“That we may avoid the least scrupulo of intrusion” – The Colonists and Indian Land, Part I

Featured image: Winchester Public Library “Purchase of Land From the Indians” by Aiden Lasalle Ripley

Children today are told that the colonists robbed the Native Americans of their land, that their means of livelihood was stolen from them. This isn’t really true though, at least not for the first 80 years or so. The Indians were not passive victims at the mercy of foreign invaders. They wanted European things and did not hesitate to trap furbearing animals to near extinction or to sell off so much of their land that they had to petition the General Court of the Massachusetts Bay Colony for the return of enough ground on which to plant corn to feed themselves. They readily sold land, even after learning that it involved the permanent transfer of real property rather than merely usufruct or transient rights. And the colonists themselves were the first to insist on fair trade.

The historian William Cronon agrees on this point: that the colonists did not impose mercantile capitalism on the Native Americans. Acting on their own agency, they embraced it, actively and willingly making choices that led to the very conditions that caused the demise of their traditional ways of life. ¹ As Samuel de Champlain observed in 1606, prophetically, as it turned out:

“They bartered away to us their bows, arrows, and quivers, for pins and buttons; and if they had had anything else better they would have done the same with it.” ²

The idea that Native Americans did not understand European concepts of ownership or did not realize when they were being cheated arose in romantic Victorian Era histories bemoaning the fate of the “Vanishing Indians” as innocent victims. As one historian eloquently wrote:

“Thus the disputes arose. The red man would not have denied a bargain, or violated his word, but he declared all transfers to have been only for the life of the grantors, while the white man triumphantly pointed to his deed, and the white man’s bayonets bristled behind it, and obedience followed necessity. Justice was not discussed, a plea of ignorance was invalid, and though an Indian was made drunk, and sold a rich township, holding beneath its turf the graves of a thousand years, for a string of beads, Might made Right, and the strong arm conquered.” ³

However, the news about Europeans owning land and resources as commodities rather than as privileges surely spread throughout the eastern bands and tribes within a few years of contact. They must also have seen that transient rights would not have supported the permanent plantations the settlers hoped to establish, and that the settlers had their own system of usage rights intended to keep land and resources within their communities in perpetuity.

In pre-1650 conveyances of land most sachems and sagamores seem to have understood the importance of limiting them to their functionally surplus lands. This included unused lands prepared for cultivation in the future, such as “the hoed ground” that Endicott laid out for Gloster’s plantation. ⁴ Some sachems attached riders that guaranteed their people the usage rights to specified subsistence resource sites and sites with traditional spiritual significance, at least temporarily and sometimes permanently.

For example, Nanepashemet’s widow, Squaw Sachem of Mistick, explicitly reserved lands for Native use in her 1639 deed to Charlestown, reprinted on the Wiser Family web site:

“The 15th of the 2d mo.,1639. Wee Web-Cowet and Squaw Sachem do sell unto the Inhabitants of the Towne of Charlestowne, all the land within the line granted them by the court, (excepting the farmes and the ground, on the west of the two great Ponds called Misticke ponds, from the south side of Mr. Nowell’s lott, neere the upper end of the Ponds, unto the little runnet that cometh from Capt. Cook’s mills, which the Squaw reserveth to their use, for her life, for the Indians to plant and hunt upon, and the weare [weir] above the pons [ponds], they also reserve for the Indians to fish at whiles the Squaw liveth, and after the death of Squaw Sachem, she doth leave all her lands from Mr. Mayhue’s house to neere Salem to the present Governor, Mr. John Winthrop, Sen’r, Mr. Increase Nowell, Mr. John Wilson, Mr. Edward Gibbons to dispose of, and all Indians to depart, and sattisfaction from Charlestowne, wee acknowledge to have received in full sattisfaction, twenty and one coates, ninten [nineteen] fathom of wampom, three bushels of corne: In witness wherof we have here unto sett ou’r hands the day and yeare above named. The marke of Squaw Sachem, the marke of Web Cowet.” ⁵

First-generation conveyances thus show that strong-arm land grabs were not the point. In 1629, according to Francis Higginson:

“They do generally profess to like well our coming and planting here, partly because there is an abundance of ground which they cannot possess, and because our living here will tie a means of relief to them when they want, and a defence from their enemies. They will come into our houses by half a score at a time when we are at victuals, but will not ask or take anything but what we give them.” ⁶

Salem Village’s leaders wanted to deal justly with the Indians, requesting of Governor Endicott that:

“If any of the Savages pretend right of inheritance to all or any part of the lands granted in our patent, we pray you endeavor to purchase their tyttle, that we may avoid the least scruplo of intrusion.” ⁷

The Massachusetts Bay Colony could not recognize Native American sovereignty, however, because New England had been granted to them by the English Crown. New England belonged to the king. Technically, there was nothing to prevent the English from alienating the Indians from their rights to their land. Massachusetts law required only that they be compensated for it. In other words, the colonists bought land or paid leases for land that they could legally have appropriated (and later did). Townships nevertheless insisted on entering into voluntary transfers and obtaining clear legal title. ⁸

Second-generation deeds, in contrast, especially those written after 1700, used wording to eliminate all “loopholes” and any ambivalence regarding possession of the land as a commodity. For example, Salem’s deed of 1713 granted to the English, “to have and to hold from this time forward”, a defined territory, plus:

“…all houses, edifices, buildings, lands, yards orchards, gardens, meadows, marshes, feedings, grounds, rocks, stones, beach flats, pastures, fences, Commons, commons of pasture, woods, underwoods, swamps, waters, water courses, dams, ponds, headwaters, fishings, fowlings, ways, easements, profits, privileges, rights, commodities, emoluments, royalties, hereditaments [inheritable property], and appurtenances [accessories] whatsoever, as also all mines, metals, minerals, with all islands and privileges of Naumkeag River alias Bass River, which the ancestors of said Granters heretofore rightfully possessed….”⁹

The deed’s “Granters” were ten of Nanepashemet’s and Squaw Sachem’s heirs, including an elderly daughter, Yawata, and grandson James Rumney Marsh, also known as James Quannapowitt, son of Sagamore John (Wonohaquaham), a relation of Masconomet of Agawam and Wenesquawam.

Pointing out Native American agency during the Contact Period is not meant to “blame the victim” as might be claimed. ¹⁰ It is not to say that elsewhere some sagamore or sachem was not plied with drink and defrauded of land, and it is certainly true that the Indians could not in the end defend their rights. In their loss of lands in the beginning, however, they were their own worse enemy. Later, ironically, the same body of laws and customs that had been enlisted to deal fairly with Indians made them victims, not of theft, but of eminent domain.

Eminent domain—the power of a government to take land for public use based on the concept of vacuum domicilium (literally, “nobody home”)—was defined as a civil right and justified through the Christian Bible. John Winthrop clearly set out this case in his writings:

“What warrant have we to take that land, which is and hath been of long time possessed of others the sons of Adam?”

“Answer: [first] That which is common to all is proper to none. This savage people ruleth over many lands without title or property; for they enclose no ground, neither have they cattle to maintain it, but remove their dwellings as they have occasion or as they can prevail against their neighbors. And why may not Christians have liberty to go and dwell amongst them in their wastelands and woods (leaving them such places as they have manuered for their corn) as lawfully as Abraham did among the Sodomites? For God hath given to the sons of men a twofold right to the earth: there is a natural right and a civil right. The first right was natural when men held the earth in common, every man sowing and feeding where he pleased: then, as men and cattle increased, they appropriated some parcels of ground by enclosing and perculiar manurance, and this in time got them a civil right. . . . 2dly, there is more than enough for them and us. 3dly, god hath consumed the natives with a miraculous plague, whereby the greater part of the country is left void of inhabitants. 4thly, We shall come in with good leave of the natives.” ¹¹

The moral implications his last two points aside, Winthrop refers to unowned, unfenced, unmanured, unimproved land as woods and wasteland. To the English of the 17th and 18th centuries, this kind of landscape was defined as a wilderness. ¹² Native Americans did not define their environment this way, however. They saw themselves both materially and spiritually as belonging to the land, no less a part of the landscape than the spirit animals that lived among them and ruled their kin groups. A quote attributed to Massasoit claims to express the Native American viewpoint:

“What is this you call property? It cannot be the earth, for the land is our mother, nourishing all her children, beasts, birds, fish and all men. The woods, the streams, everything on it belongs to everybody and is for the use of all. How can one man say it belongs only to him?” ¹³ (Sounds like something I said about the air a while back when chunks of atmosphere overhanging highways were being commodified for sale to commercial developers.)

To the Europeans, however, in addition to being a collection of commodities, nature was alien, “other”, to be defended against and conquered, just as the homeland of island England and the other comparatively tiny countries of Western Europe had been conquered since the time of Roman occupation. Both Native Americans and Europeans saw North America as a cornucopia overflowing with abundance, and both were duly thankful of it, but the Europeans defined this bounty as potential wealth and its sources as limitless. To them, nature provided objects to possess and sell for profit. As Cronon says:

“More than anything else, it was the treatment of land and property as commodities traded at market that distinguished English conceptions of ownership from Indian ones.” ¹⁴

The Pennacook-Pawtucket, for example, had only a transient relationship with land and property, based on their needs, what the environment had to offer at a given time or season, and how long the environment needed to recover from their use of it. They moved through their environment accordingly—from Winnipesauke to Nashoba and back, Amoskeag to Naumkeag and back, Wamesit to Agawam and back, and so on. They had a concept of communal ownership of land, with ownership defined simply as occupation of a territory with unfixed or shifting boundaries. Rights to the inter-generational seasonal use of resource areas were held by the heads of lineages, inherited fathers to sons, and redistributed to families. And they had their own concept of eminent domain, which they applied not to the land per se but to the territories of their conquered enemies. ¹⁵

So once again the real story is more complex and nuanced than we thought. It cannot be understood in terms of perpetrators and victims, and we should tell the children that, sadly, Native Americans made informed choices that contributed to their misfortunes, and that in their dealings with them, colonists struggled, for better or worse, to act consistently with their Bible and English rule of law. And no one (or everyone) was innocent. More than the concepts of sovereignty and private property, the commodification of nature in the service of mercantile capitalism was (is) the crux of the problem, a mismatch that may rob all of us in the end.

^References

1. See Sidney Perley’s The Indian Land Titles of Essex County, Massachusetts (1912) and the works of William Cronon, including. Changes in the Land: Indians, Colonists, and the Ecology of New England (1983); “The Uses of Environmental History.” Environmental History Review. Fall: 1-21 (1993); and Uncommon Ground: Rethinking the Human Place in Nature (1995).
2. Voyages of Samuel de Champlain: 85-86 in the 1878 Prince Society edition. All the translations have it. It’s in Chapter VIII.
3. John Wesley Hanson, History of the Old Towns, Norridgewock and Canaan…including a Sketch of Abenakis Indians (1849): 13-14.
4. Reference to Endicott’s 1642 division of the Indians’ “hoed land” on Cape Ann is in The charters and general laws of the colony and province of Massachusetts (Boston, MA: B.T. Wait and Co., 1814). See also Young, Alexander. 1846, Chronicles of the First Planters of the Colony of Massachusetts Bay, 1623-1636, Volumes 41 and 49. Boston, MA: C. C. Little and J. Brown.
5. Wiser Wiser, Ron. 2000. Wiser Family Research See also Ellen Knight’s research on the Nanepashemet Family Tree, February 2006, Wiser Newsletter 11 (2): Nanepashemet.pdf. Squaw Sachem’s deeds along with other Indian deeds are also in the Salem Registry of Deeds.
6. This quote is from p. 18 in Joseph Felt’s 1856 Memoir of the Rev. Francis Higginson; also on p. 13 in Higginson’s New-Englands Plantation (1680, written in 1630).
7. Salem’s request to Endicott for clear title is taken from p. 22 in Joseph Felt’s The Annals of Salem: from Its First Settlement (1827). See also Peter Leavenworth’s 1999 article, “The Best Title That Indians Can Claime”: National Agency and Consent in the Transferal of Penacook-Pawtucket Land in the 17th Century, in New England Quarterly 72 (2): 275-300.
8. Mass. General Court’s law requiring that Indians be compensated for their land is in The Colonial Laws of Massachusetts: reprinted from the edition of 1672 (Boston, 1887): 74-75. See also Harry Andrew Wright, The Technique of Seventeenth Century Indian Land Purchases, in Essex Institute Historical Collections 77 (1941); Stuart Banner How the Indians Lost Their Land: Law and Power on the Frontier (2009); and James Springer, American Indians and the Law of Real Property in Colonial New England, in The American Journal of Legal History History 30 (1): 25-58. Oxford University Press
9. Salem’s deed of 1686, redeeded in1713, includes Danvers (the site of Naumkeag), Peabody, and Middleton, and is an example of the later more restrictive deeds. The transcription is mine. The original may be read on the Hawthorne-in-Salem web site or the web site at the Southern Essex County Registry of Deeds in Salem, in three texts. The original source is Sidney Perley’s 1913 book, Indian Land Titles, Essex County, Mass.
10. Reference is to William Ryan’s 1971 (1976) book, Blaming the Victim.
11. Winthrop Papers 2:12. Winthrop’s argument contrasting natural and civil ownership of land is elaborated on pages 102-149 of Volume 2 of the Winthrop Papers, and is also reproduced on the web site of the Winthrop Society at https://www.winthropsociety.com/doc_reasons.php. A clear explanation of vacuum domicilium is presented by David G. Allen (2014): Vacuum Domicilium: The Social and Cultural Landscape of Seventeenth Century New England; The First Official Frontier in Massachusetts: See also William Cronon’s explanation of the impacts of this doctrine in Changes in the Land: Indians Colonists and the Ecology of New England (2003).
12. The English colonial definition of wilderness is expressed in an article by Joel Eno, The Puritans and Indian Land, Magazine of History with Notes and Queries: 274-281 (1906), from the Massachusetts Historical Society Proceedings 12 (1873): 356.
13. There is no primary source for the quote attributed to Massasoit about Native peoples’ relationship to the environment. Massasoit and other contact agents had complete grasp of the English concept of property. The words may have come from the context of Massasoit’s protest, reported in Plimoth Plantation records, of an incident in which Myles Standish excluded the Pokanoket from his 14-acre property on pain of a charge of trespassing. It was the concept of trespass, not land ownership per se, that was confounding. See Massachusetts General Court, Records of the Colony of New Plymouth in New England, Vol. I Deeds & Etc. 1620 to 1651. In Book of Indian Records for Their Lands (1861).
14. Cronon 1983: 75.
15. Good ethnographic sources on native occupation of the land and their ownership concepts include David Stewart-Smith, The Pennacook Lands and Relations: An Ethnography, in The New Hampshire Archaeologist 33/34 (1994); and Anthony F. C. Wallace, Political Organization and Land Tenure among the Northeast Indians: 1600-1830, Southwestern Journal of Anthropology 13 (1935): 301-321. See also Christopher Hannon’s 2001 article, Indian Land in Seventeenth Century Massachusetts, in Historical Journal of Massachusetts 29 (2).