The subsequent and now fully permitted trade in their land—with private European individuals persuading Native Americans to part with their holdings, by way of a hastily written treaty or bill of sale, and invariably for a pittance—went on apace for well over a century after the founding of the first American colonies. However, in the critical year of 1763, this all came to a screeching halt—or at least, it was briefly circumscribed and regulated—and by the involvement of no less a figure than England’s eccentric but kindly farmer king, George III.

  He issued a formal proclamation from London, which very basically declared that no English settlers could henceforth seize, buy, or settle any lands that lay to the west of the ridge of the Appalachian Mountains. The already thickly settled land of the thirteen colonies between the mountains and the sea were deemed sufficient for the time being. All to the west—where the colonists, in the royal view, had no serious and sustained interest—would now be reserved for the Indians alone, and would be lands where they could henceforth live untroubled and undisturbed.

  The Proclamation Line, as it was called—porous in the extreme, and in short order widely ignored—served precious little purpose, even if it briefly stilled some of the more egregious attempts at westward expansion. Quite to the contrary: many consider it to have been one of the many factors that so infuriated the settlers—for how dare London dictate where in the Americas they might live! George Washington was one such who was angered by the proclamation: as a professional surveyor he could well recognize the finer and more valuable tracts of land he encountered, and when bounty from his participation in the French and Indian War came in the form of land, he gathered some choice tracts for himself—a total of 32,000 acres of fine farmland that was now most inconveniently sited to the west of the Proclamation Line, and which he was now ineligible to possess. The consequences of his irritation at such a colonial ruling were legion: the 1776 Declaration of Independence and the six years of fighting between redcoats and patriots that followed have the matter of Indian lands as one of its many causal origins, and George Washington’s eventual leadership—and presidency of the new republic—a natural culmination.

  The Proclamation Line was drawn at the end of Britain’s victorious Seven Years War with France—or the French and Indian War, as it was named in North America, since various Indian tribes allied themselves with the two warring sides.* When Britain did win all of the hitherto French-held territory, this so-called Ohio Country—the huge and richly fertile landscape much admired by Washington, dominated by the Ohio River at its center, lying between the Appalachians and the Mississippi River—was transferred by treaty to British rule. Such Indians as lived there were understandably perplexed by the sudden change of their rulers’ identity, angered by being passed like chattels from one empire to another. One day a fort from which French soldiers might emerge to make nuisance had its national colors struck down and replaced with the Union flag of Great Britain, and out of it would stream murderous redcoats. It was all most bewildering.

  The British soon came to be widely regarded by the Indians as much less congenially disposed than the departing French. Infamously, Jeffery Amherst, the British commander in chief during the closing stages of the campaign, had little time for the Indians, regarding them as “more allied to the Brute than to the Human Creation.” He happily agreed with one of his colonels to supply the Indians besieging Fort Pitt—later to be Pittsburgh—with blankets soused with smallpox bacilli. “You will Do well to try to Innoculate the Indians by means of Blanketts,* as well as to try Every other method that can serve to Extirpate this Execrable Race.”

  It was with many of its leaders endowed with attitudes much like those of Lord Amherst that, a decade and a half later, the newly independent United States of America took on the challenge of dealing with its original native inhabitants. It was to be a deeply troubling story. The Indians had fared badly enough under the British; they would face more than two centuries of near unrelieved misery at the hands of the vigorously expansionist Americans. For while the British were generally—or at least, by comparison with what was to come—somewhat geographically timid in their westward venturing, the new Americans unleashed themselves on the territory with improvident glee. It was after all their Manifest Destiny—the stirring phrase was coined fifty years after the United States was born, but it was sentiment keenly felt almost from the get-go—to sweep the civilizing light of the new nation through every dark corner of the continent.

  Settlers and speculators alike looked hungrily westward. First in their sights were the fertile lowlands of the Ohio Country, the land lying between the Appalachians and the Mississippi River that had recently been won from the French. Next, following Thomas Jefferson’s celebrated Louisiana Purchase of 1803, it was the enormous tract of land on the far, right bank of the Mississippi, which extended all the way to the Rocky Mountains, and which, though little explored and surveyed, should surely provide rich pickings for anyone foolhardy or brave enough to venture out to make his fortune. Then there were the Spanish territories of Texas and California—millions upon millions of acres of land that looked at first quite freely available to any white man who wished to settle and prosper. If any native peoples primitive or reactionary or inexplicably unwilling to be annexed and subjugated happened to stand in the way of this God-given right and duty, then they should, said the settlers and the speculators, be brusquely swept aside, all in the name of progress and the common good.

  The Founding Fathers had made one crucial provision in the very first article of the U.S. Constitution—in Section 8 lies the sole reference in the entire document to the matter of Native Americans: “Congress shall have Power . . . to regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes.” The rule of thumb in American law holds generally that matters not specifically reserved are for the various American states to regulate and legislate. Had “Commerce . . . with the Indian Tribes” not appeared in the Constitution, it would have been up to the state of New York, say, to deal with its resident Mohawks, the state of Florida to do business with its Seminoles, South Dakota to try to reach settlements with its various tribes of the Sioux, and so on. But because the words do appear in the Constitution, and quite specifically, so the question of dealing with the various tribes has been, from 1790 onward to today, a matter for the federal government alone. So the business of dealing with the 66 million acres of land currently set aside for Native Americans—a somewhat shockingly tiny 2 percent of the entire landmass of the United States (shocking because the entire landmass once “belonged” to its native peoples, in theory and by natural right)—is for the politicians and bureaucrats in Washington, D.C., to decide.

  And for the first century or so of the United States’ existence, until the beginning of the twentieth century, the manner in which Native Americans and their landholdings and land claims were dealt with was decided essentially by the three elements of Law, Treaty, and War. In all three categories, the white man won and the Indian lost.

  A complex web of federal laws passed during the nineteenth century asserted and encouraged the rights of Americans to own the land that, since the Louisiana Purchase, now stretched near limitless, over to the western horizon. These ownership laws applied, notably and with the cruelest of ironies, to American citizens or those in the process of applying to be American citizens—but not to Native Americans, who in the main were still technically not citizens of their own country. Those few who by quirk or exception owned individual tracts of land, those who married outside their tribe, who abandoned their tribe, or who were of mixed blood, could in theory acquire citizenship. But it was not until 1924, and passage of the Snyder Act, that the three hundred thousand Native Americans then living in the United States could become, automatically and without application, full citizens. There can be few today who would consider this state of affairs anything other than shameful.

  Similarly repellent, and in the specific matter of land rather than of citizenship, is the U.S. Supreme Court ruling of 1823, which is taught in the first-year classes of most law schools to this day, and is known familiarly as Johnson v. M’Intosh. The case itself is quite complex, its facts muddled by some fast-and-loose chicanery by one of the parties involved. But the court’s unanimous decision, announced by John Marshall,* the hugely distinguished chief justice, held in essence that only the federal government may purchase land from Native Americans. Indians may not sell land to private individuals because, though they themselves are allowed to live on their traditional lands and enjoy “aboriginal title” to them, that title is precarious and extinguishable only by the United States government, and then only by “purchase or conquest.” The Doctrine of Discovery, as noted above, held that the government was the only truly legitimate ultimate owner of the Indians’ land—and this 1823 decision formally ratified and confirmed this arcane belief. The Indians held title, but not quite the same kind of title—saleable, transferable, alienable—that white people were allowed.

  It was through later legislation like the Distributive Preemption Act of 1841 that white settlers were able to ease their way into ownership, and the United States to expand its populated self ever westward. This law gave half a million acres of federal land to each of nine designated midwestern states. It then allowed any citizen who was squatting on that land the right to buy it from the government for $1.25 an acre, so long as he pledged to work it and improve it for a minimum of five years (if he didn’t, the federal government could take the land back). Ten percent of the total revenue from any sale was then handed to the states to help build roads, bridges, canals, and railroads. It was a system that proved of enormous benefit to the idea of the Manifest Destiny and it did considerable good to all who took advantage—but not, of course, to those who were specifically excluded from ownership.

  Twenty years later came the Homestead Act, signed into law by President Lincoln in 1862. It was designed to ease the process of ownership, allowing those who never had squatted on the land—people living miles away in cities, for example—to acquire quarter-section lots of 160 acres, for no more than a tiny registration fee with the United States Land Office. Freed slaves could apply; Indians could not.

  And the same was true when it came to constructing the great and very costly railroads across the prairies. The government gave grants of land—whether it was theirs to give still questionable to those who were there first, of course—to the railroad companies, immense acreages extending along hundreds of miles in ten-mile-wide strips both sides of the proposed lines of the permanent way, and which the companies would then use or dispose of as they wished. Almost all sold the land as they needed, raising millions in cash from settlers well aware that holding land beside a railway line could possibly turn to their commercial advantage, eventually.

  Company schemes—done honestly, by and large—fully intended to separate would-be settlers from their money were legion, and most seductive. The Burlington & Missouri River Railroad Company, for one, published handsome broadsides with full-color engravings of prairie scenery, offering “Millions of Acres” of “cheap land,” in the flatlands of Iowa and Nebraska, and on most tempting terms: less than $2.50 an acre, with ten years credit at 6 percent interest, a seventh of the principal price due each year, but payable only beginning four years after the purchase. Moreover, “Land Exploring Tickets” were sold at stations, the price refunded to anyone who bought land as a result of what they saw. And anyone flush enough to pay in cash would get a fifth off the price. The Burlington Railroad first published these broadsides in Buffalo, New York, far from Nebraska, hoping to attract immigrants from the crowded east to help settle the near empty midwest.

  But it was only white men and women who could make such purchases and come to own the land. Ownership, like voting, was then for citizens alone, and would remain so for decades more. Others would have to wait. Indians were still on the outside: the yeoman farmers of whom Thomas Jefferson had wanted his country made had to be of moderate respectability and racial acceptability, and most certainly not of aboriginal stock.

  Much the same lack of fairness applied to the bewildering matter of treaties, the solemn, red-morocco-bound, gold-blocked, and sealing-wax-adorned documents that reside still in the safety of the National Archives, pregnant with permanence and supposed meaning. The great majority of the 368 treaties that were signed between the United States and the various tribal nations—a practice that the United States ended in 1871, with many of the treaties either subsequently broken or else never ratified by the Senate, so unenforceable—involved land. A classic example of how the process worked was related by Philip Deloria, a Harvard professor and member of the Yankton Sioux tribe from South Dakota—a tribe that signed away rights to their vast prairie landholdings in the southeast of the state in June 1858.

  Keen to promote settlement in the prairies—and so create cities and a population of potential revenue-paying passengers—America’s railway companies eagerly advertised the benefits of landownership in the wide open spaces of the west.

  South Dakota is a state alive with Indian memories—most particularly, memories of the Sioux. These were Plains Indians, not homesteaders and farmers, not designated as civilized by the government, but instead feared for being fearless and splendid—tepee dwellers, ever moving, magnificent horsemen, masters of animals that the colonizing Spaniards had imported by the sixteenth century. Their best-known chief was Sitting Bull, his best-known victory that over General George Armstrong Custer at the Battle of Little Bighorn in 1876. And later, in the frigid cold of the last days of the century, scores of Oglala Sioux were machine-gunned to death at the Battle of Wounded Knee. The Sioux Indians had good reason to loathe the white settlers who came for the Black Hills gold and the chance to scourge the land of bison. They had ample cause to be appalled by the settlers’ reverence for such violent figures as Calamity Jane and Wild Bill Hickok. They surely had some right to feel aggrieved that white men employed gangs of Chinese and Irish workers to build railroad tracks arrow-straight across their endless, hitherto peaceful miles of grasses that once soughed gently in the prairie wind. They came quite understandably to fear and despise such settlers and fortune-hunters, as well as the trigger-happy soldiers who were there to protect them but who all too often shot first rather than talked or ever tried to parlay. The hatred began, and with reason, back when the first lands were taken away, taken by cunning, deceit, and guile, at the events of 1858 that Philip Deloria recounts.

  It had taken three months of hard negotiation, conducted in Washington, D.C., between government agents and seventeen bewildered Sioux leaders—no fools, though the officials initially supposed them to be—before an outline treaty was agreed to. This document, infamous on its face, held that fully eleven and a half million acres of Sioux land—grassland, rich with animals and birds and unknown and untapped minerals no doubt, as surveyors would later confirm—would be freed from Sioux control and opened for settlers to use as they pleased. Just four hundred thousand acres, the equivalent of a slumlord’s studio apartment to a people who had hitherto inhabited a country estate—would be held back for the exclusive use of the Indians.

  As all treaties did, this one, wrote Professor Deloria,

  crunches them down geographically into a smaller space, opens up all the surrounding land to white settlement, and then sets up the provisions for a colonial kind of structure and the reservations. So, this is a reservation treaty. It creates a reservation, and it sets up all the structures that are going to go with the reservation.

  This settlement is for $1.6 million over fifty years. It’s got a kind of sliding scale: $50,000 a year in the first ten years, and then a lesser amount, and then a lesser amount. But what happens in this Treaty, as happens in many Treaties, is a whole series of qualifications about the money, about what happens with that money. If you don’t do this, we will reduce the money. If we decide that you need an additional agent or an additional farmer, we’re going to take it out of your money. If you don’t send all children between seven and eighteen years of age to school to learn English, we’re going to take some of your money away. If you drink alcohol, we’re going to take your money away. So, the Treaty goes on for many pages, laying out here’s what you give up, here’s the compensation for it. Oh, and by the way, we’re going to fully manage the compensation; oh, and by the way, if you don’t behave in all these very specific ways, we’re not going to give you the compensation at all, anyway. So, it is very sad to read this Treaty, and read it thoroughly, because the fundamental piece of it is the land. And the next piece of it, the majority of it, is about the money and what’s going to happen with the money. Then it’s about altering Native behaviors, in absolutely essential ways.

  Philip Deloria’s great-grandfather was one of the Sioux signatories* of the treaty, which was signed in 1858 by the U.S. commissioner for Indians in what was then Dakota Territory, in the presence of ten white citizen-witnesses. The Senate ratified the document nine months later, and President James Buchanan added it into the list of formal treaties to which in theory his nation remains perpetually bound. The reservation today, six thousand generally impoverished people, forlornly advertises itself as “the Land of the Friendly People of the Seven Council Fires of 1858.” Its busiest business is the Fort Randall casino in the city of Pickstown. Beyond the reservation borders stand millions of acres of rangeland, specked with cattle, almost all of them owned by white farmers. The Sioux can only now gaze outward, wistfully. At their home that once was.