Friday, December 10, 2010

The Doctrine of Discovery, Indian Removal and the Gratz Family

(I recently wrote a post, "The Indian Removal Act, Evangelicals & Rebecca Gratz," about Rebecca's opposition to the government's forced removal of Native Americans from their lands east of the Mississippi.)

It must have seemed quite a caper in 1773, in the waning days of British rule of the colonies. A group of investors, chafing under the British policy forbidding them to buy land from Native Americans west of the Alleghenies, had found a possible way around. Somehow one of their number, William Murray, had come into possession of a doctored document: the original permitted land purchases by individuals without the need of prior royal approval in India; with the removal of all references to moguls and any other words limiting it to the British possession in Asia and the retention of words like "Indians," the "revised" document might seem to an unwary official west of the mountains to give permission for private investors to purchase land from Native Americans.

The investors, mostly Pennsylvanians who included Rebecca's father Michael Gratz and her grandfather Joseph Simon, formed the Illinois Company and sent Murray west. He waved the document in front of the British commander of the region and closed a deal with Native Americans for a stupendous 43,000 square miles of land in Illinois. Now all that was needed was for the claim to be recognized by the government.

The British government instead recognized the fraud and ruled the transaction illegal. The Illinois Company then turned to the Royal Governor of Virginia, a colony which had land claims in Illinois. To encourage his interest, they created the Wabash Company and bought more lands in the region; its investors were mostly Marylanders -- and the Governor of Virginia.
Confirmation of the claims seemed imminent when in 1775 the American rebellion began in earnest and the Governor fled.

For the next 45 years the two companies would press their land claims with whatever government was in power, and all to no avail, sometimes for reasons of national interest, sometimes for reasons of partisan politics. (The colonist investors had morphed into big Federalists whom the Jeffersonian Republican Democrats saw no reason to please.)

Finally in 1817-1818, the heirs to the original investors decided on one last attempt to secure the land through the courts. Rebecca's brother Benjamin Gratz was sent West to lay the legal groundwork necessary to bring a case. Anticipation ran high among the investing families, as we see from Rebecca's letter to Ben in the West:

"The Illinois & Wabash claim, of which I have all my life heard so much, seemed like a romance. I never expected to see anything but maps & pamphlets of the subject, or that it would cost us your society, for so long a time. but since it has proceeded so far, I catch a little of the mania and frame wishes for its success at any rate hope you will not permit it to engage years of toil on an uncertain event & that after satisfying your curiosity with every thing worth visiting, you will bend your course homeward."

Her words with some minor changes could have come from Dickens' 1851 Bleak House, his novel about a lawsuit which went on for generations.

In 1823, the Illinois and Wabash Companies' case, Johnson v. M'Intosh, came before the Supreme Court. The Gratz's and the other second- and third-generation investors lost, but Native Americans lost much more. John Marshall, the Chief Justice, made a mistake. As part of his ruling, he invoked the "Doctrine of Discovery," which went back to the earliest explorations of America. The doctrine awarded sovereignty to the (white European) discoverers; the discovered lost legal title to their lands.

Marshall, who was trying to protect lands given by the government to Revolutionary War veterans, realized too late that using the Doctrine of Discovery in this case could lead to the wholesale removal of Native Americans. He tried to alter what he had done in a later opinion, but the times were against him. Cotton was the greatest wealth-producer in the country, Southerners wanted more land to grow it and the only way open to that land, as they saw it, was to get rid of the Native Americans who held it. Jacksonian Democrats supported them, and as the Supreme Court took on Jackson appointees, Marshall lost control. The new Justices liked his "Doctrine of Discovery" ruling and used it as precedent. Marshall was all too aware of what he had done and regretted his error. Fortunately, he did not live to see the courts of Canada and Australia use his Johnson v. M'Intosh opinion to disallow their own indigenous peoples' land rights.

Rebecca Gratz probably had no knowledge that her family was implicated in any way in the removal of Native Americans. In a quote reproduced in the earlier post on this subject, she shoulders her share of the blame for the catastrophe, but I think she did that as an American citizen, not as an interested party in a law suit.

(To me a blog post is not a journal article or a book chapter; it can serve to introduce readers to a topic and lead them to more detailed information elsewhere. I have pared down this story to its essentials. If you want to read a full account, including Marshall's reasons for invoking the discovery doctrine, I suggest Lindsay G. Robertson's Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands, on Google Books. Rebecca's letter is in Letters of Rebecca Gratz, edited by David Phillipson, also on Google Books.)

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