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James Taylor Carson, How the Indians Lost Their Land: Law and Power on the Frontier, Journal of American History, Volume 93, Issue 2, September 2006, Pages 547–548, https://doi.org/10.2307/4486309
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How the Indians Lost Their Land begins with a basic question that students often pose: Did the first people sell their land, or was it taken from them? To find the answer Stuart Banner explored the origins of colonial British land policy and followed the trail into the early twentieth century. In contrast to the historiographical convention stating that the English justified their claim to North America by right of conquest, Banner distinguished between rights of sovereignty to govern the land and rights of property to own it. While early English settlers expected legitimate land use to involve dense permanent habitations, they nonetheless recognized aboriginal horticulture, settlement, and government as proper markers of ownership, but not necessarily of sovereignty.
After the American Revolution, the United States attempted to assert rights of conquest over nations who fought alongside the British, but costly wars in the Ohio country forced the government to recognize aboriginal title and to resort to treaties in order to acquire the land for which settlers clamored. The strategy of the federal government shifted again in the 1820s in order to justify its removal policy. Because of popular constructions of “Indians” as nomadic hunters the government was able to assert rights of occupancy over rights of ownership. Banner, however, took great pains to argue that, at the time, people thought of the removals as emigrations and that the grim business was simply a continuation of earlier policy imperatives.
