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ZEEB ROAD, ANN ARBOR, Ml 48106 18 BEDFORD ROW, LONDON WC1 R 4EJ, ENGLAND 8012290 Pa r k e r, L in d a Su e THE NATIVE AMERICAN ESTATE: LAND AND RESOURCE DIVESTMENT AND RESTITUTION The University of Oklahoma Ph,D. 1979 University Microfilms I n te r n dt i 0 n1 300 81 N. Zeeb Road. Ann Arbor, MI 4810618 Bedford Row. London WCIR 4EJ, England Copyright 1979 by Parker, Linda Sue All Rights Reserved THE UNIVERSITY OF OKLAHOMA GRADUATE COLLEGE THE NATIVE AMERICAN ESTATE: LAND AND RESOURCE DIVESTMENT AND RESTITUTION A DISSERTATION SUBMITTED TO THE GRADUATE FACULTY in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY BY LINDA S. PARKER Norman, Oklahoma 1979 THE NATIVE AMERICAN ESTATE: LAND AND RESOURCE DIVESTMENT AND RESTITUTION APPROVED BY A .DISSERTATION COMM ACKNOWLEDGMENTS I wish to express my deep appreciation to Dr. Arrell M. Gibson, chairman of my dissertation committee, who gave in­ valuable guidance in the preparation of this dissertation. I am indebted to him for his insight and inspiration. His con­ tinual interest and encouragement helped me immeasurably throughout the course of my research and writing. I am also grateful to the other members of my disser­ tation committee. Professors Sidney D. Brown, Russell D. Buhite, H. Wayne Morgan, and Jerome O. Steffen, for their pertinent suggestions. Dr. Brown and Dr. Buhite also have provided guidance and encouragement throughout my graduate studies. I want to acknowledge my appreciation to the University of Oklahoma Graduate School for helping finance a research trip to Honolulu, Hawaii. The staff of the State Archives of Hawaii, particularly Agnes Conrad, deserves commendation for their assistance. Several other individuals deserve recognition for their help. I want to extend my thanks to Terri Sampson for her patience in typing the manuscript. For years of friend­ ship and advice, I want to thank Jo Gil. Special thanks to Marc B. Logan for his continual words of support and encouragement. iii TABLE OF CONTENTS Page ACKNOWLEDGMENT ...................................... iii Chapter I. INTRODUCTION.................................. 1 II. NATIVE AMERICAN LAND TENURE SYSTEMS........... 15 III. APPROPRIATION OF THE INDIAN LANDED ESTATE: PART ONE .................................. 51 IV. APPROPRIATION OF THE INDIAN LANDED ESTATE: PART TWO .................................. 113 V. APPROPRIATION OFTHE HAWAIIAN LANDED ESTATE: PART ONE .................................. 154 VI. APPROPRIATION OF THE HAWAIIAN LANDED ESTATE: PART TWO .................................. 194 VII. NATIVE AMERICAN RESTITUTION ATTEMPTS ...... 247 VIII. CONCLUSION ............................ 335 BIBLIOGRAPHY ........................................ 345 iv THE NATIVE AMERICAN ESTATE: LAND AND RESOURCE DIVESTMENT AND RESTITUTION CHAPTER I INTRODUCTION In contact situations between a nation with superior technology and a nativistic community, principal conflict evolved from differing land tenure systems. This occurred when the imperial nations of Europe and later the United States encountered the aboriginal people of the American continent and the Hawaiian Islands. Colonists from the European nations claiming dominion over native peoples and their lands in the New World reflected the imperialistic mind set of their age. They were unremittingly committed to the exploitation of the aborigines and their lands. American justification for expropriating Indian land had its roots in European philosophy, theology, canon law, and international law, derived from the rhetoric of the antecedent imperial nations. The new American nation im­ plemented many aspects of Native American management prac- 1 2 ticed by Great Britain. American rhetoric which justified the expropriation of aborigines' land had been formulated prior to the expansion of the American frontier to the Hawaiian Islands. Thus, traders, settlers, and missionaries transferred this to native Hawaiiens and their lands. The future relationship between the Old World settlers and the native inhabitants of the Western Hemisphere was to a large degree already predetermined at the time of "discovery." Christianity and classical philosophy helped form preconceived views of the New World peoples and the relation of Christian nations to them. Religious, ethical, and commercial standards pro­ vided the European colonists justification for their con­ quest of native peoples and their territories in the New World. The basis for the various concepts promoting ex­ pansion lay in the European view of aborigines. Associated with the principles of discovery, just wars, and papal donations was the presumptive superiority of the Christian nations over heathen nations. In 1493 Pope Alexander VI assigned North American to Spain along with the directive to Christianize the natives. The Pope in 1497 reenforced his commission to Spain to con­ vert the New World aborigines. Other European nations did not accept their exclusion from North America. In order to justify the New World conquest European theologians and philosophers frequently referred to Aristo­ 3 telian thought to substantiate their varying interpretations. The Spaniard Juan de Quevedo cited Aristotle's statement that some men were inferior by nature to uphold the view that Indians were slaves by nature. Francisco de Vitoria denounced the idea that Indians were by nature subject to rule by others and incapable of self-rule. He thought they possessed sound minds and should not be slaves. Vitoria, however, interpreted Aristotle's teachings to mean that natives in their childish innocence required protection from superior Christian nations. Thus, he too justified conquest for the Indian's good. Juan Gines de Sepulveda agreed with Quevedo and added that the aborigines' customs and lack of individual ownership of land (title to Indian land was vested in the tribe) upheld the natural law of superiority of Christian nations over uncivilized non- Christian nations. Bartolomé de Las Casas disagreed and charged that Sepulveda did not understand Aristotle. Las Casas maintained that few individuals were by nature slaves and claimed that Indians were rational. Fernando Vazquez de Menchaca accused those using Aristotle's theory of slavery of applying it to "cover wars with a cloak of justice," but the imperialist view prevailed and it became accepted that a Christian nation had a natural right to conquer aborigines and use their labor and exploit their lands. Another area of debate among theologians and 4 philosophers centered on the moral and ethical responsi­ bility to Christianize the Indians. Inseparable from this controversy was the idea of just wars. This concept evolved as justification for conquest, expansion, and later dis­ placement of the natives from their lands. St. Augustine first developed the idea that wars could be just if the objective was good, including the intention to "avenge" wrongs. Adding to this Ambrose elaborated the moral obli­ gation to correct or prevent injustices. Medieval theolo­ gians claimed that conquest was legitimate only if the war had been just. The Crusades divided the world into an antithetical view of right and wrong as well as between the faithful and the infidel, and implanted the idea that wars of conquest waged in the name of Christianity were just. Later the doctrine evolved to justify world conquest. After Alexander VI assigned North America to Spain, debate ensued in the Spanish court over voluntary and forced conversion. The Spanish government directed its conquerors to read the Requerimiento to the Indians. If they refused to acknowledge the Pope and the rulers of Spain as