by Edward R. Adams*

“When the government fears the people,” Thomas Jefferson allegedly wrote, “there is Liberty.  When the people fear the government, there is Tyranny.” Actually, there is no evidence that he ever wrote anything resembling this famous aphorism.^[1] Equally disingenuous is the narrative that Jefferson was opposed to an overbearing government, as it was under his influence that the government unfavorably reconstrued the basic property rights and legal status of Native Americans, formulating a system that continues to oppress Indian peoples to this day.^[2]

This work develops three areas that illustrate Jefferson’s views and methods which conspired to estrange Indians from their property. The first part examines how Jefferson’s prejudice against Native Americans manifested itself in his expropriation of Indian remains. The second explains the actual methods through which Native lands were acquired. The third analyzes how Jefferson’s use of the Doctrine of Discovery and its corollary, the right of first refusal, reconstrued property laws to allow the government to subjugate Native American land. 

Native American Ancestral Remains

It is a fundamental aspect of culture to be able to mourn one’s dead. While European settlers would bury their dead in separate graves in graveyards, American Indians employed communal burial mounds, vast structures that could host thousands of ancestral remains and artifacts.^[3] These mounds played an important part in Native American societies and acted as a central place in the community where individuals could meet with one another.^[4]

The dead, or at least the dead of European colonists, were just as venerated then as they are today. But, notably, no protections were afforded to Native burial mounds in Jefferson’s time, even by Jefferson himself.^[5] In some time around 1780, Jefferson made a discovery: there was an Indian burial mound a mere few miles away from his home in Virginia.^[6] He quickly rushed to the mound and, ignoring the many tribes that frequented the site, claimed it as his own. With hasty efficiency, he cut open the mound and proceeded to loot the graves.^[7]

For these actions, Jefferson is sometimes regarded, always incorrectly, as the founder of modern American archaeology.^[8] However, archaeology, much like any other science, implies observance of objective fact and adherence to scientific truth. Jefferson practiced neither of these things.^[9] He frequently kept the remains for himself to collect as grisly trophies, and the samples he did send to museums were all used to “scientifically validate” his own pre-ordained conclusions about the racial differences between Europeans and Native Americans,^[10] including “proof” of Jefferson’s own views relating to the genetic superiority of White settlers.^[11] Thomas Jefferson might have been the first to unearth a Native American burial mound, but historians rightly note he was “America’s first scientific grave robber,” not America’s first archaeologist.^[12]

Debt as a Tool to Take Native American Lands

Since the time of Jefferson (and, in large part, because of Jefferson), debt has been used systematically and ruthlessly by the government to acquire Native American lands. Native Americans were not as financially naïve as colonists thought, and more often than not had a sophisticated understanding of the economic games being played. While some believed Indians had a “primitive” economic system and had to adopt the foreign method of trading, if anything the reverse is true.^[13]

In trade, Native Americans frequently outmaneuvered enterprising colonists. Indians adroitly gave gifts to shift the delicate balance of power in their favor, often seeing and playing to the long-term interests in the region.^[14] Tribes also played traders against each other to get the best deal, taking advantage of the multiple European powers vying for control.^[15]

Notwithstanding this, the concept of land ownership was a uniquely foreign one to Native Americans. Indian tribes universally held the belief that there was no such thing as private ownership of land, and were bemused by colonial insistence to the contrary.^[16] In Native American societies, individuals had the exclusive right to use a particular piece of land but the ownership was still controlled by the tribe itself.^[17]

Jefferson favored the removal of Native Americans and the occupation of their land.^[18] He also appreciated that such a task would be tremendously difficult. Powerful Indian tribes and alliances controlled many of the areas Jefferson wanted and a newly founded country was going to be hard-pressed to assimilate them.^[19] Jefferson sought to play both sides of the conflict. On the one hand, he had to appease the zealous settlers who were eager to take Native American land. On the other, he wanted to “cultivate the love” of Native Americans even as he sought to rob them of their property.^[20]

Debt provided the perfect opportunity for Jefferson. He understood Native Americans had a fundamentally different conception of land ownership, and as an expansionist he understood how he could use this to his advantage. As early as 1802, Jefferson asserted in his private notes that the United States should “encourag[e] [the tribes and] their leading men to run in debt … [for] they will always cede land to rid themselves of debt.”^[21]

Notwithstanding Jefferson’s private agenda, the policy proved to have an extremely wide impact and set the tone for the relationship between the United States government and Native American tribes for decades to come. Crucially, Jefferson stated that the government would be the one “sell[ing] so low as merely to repay us costs and charges,” which “private traders cannot do for they must gain,” in essence setting up the role of the government to push tribes into debt.^[22] This quickly became standard colonial procedure, with Native American land being included in virtually every contract as collateral.^[23]

In a specific example of how insidious this practice of debt collection was, one tribe was fined for “disturbances” and asked to pay an impossible fee of 595 fathoms of wampum.^[24] If they failed to do so, however, the government would “kindly” allow them to pay with their land, effectively taking their property under the guise of generosity.^[25] Debt was frequently issued not because the creditors expected the borrower to be able to pay them back, but because they wanted the specific property that could be seized when they foreclosed.^[26]

The Doctrine of Discovery and the Right of First Refusal

Seeking the spoils of their conquest in the “New World,” many European nations employed the Doctrine of Discovery—an implied rule wherein the nation that discovered an area enjoyed the first lawful claim to it. The Doctrine’s adoption in the United States meant that when Jefferson sent Lewis and Clark to explore the Northwest, the government claimed a stake in the land they discovered.^[27] In effect, the Doctrine transferred property rights from Native Americans to the government. Essentially, the government maintained the right to be the sole buyer of Indian lands and Native Americans lost their legal status as the owners of their own property.^[28]

In addition to employing the Doctrine of Discovery, Jefferson enforced the less focused-on idea of the right of first refusal. Sometimes called preemption, the right of first refusal was a corollary of the Doctrine of Discovery, and provided that discovering nations had the sole right to buy land that had been “discovered” from those who had occupied it.^[29] Jefferson did not hesitate to employ this concept, and knowingly relied on it to further his agenda many times.^[30]

The far-reaching implications of the Doctrine of Discovery continue to impact Native Americans to this day.  In 1903 the United States Supreme Court ruled that the Doctrine enabled the United States to walk back on the decisions it reached in treaty agreements with Indian tribes, effectively rendering them useless.^[31] In the 1955 case of Tee-Hit-Ton Indians v. United States, the Supreme Court, cited the Doctrine in declaring that the government was not obliged to pay reparations for the taking of Native American land.^[32]

Conclusion 

In the excavation of burial mounds, Jefferson labeled himself the first “archaeologist” and subsequently popularized the looting of Indian remains. In the taking of Indian land, Jefferson once again proved himself the unique propagator  by embracing the use of debt. Even the concept of the Doctrine of Discovery was legitimized by Jefferson. It may have been Supreme Court Justice John Marshall who finally codified the Doctrine into United States law, but Jefferson had been operating under the idea for years before then by believing in the right of the government to take Indian land.^[33] After the decision was made, it was Jefferson who authorized the expedition to explore the Pacific Northwest, a strategic choice that increased the legitimacy of the government’s claim to the land under the Doctrine of Discovery. In all these ways, Jefferson firmly cemented the disadvantaged position of the Native American people for the foreseeable future.

* Edward R. Adams, Stanford University (Class of 2025; Majors: Mathematics and Computational Science, Economics; Minor: Native American Studies).  My Choctaw heritage inspired this Essay after I learned that the policies designed by Thomas Jefferson repeatedly forced my ancestors to give away their lands to the United States in order to satisfy the debts they owed to traders of European ancestry.

^[1] “When Government Fears the People … There Is Liberty (Spurious Quotation),” T. H. Jefferson Monticello, https://www.monticello.org/site/research-and-collections/when-government-fears-people-there-liberty-spurious-quotation (last visited Mar. 4, 2020).

^[2] The word “Indian” is something of a misnomer, created when Columbus mistakenly thought he had “discovered” the subcontinent that bears the name. Though the term has frequently been used pejoratively (and before the adoption of the phrase “Native American”), I will here use it without quotation marks to place the paper in the historical context that existed in the time of Jefferson. Presently, there exists no universally accepted term to refer to the Indigenous people of the United States. 

^[3] Megan C. Kassabaum, Monumental Grandeur of the Mississippi Valley, Expedition Magazine, 2015, at 11-13.

^[4] Id. at 12.

^[5] Ronald Hatzenbuehler, Questioning Whether Jefferson Was the “Father” of American Archaeology, History and Anthropology, 2011, at 122.

^[6] Id.

^[7] Id. at 124.

^[8] Id. at 123.

^[9] Id.

^[10] John B. Winski, There Are Skeletons in the Closet: The Repatriation of Native American Human Remains and Burial Objects, 34 Ariz. L. Rev. 187, 191 (1992).

^[11] Roxanne Dunbar-Ortiz, An Indigenous People’s History of The United States 231 (2014).

^[12] David Hurst Thomas, Skull Wars: Kennewick Man, Archaeology, and the Battle for Native American Identity 35 (2001).

^[13] Robert J. Miller, Economic Development in Indian Country: Will Capitalism or Socialism Succeed?, 80 Or. L. Rev. 757, 765-766 (2001).

^[14] Tim Alan Garrison, Review Essay: Recent Works on the History of the U.S. Indian Policy, 36 Tulsa L.J. 415, 419 (2000).

^[15] K-Sue Park, Money, Mortgages and the Conquest of America, 41 Law and Soc. Inquiry 1006, 1021 (2016).

^[16] Id. at 1024.

^[17] Miller, supra note 11, at 768-769.

^[18] Robert J. Miller, Native America, Discovered and Conquered 86 (2006) (“The one thing Thomas Jefferson really wanted from Indian people was their land.”).

^[19] Gregory Ablavsky, The Savage Constitution, 63 Duke L. J. 999, 1004-005 (2014).

^[20] William Hogeland, Autumn of the Black Snake 156 (2017). Another reason for the secrecy of Jefferson’s agenda is that he personally stood to benefit from the sale of land. Jefferson had inherited extensive ownership in a land speculation company, an investment that would tremendously benefit him if it turned out correctly. Miller, supra note 16, at 61. 

^[21] Id. at 87.

^[22] Id.

^[23] Park, supra note 13, at 1025.

^[24] Id.

^[25] Id. at 1028.

^[26] Id. at 1029.

^[27] Robert J. Miller, Americans Indians, The Doctrine of Discovery, and Manifest Destiny, 11 Wyo. L. Rev. 329,  337 (2011).

^[28] Blake A. Watson, The Doctrine of Discovery and the Elusive Definition of Indian Title, 15 Lewis & Clark L. Rev. 996, 1010 (2011).

^[29] Robert J. Miller, The Doctrine of Discovery in American Indian Law, 42 Idaho L. Rev, 1, 6 (2005).

^[30] Id. at 79-80.

^[31] Michael C. Blumm, Why Aboriginal Title is a Fee Simple Absolute, 15 Lewis & Clark L. Rev. 976, 992 (2011).

^[32] Id.

^[33] Janine Robben, Myths, History and Destiny, 69 Oregon State Bar Bulletin, 17, 19-20 (2009).