Law and Property Theme Analysis

For most of the 19th century, the government of the United States was locked in a land dispute with the Native American population. In the 1830s, during the Andrew Jackson presidency, the U.S. government passed the infamous Indian Removal Act, which ordered all Native Americans to relocate west of the Mississippi River. Though the Supreme Court found the law to be unconstitutional, the Executive Branch continued to enforce it, relocating large numbers of Native Americans to land that, according to the law, was now legally theirs. Ironically, this policy later caused a major problem for the United States. Once the U.S. government saw value in encouraging white settlers to occupy land west of the Mississippi, white Americans had to decide whether to honor their word or whether to force Native Americans from land that the government had formally acknowledged their right to occupy. The government chose to break their word and use any means necessary—typically violence and treachery—to relocate Native Americans once again, laying bare their own hypocrisy. Each chapter of Bury My Heart At Wounded Knee discusses a regional land dispute between Native American tribes and the government-backed white settlers who forced them from their land.

In the myriad land disputes between Native Americans and white settlers, Brown identifies many common themes. The United States government wanted legal cover for westward expansion, so having tribal chiefs sign treaties depriving themselves of their own land was a top U.S. priority in most land disputes. To “persuade” chiefs to sign such treaties, the U.S. used several strategies over and over. First, some government negotiators took advantage of the Native Americans’ concept of property rights, which was much different than the view of white settlers. Native Americans tended to view land as a free, collective resource, which couldn’t be claimed as any single person’s “property.” In this way, Brown suggests that certain chiefs thought they were humoring U.S. government officials by allowing them to own the land. Second, and somewhat similarly, Brown suggests that certain tribes, such as the Nez Percé, may have had a similar conception of property as citizens of the United States, but believed that there was enough land for everyone. They underestimated the scope of American expansion (or maybe just the extent of Americans’ greed), and paid a heavy price for doing so. Third, Brown shows that in many cases, government negotiators lavishly bribed chiefs into selling their people’s rights. Fourth, and most importantly, Brown shows that in many cases, Native American chiefs were bullied and intimidated into giving up land rights. In most of the chapters in the book, the chief of a tribe agrees to an unfair treaty with the U.S., rather than risking prolonged war with the U.S. military, which even Native Americans recognized as the deadliest force in the country.

In this way, Brown brings Bury My Heart At Wounded Knee to a depressing conclusion about the relationship between law, property, and power. Judging by the Native Americans’ experience, law is not an impartial arbiter. On the contrary, the law can be manipulated and reinterpreted to favor one side over the other. When the U.S. broke its own laws (for example, when it backed out terms of Andrew Jackson’s Indian Removal Act), there were no legal repercussions, but when the U.S. became aware of even a whisper of impropriety from the Native American side, the U.S. howled in indignation and enforced the law to its fullest extent. For example, when a renegade group of Utes attacked American soldiers, the U.S. military used the incident as an excuse to punish the entire Ute tribe for breaking its peace agreement with the U.S., and they relocated all Utes (not just the renegades) to a reservation. Quite simply, Native Americans lacked the power to enforce U.S. laws, while the U.S., with its superior military force, enforced its own laws when it had an economic incentive to do so, and didn’t enforce them, or barely enforced them, when it had an incentive not to.

In legal property disputes, Brown suggests, the side with more power—in this case, the U.S.—often wins in the end by twisting the laws to advance its own economic interests, even if doing so means effectively robbing others of their homes. And in this way, the more powerful side can win a corrupt, illegal victory against its opponent, while using the law as empty “proof” of its decency and civilization.