose.org/profiles/3affl.htm (Three Affiliated Tribes Home Page).
Total area988,000100
Tribally owned79,2338
Allotted owned378,60438
Government owned3,2803
Non-Indian owned526,88352
Reservoir taking area155,00016

Discussion

  1. Top of page
  2. Abstract
  3. Introduction
  4. Historical Accounts and Methods
  5. Erasing Indian Lands
  6. Missouri River Corridor
  7. Indian Farmer Castaways
  8. Discussion
  9. Conclusion
  10. Appendix: Condensed List of Damages to Indian Farmers and Ranchers, as Alleged in Keepseagle v. USDA
  11. References

It is hard to read what has happened to Indian lands over past centuries as the result of willing-seller market transactions. To do so would put the onus of land-loss responsibility on Indians and blame a subordinated people for the complex complicity of the federal government in the largely nonconsensual alienation of indigenous lands. Much infamy surrounds the redrawing of American geography and the relentless crowding and killing of Indians in its path. This dismal history of Indian land loss follows from federal government decisions to transform Indian lands once protected by treaties, laws, and reservations into non-Indian territory yielding taxes, infrastructure corridors, and a rolling frontier of valuable real estate (Daes 1999; Hoxie 1984, 2001).

Lockean theories of ownership notwithstanding, Indian assimilation via agriculture offered scant protection from Washington's enclosure mission. As noted above, beginning with Jefferson's presidency, farming was advanced by Republicans and Democrats, Whigs and Free Soilers, Indian advocates and antagonists, and BIA and USDA officials as a panacea for the “Indian problem.” Few assimilationists foresaw, however, the precariousness of the farming shield, generation after beleaguered generation. The gradual suspension of USDA services to Indians in the twentieth century gave USDA employees little practical experience with Indian reservations and Indian farm operators. Unlike non-Indian farmlands, Indian lands were not officially enrolled in the Agricultural Stabilization and Conservation Service (ASCS), for example, and thus provided no records on their crop production and performance—a veritable disaster when the farm crisis struck in the 1980s.14 Nor were Indian lands included in the nation's Soil Conservation Service Soil and Range Survey programs. According to the Intertribal Agriculture Council, neither BIA soil surveys nor crop acreage and yield records were initially accepted by the USDA. Thus, Indian farmers sold their crops at depressed prices and got roughly one-third the income that off-reservation farmers received who participated in ASCS programs. Many Indian farmers went out of business or sought bankruptcy protection (Smitman 1999).

The pathos continues in USDA census data on Indian farmers and farmland (Table 2). Until recently, the thousands of Indians who farmed or operated ranches on reservation land were ignored as farmers in the agricultural census (Smitman 1999). Curiously, this was despite the fact this census considers almost all 52 million acres of Indian land outside Alaska as “farmland” (i.e., cropland, pasture, and rangeland). It appears that the government has officially overstated the Indian agricultural land base and grossly understated Indian farms and farmers. In 1997, this peculiar accounting yielded an average of 4,888 acres per Indian farmer (N = 10,638), creating the false impression that Indian farmers are not in fact “disadvantaged” operators. In 2007, this average increased to 13,702 acres as an artifact of the number of Indian farmers and ranchers falling to 3,551 on a base of 48,713,702 acres. At least part of this plummet is attributable to sustained Indian loan discrimination by a federal agency established to shore up minority farming in America.

Table 2. American Indian Farms and Farmland in the United States, 1969–2007
YearNo. of FarmsTotal Farmland (Million Acres)Average Farm Size
Sources: Census of agriculture, 1969, 1984, 1997, 2007.
19695,05042.58,416
19786,88945.46,590
19827,21146.16,393
19877,13445.76,406
19928,34648.35,787
199710,63852.04,888
20073,55148.713,702

My attempt to assign the enclosure of Indian lands to the deceit and racism of federal policies does not address the extent to which land profiteers captured government agencies and commandeered aboriginal lands that were liquidated and “sold.” Weaver (2003) adroitly explores this matter. Numerous examples of this private-public collusion exist, for example, railroad land grants exceeding a hundred million acres of land that had belonged to Indians. Vast military land allotments to veterans as well as multiple Preemption and Homestead Acts played out on lands taken by conquest and pacification campaigns. To elide free market “sales” with coercive forfeitures, even when the government periodically compensated Indians with annuities, lump sum payments, or occasional services, is more polemical than historical. The great majority of lands that Indians “alienated” were the booty of war or the results of strong-arm pacification, assimilation, and outright occupation measures backed by standing (often moving) federal armies. Were non-Indians compelled to relinquish their lands under circumstances faintly similar, cries of unconstitutional seizure and confiscation would be resounding.

Conclusion

  1. Top of page
  2. Abstract
  3. Introduction
  4. Historical Accounts and Methods
  5. Erasing Indian Lands
  6. Missouri River Corridor
  7. Indian Farmer Castaways
  8. Discussion
  9. Conclusion
  10. Appendix: Condensed List of Damages to Indian Farmers and Ranchers, as Alleged in Keepseagle v. USDA
  11. References

Indian land tenures have given way to a continent of non-Indian proprietorship within the much-vaunted ownership society. Stuart Banner's argument that Indian land taken by force was overshadowed by land acquired through contract throws a useful gauntlet in the path of the widely held but underresearched perspective that superordinate settler societies take aboriginal land as they please. Lieberson's formulation is enhanced by Banner's attention to reversals in superordinate–subordinate relations and how these apply to later land policies. In my view, however, Indian Country was at best a protectorate of the federal government; it was stricken with semisovereign status but limited discretion over its homelands. At worst, it was a patchwork of tribe-specific commons forced into open-access relations with the growing settler community who blended market rhetoric with martialized manifest destiny.

As Europeans and Euro-Americans sprawled inland, their government enclosed these commons, sequestered surviving Indians onto reservations, and extinguished all but the remnants of aboriginal life and title. This was backed with violence or its threat and occurred notwithstanding the agricultural prowess and land improvements of Indians. Early on, the relative military strength of Indians vis-à-vis Euro-Americans ebbed and with it the market etiquette of the latter. Homelands became frontiers, and within those frontiers new enclosures of almost unimagined variety “pulverized” what they found in their path. Through the lens made familiar by Henri Lefebvre (1991), a new geographical space has been produced and an old one retired, and not by mutual agreement.

Appendix: Condensed List of Damages to Indian Farmers and Ranchers, as Alleged in Keepseagle v. USDA

  1. Top of page
  2. Abstract
  3. Introduction
  4. Historical Accounts and Methods
  5. Erasing Indian Lands
  6. Missouri River Corridor
  7. Indian Farmer Castaways
  8. Discussion
  9. Conclusion
  10. Appendix: Condensed List of Damages to Indian Farmers and Ranchers, as Alleged in Keepseagle v. USDA
  11. References
  • Indian farmers not informed of special loan programs;
  • Indian farmers informed of loan programs but barred from application or given incorrect technical advice (e.g., noneligibility for low-interest [3 percent]) loans; eligibility for high-interest subordination loans);
  • Indian farmers informed of loan programs but given no assistance in completing complex application (FmHA's mission includes assisting farmer clients in completing loan applications), reject for “incomplete” applications, and at times required extraordinary documentation (e.g., farm home plans and five-year operating plans);
  • Loan applications submitted disregarded categorically or delayed until loans no longer served intended purpose;
  • Requests for emergency disaster loans denied to Indians but widely granted white farmers;
  • Loan denials accompanied with no explanation to use in later applications;
  • Opportunities to obtain private loans (by USDA subordinating its liens, routinely done for white farmers) not facilitated by USDA;
  • Timely complaints of discrimination filed by Indian farmers not acted on pursuant to the applicable law;
  • Indian applicants compelled to travel unnecessarily long distance to meet with USDA officials for loan applications, assistance, or financial transaction; and
  • USDA refusal to accept service payments by Indians while proceeding with collection against them.
Footnotes
  1. 1

    Enclosure is an evocative and provocative term. Because it refers to the land policies decreed by superordinate bodies—nobles, monarchs, modern states—and applies across cultures and class relations, it is not a unitary term. Its classic definition refers to the gradual ending of open-field farming in England and Wales through the fencing, parceling, and titling of these communal spaces. Displaced commoners were rarely compensated; more often they were set adrift and their villages dismantled. Elites consolidated common lands for emergent commercial or leisure purposes—ends that are often associated with the rise of agrarian and later industrial capitalism (Thompson 1991). In its generalized form, enclosure can be applied to new realms, colonial and postcolonial, in which indigenous people are evicted from their communal territories and homelands. For more details on “new enclosures,” see the Introduction to this Special Collection.

  2. 2

    The so-called ownership society, championed by George W. Bush in his 2004 election bid, enumerated the virtues of home and other forms of ownership (Becker, Stolberg, and Labaton 2008) as a template for general welfare. See MacPherson (1962) for a historicized deconstruction of this perspective.

  3. 3

    The initial class action suit was Glickman v. Keepseagle, thereafter renamed to reflect the names of new secretaries of agriculture. For purposes of this article, I refer to the suits generically as USDA v. Keepseagle.

  4. 4

    I do not examine the colonial period here, but emphasize that Banner carries his argument throughout the postcolonial era.

  5. 5

    Legal title to these parcels was held by the United States in the form of a “trust patent.” The beneficial title—the right to live on, use, and profit from the allotment—was held in trust by the U.S. Department of the Interior and was exempt from state or local taxation or regulation.

  6. 6

    This metaphor appeared in various nineteenth century publications intent on describing the crush of western civilizing forces on Indians and their lands. It first appeared in Tocqueville’s writings Democracy in America (Damrosch, 2010).

  7. 7

    Many tribes were excluded from the Allotment Act, including those that had lost their land in previous treaties and had no “surplus” land of offer, for example, the Osages, the Seneca Nation of New York, the Miami, Peoria, Sac, and others. Later, Congress changed its mind and included the Five Civilized Tribes and Osages.

  8. 8

    According to a teaching curriculum developed by the North Dakota State Historical Society, one of the Three Federated Tribes (the Mandan) were the “first farmers of North Dakota” (Herman, Johnson, and Howe 2010), a fact lost on Washington assimilationists.

  9. 9

    See the following websites for appendices from VanDevelder (2004) reciting the treaty clauses that protected Indian interests before the Pick-Sloan system was built: http://www.amazon.com/Coyote-Warrior-Tribes-Forged-Nation/dp/0316896896#reader_0316896896.

  10. 10

    According to the BIA (1971), even if the reservation's uplands were irrigated from the Garrison Dam the beneficial results would be in doubt because 80 percent of the land suitable for irrigation is class 3 with significant drainage problems.

  11. 11

    The General Accounting Office report was inconclusive due to its limited scope, but it did find instances of discrimination in fiscal years 1995 and 1996. It also found that the disapproval rate for loans was 6 percent higher for minority farmers than for nonminority farmers. Also that year, the Office of Inspector General and the Civil Rights Division within the USDA released further charges of USDA discrimination. After more hearings and reports, in December 1997, the White House sponsored a Conference on Minority Farming issues and the USDA released its response to Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Low Income Populations.”

  12. 12

    The risks entailed in filing complaints against the USDA can be substantial. The mere mention of a civil rights violation has at times triggered a transfer of a client's records to Washington for review and an ensuing refusal of state and local USDA offices to work with the clients (now “under investigation”). As the former executive director of the Intertribal Agriculture Council summarized in Congressional testimony, “a civil rights complaint against any office of the USDA most often resulted in bankruptcy, a complete loss of all commercial and local credit, the repossession of all equipment and ultimately foreclosure on the farm itself” (Smitman 1999:91).

  13. 13

    According to the plaintiffs, the discrimination took the form of denial and delay of loans, equivocation as to the availability of loan funds, insufficient loan amounts when granted, and unequal collateral requirements compared to whites. Practically speaking, discrimination meant that crops went in late or not at all, property and financial damage ensued, farmers' future ability to obtain loans was impaired, and some experienced foreclosure. See Eighth Amended Complaint Class Action, Case Number:1:99CV03119, Document 460 (Judge Emmet G. Sullivan); Filed 02/11/2008. Retrieved September 3, 2013 at http://www.clearinghouse.net/chDocs/public/FH-DC-0009-0001.pdf.

  14. 14

    In order to be eligible to participate in the emergency programs of the 1985 Farm Bill, grain farmers had to participate in ASCS programs.

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  2. Abstract
  3. Introduction
  4. Historical Accounts and Methods
  5. Erasing Indian Lands
  6. Missouri River Corridor
  7. Indian Farmer Castaways
  8. Discussion
  9. Conclusion
  10. Appendix: Condensed List of Damages to Indian Farmers and Ranchers, as Alleged in Keepseagle v. USDA
  11. References
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