Is it sometimes illegal, or extralegal, to be a commoner?
I began to think about this some years ago when reading E. P. Thompson’s book Customs in Common. At one point, Thompson describes the ways in which the English exported their laws of property to their colonies. In New Zealand, the Native Land Act of 1865 was designed to bring native land ownership into line with British practice. “Since British law could never recognize a communist legal personality…, the Act ordered that communal rights could not be vested in more than ten persons,” Thompson writes.
What haunts me is that phrase, “could never recognize”: it is as if the commoners of a commons are invisible. They have no legal being.
For an American historical moment in which the “common self” lost its standing and became invisible before the law, consider the story of the Dawes Severalty Act, enacted by the United States congress in 1887. It was then the view of many eastern “philanthropists,” including the Severalty Acts prime sponsor, Republican Senator Henry L. Dawes of Massachusetts, life on the reservations made the Indians indolent, uninterested in their own advancement, and unfit for citizenship.
Dawes and his fellow reformers thought that the key, underlying problem was the tradition whereby land was held in common by tribal patents. If that system could be altered, all else would change as well. With common ownership, Dawes wrote, “there is no enterprise to make your home any better than that of your neighbors. There is no selfishness, which is at the bottom of civilization. And what does it mean to be civilized? For Dawes it meant to wear civilized clothes … cultivate the ground, live in houses, ride in Studebaker [Conestoga] wagons, send children to school, drink whiskey [and] own property.”
To solve the “Indian problem,” the Dawes Act began the process of breaking up tribal holdings and giving individual Indians deeds to private plots of land. Land would no longer be owned “in the entirety” by a tribe but “in severalty” by individuals. Thus did Jefferson’s vision of a nation of small farms and yeomen farmers settle, a century later, over the Indian lands, a civilizing enclosure for a once native commons.
In reconfiguring tribal land, the Dawes Act did more than cut the whole into parts. It also made the land itself alienable, turned it into a salable commodity. There were some initial constraints on the Indians themselves buying and selling land, but in fact not all the land in question went to Indians. One might have assumed that the way to break up common land, if it had to be done, would be to take the total acreage of a reservation, divide it by the number of inhabitants, and give each one an equal share. If there were 100 residents and 160,000 acres, each would get 1,600 acres. The Jeffersonian grid cut more finely than that, however.
The Dawes Act sought to make farmers of the Indians and brought with it a supposed ideal size of farm: each Indian was allotted, at most, a quarter section of land (160 acres). All the remaining land was put up for sale. In my hypothetical case, after each of the 100 residents got 160 acres, the remaining 144,000 acres would be opened up to homesteaders, or sold to settlers, or to the railroads, or to cattle ranchers, or (later) to the oil and gas industry. (The proceeds of these sales were to be invested in a trust fund to be used for the “education and civilization” of the Indians; it’s a nice touch, as if if some sect of True Believers were to seize and sell your home, then claim to demonstrate their good intentions by using the proceeds to send your children to True Believer school.)
Finally, the Dawes Act linked allotment to citizenship. A few years before the act was passed, the Supreme Court had ruled that Native Americans could be denied the right to vote because they were not U.S. citizens, a decision which those in favor of assimilation sought to remedy by adding a citizenship provision to the bill. After the process of allotment had been completed, the Act said, “every Indian…who has voluntarily taken up…his residence separate and apart from any tribe…, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States….”
The law would seem to have embodied a hidden syllogism: all U.S. citizens have private, alienable holdings; Indians accepting allotment will have such holdings; therefore such Indians, living “separate and apart,” will be citizens. In this way does one kind of self become a citizen, enfranchised and visible to the law, while others drop out of sight. As if to underscore that point the Dawes Act actually says that when it comes to hiring “Indian police,” those who have accepted allotment “shall be preferred.” Those who accept allotment are not just recognized by the law, they embody the law.
I’ll have more to say about the Dawes Act, and the invisibility of commoners, in my next post.