Rendering settler sovereign landscapes: Race and property in the Empire State

Introduction

In March 2005, the US Supreme Court made a decision that shook the Oneida peoples, rippled through Indian Country, and vexed Indian Law experts. In an 8–1 ruling against the Oneida Indian Nation of New York, the Court decided that the Oneida Indian Nation of New York (ONNY) could not expand its sovereign right to tax-exemption onto land that had been repurchased by the ONNY in the late 1990s; land which had been illegally purchased from the Oneida in 1807. The peculiar and vague phrase coined by Justice Ginsburg in this 2005 case, “the distinctly non-Indian character of the area,” has been redeployed as a legal rationale against other Native land claims across Indian country. While the “character of an area,” region, or neighborhood, in legal discourse refers to the concept of customary use, Justice Ginsburg qualified the term with the racial referent “non-Indian,” changing the meaning distinctly. A Euroamerican settler common sense understanding of the “non-Indian character of the area” undergirded the Court’s assumptions about the finality of Oneida dispossession, and the nature of Oneida sovereignty, despite the vagueness of this term in the decision.

At the turn of the 18th century, surveyors and corporate and state officials who dealt in the first land markets of Western New York, a six-million-acre tract of land that settlers called “Genesee Country,” were unambiguous in their view of the character of “Indian land.” For the Haudenosaunee, the confederacy of six Native nations including the Oneida, often anglicized and mis-named the “Iroquois,” this area refers to the Confederacy’s western-most tribal homelands. Despite multiple violent acts of colonial displacement by the British American colonies and the United States government and military, new Haudenosaunee settlements, including multi-tribal sites, arose in this region next to older communities, maintaining and re-establishing relationships that made them Haudenosaunee places (Mt Pleasant, 2007). For post-Revolutionary, Euroamerican settlers however, the area between the eastern shore of Lake Erie and the Finger Lakes was imagined as the Western frontier of a growing empire. Thomas Jefferson’s natural historical arguments about the deficiency of Indians and superiority of Anglo-Saxon governance materialized in his research and development of the national “Towns and Ranges” land survey system. When surveyor Joseph Ellicott put these units and tools into practice to make land into property to be governed as Western New York, Jefferson’s land survey technique was his guiding principle. This article shows how anti-Indigenous racism animated the technopolitical strategies that etched Euroamerican settlement into the geographies of upstate New York around the turn of the 18th century, and how these racial figurations of land and livelihood are reanimated to enact new forms of violence and legal dispossession that Indigenous people today both reckon and refuse.

Critical legal and Indigenous studies scholarship on this 2005 court case has focused on Justice Ginsburg’s anti-indigenous invocations of the Doctrine of Discovery, the doctrine of laches, and processual problems in the case (Borgman, 2006; Braaten, 2007; Duthu, 2008; Matthews, 2007; Rifkin, 2009; Singer, 2005; Sunderlin, 2006; Wandres, 2006). It is certainly vital to continue to question, for example, the validity of the 1831 Supreme Court decision Johnson v. McIntosh, which wrote the Doctrine of Discovery into federal law. The legal theory of right of occupancy of Johnson incorporates into standing US law an assumption of “the racial inferiority of Indian people” (Duthu, 2008: 73). No analysis of the 2005 case yet interrogates the racial qualification of customary use held in the phrase “non-Indian character of the area.” As an instantiation of settler common sense, the phrase “non-Indian character of the area” unveils spatial and temporal aspects of the colonial “modes of rationalization” (Moreton-Robinson, 2015) about race and place that maintain anti-indigenous settler sovereign landscapes of property and right.

I use the term settler sovereign landscapes to denote particular racial and spatial orderings of people and things that emerged in the half-century after the Revolutionary War. By demonstrating the co-production of settler landscapes and settler sovereignty, I confront the everyday concept that US American territorial sovereignty was built on stolen land. The maintenance of US settler sovereignty requires that commodified property in the form of land and labor is regarded as an object (Harris, 1993); however, recent scholarship on colonialism and property in relation to Indigeneity and Blackness avoids simplifying racialized dispossession to theft of either land or labor (Dorries et al., 2019; King, 2019). I show how land’s racialized abstraction transforms land into property in upstate New York as a nation-building project of whiteness that operates “in tandem through identity, institutions, and practices in everyday life” (Moreton-Robinson, 2015: xix). I expand understandings of the specific way property was constructed as a racialized commodity form of land under settler colonialism (Pasternak, 2017), reconfiguring relationships between land and people in space through particular anti-Indigenous conceptualizations of place and polities. This contributes to a growing subfield of Indigenous geography that engages critique from the standpoint of Indigenous practices of place and spatial knowledge (see DeLeeuw and Hunt, 2018). Starting from the Haudenosaunee perspective that land cannot be stolen because it is a relation and not an object, I also draw on Massey’s (2005) analysis of space as relational and heterogenous to interpret the social and territorial practices that are continually put to work to maintain Indigenous dispossession, without false concession that Haudenosaunee relationships to their lands deemed “stolen” have been broken.

Euroamerican settlers’ practices of commodifying Indigenous homelands into land-as-property in Western New York was a process of settler colonial statecraft which overlaid but did not extinguish, Haudenosaunee sovereignties (see Daigle, 2016; Rickard, 2011). ¹ Haudenosaunee still maintain relationships not reducible to a rubric of commodified property with those lands. To maintain the objectification and commodification of land in US law, the Supreme Court in Sherill proclaimed that the ONNY may take back the land if they treat it as property in perpetuity, but cannot rearrange those relationships between land and people in line with their articulations of sovereignty. The genesis of these settler sovereign landscapes reveals how Euroamerican settlers’ practices of turning Indigenous homelands into property linked government and improvement of populations with the production of state territory. ² US American territoriality and governance is structured on anti-indigeneity vis-à-vis hierarchical categories of difference that originated in Renaissance Europe’s travel narratives (Moreton-Robinson, 2015; Trouillot, 2003) Land surveys produced land as abstract space and reordered relationships between land, its characteristics, and its people along these same colonizing hierarchies. Spatial grids and land systems are forms of disciplinary power as scholars within the field of geography have shown (Blomley, 2003; Elden, 2007). Scholarship on mapping has analyzed the survey process as property’s escort that effected a new way to claim rights to land outside of customary claims. The land survey has been part of violent practices of dispossession (Blomley, 2003; Edney, 2009).

This article attends to the racial tenets and civilizational discourse that shaped the units, tools, and subjectivities formed through the practice of the first land survey of Western New York. The theories of racial difference that ordered the characteristics of territory used to compare Indian and non-Indian land and livelihoods at the turn of the 19th century—towns, infrastructure, agriculture, and forestation—has become settler common sense at the turn of the 21st century (Rifkin, 2013; see also Vizenor, 1999). I demonstrate the construction of settler sovereign landscapes—a particular racial rendering of land and labor that organizes men and things in space ranked along a civilizational hierarchy—as key to territorial strategies of Euroamerican occupation and settlement in the US. I first analyze the techniques of law and land survey conceived by Thomas Jefferson that were soon put into practice specifically in Western New York. I then discuss how these techniques of property-making reconfigured relationships between land and people during post-Revolutionary dispossession and occupation of Haudenosaunee homelands in New York, known colloquially as the “Empire State.” I conclude by examining how these practices continue to constitute settler geographies, meaningfully and materially, over and against Haudenosaunee sovereignties, producing landscapes in upstate New York that are entangled, contested, and at times incompatible.

Men, measures, and polities

The survey of Genesee Country lands reimagined relations—between land, people, and other-than-humans, such as trees, rivers, and animals—into settler colonial hierarchies, as the next section will show. These hierarchies of race and life animated the very units and tools used to measure the land into parcels of property. This section traces the genesis of those units and tools in order to contextualize the role of the land survey in making property out of these “frontier” lands west of the Proclamation Line and the Genesee River. Today, this rough geographical line also marks where New York is divided between the pre-Revolutionary British land parcelization system of Metes and Bounds, and an early version of the Townships and Ranges survey system that was first imagined by then-governor of Virginia, Thomas Jefferson, and later adopted in the 1785 Land Ordinance. The 1785 Land Ordinance in general and the survey system in particular were meant to bring “order” and governability—including taxability—to the process of piecemeal land settlement by small land-owners, and assure that land companies would be able to profit from the process (Piasta-Mansfield, 2012). The surveys also aided land companies and the US government in selling parcels which they had never visited. Pre-revolutionary colonies had used the system of Metes and Bounds, in which property had only been marked onto the land with rocks or trees, and property lines could be lost as forests grew over them. Once surveyed in relation to the astronomical guidelines of meridians provided by transit devices and then marked and recorded in a surveyor’s map, property lines would become verifiable in perpetuity (Ellicott et al., 1937: 83). The surveys allowed land to be abstracted into verifiable and thus heritable property.

Land survey techniques had been taken up with new vigor in Europe in the 1600s as a growing English gentry demanded the measure of landed property and enclosure of the commons. In settler colonial contexts, the practices and tools of land survey were co-constituted with new racial hierarchies. The Revolutionary push to distinguish the US American individual and collective body from both the English and the Indian coalesced at the axis of land, labor, and governance (Palmer, 2020). US American claims of authority to govern the space of the colonies without subordination to the Crown were often legitimated through Lockean claims of collective “improvement” to the lands and colonies, a borrowed English penchant (Rifkin, 2013: 329), which took on particular racist meanings in this colonial context. It was through the survey and mapping of lands in colonial US America that the idea of improving the land became a metonym for a racial project carried out by a population of “improved” people: an ontological claim linking whiteness and settler sovereignty. The white, Euroamerican political subject and the spaces (s)he would occupy or govern was conjured in reference to multiple obverse yet related figures. Jefferson’s racial theories of humanness figured people of African descent as unable to labor freely alongside white people. Among others, King’s (2019) analytic of Black fungibility refutes the category of labor for its inability to encompass how Blackness is constitutive of concepts of order in US colonialism. The Indian, as a racial figure shaped partly through Jefferson’s natural historical theories and attendant political techniques, though not reducible to the strictures of the laboring subject was also co-constituted with Euroamerican concepts of labor and land.

The content of the US American claim to territory and governance merged a white laboring body with a particular kind of landscape—or rendering of land. This dynamic became manifest beginning in the mid-1780s, when then-governor Thomas Jefferson was tasked with developing a method by which lands west of Virginia would be divided and recorded in a new federally managed public land office. Jefferson was the key US American writer who translated the theoretical figure of the “savage” from European philosophy into the living American Indian. While he claimed that Indians had the same physiological claim to humanity as white people, ³ Jefferson postured that Anglo-Saxon life ways and governmental practices were superior, and civilizationally “advanced,” to those of the Indians (Williams Jr., 2012). He offered conjectural “proof” that European food production is abundant, while that of Indians is scarce: “Where food is regularly supplied, a single farm will shew [sic] more of cattle, than a whole country of forests can of buffaloes” (Jefferson, 1999: 65). For Jefferson, Indians “lived principally on the spontaneous productions of nature” and did not partake in agricultural practices to create tradeable stock (Jefferson, 1999: 65). Jefferson’s ideas of Indian livelihoods put Lockean concepts of labor to work—particularly the role of labor in mediating the relationship between land and bodies to create property—to make an argument that Indians were developmentally incapable of productive labor on the land beyond “drudgery” or “mere survival” (Jefferson, 1999). Adapting a stagist racial hierarchy from Scottish enlightenment philosophers (Williams Jr., 2012), he argued that without producing excess goods and requisite markets and trade, no society with systemic government had arisen among the Indians, and thus, no nation or national territory. In practice, these anti-Indigenous racist theorems of labor left Indians “free” but in the sense that once “freed” from their land—i.e., dispossessed—Indians were “free” to sell their labor on the market. Under the legal rubric of preemption rights and the extra-legal violence and ruthlessness of dispossession, Indians remained unfree to keep or sell land-as-property fairly on the market. This definition of freedom conscripted Native people and polities into the Euroamerican settler framework of law and property. Jefferson’s seemingly redemptive welcome of the Indian into his “humanity” naturalized Euroamerican colonization in law, eclipsed the violence of settler occupations, and disavowed Indigenous governance and claims to land.

Jefferson’s vision for the United States, or his “Anglo-Saxon dream” as Horsman (1981: 22) describes it, was rooted in his promotion of a racial myth of white Anglo-Saxonism. He claimed that his esteemed democracy and independent agrarian familialism was rooted in Saxon practices that had survived the Norman conquest of the 1000’s despite the imposition of monarchal and feudal systems (Horsman, 1981). Foreshadowing what would eventually be called manifest destiny in the 1840s, Jefferson believed US American colonization to be a natural historical trend maintaining the territorial expansion of Anglo-Saxons—a supposedly superior racial group of people—that would result in the natural disappearance of the Indian. ⁴ Jefferson crafted a concept of race that eclipsed real violence, as evinced in his support of the doctrine of discovery and his policies for Indian removal, and also offered a “counter-narrative, embraced by those contesting sovereign notions of power and right” (Stoler, 1995: 68). The Anglo-Saxon settler in US America was both superior to the European who lived under a condition of “too much law” and to those who lived under, “no law, as among the savage Americans,” Jefferson suggested referring to Indians (Jefferson, 1999: 100). He framed his counter-narrative as a moral imperative and historical destiny linked to reaching a white societal utopia. Yet beyond a mere racial counter-narrative, Jefferson aimed to pave the way for the US American nation’s diffusion of power through calculable techniques rooted in his racial theorems.

Particular to Jefferson’s circumstances was his practical experience with land survey and his influence shaping early US American practices of governance and territoriality. Thomas Jefferson’s father, Peter Jefferson, was a wealthy surveyor in Virginia, where he was employed mapping the borders of states, land grants, and plantations, and as a county court magistrate. With the leverage of his father’s political connections, Thomas Jefferson launched his own military, legal, political, and scientific career. When he formulated his scientific spatial division of land which he claimed was based on natural law, he did so through a racial agrarian imaginary that was linked to a system of governance. Writing to an English political reformer later in 1824, Jefferson explicitly laid out the Anglo-Saxon racial counter-narrative that animated his earlier plans for Virginia and the Western states, where he had been Governor. The division of the land into counties measuring six square miles, aligning with “the hundreds of your Saxon Alfred,” was the basis of measurement that would organize local agrarian life and representative government. He imagined each township as “a small republic within itself,” containing a school, a militia, police, infrastructure, and a location for local elections (Jefferson, 1824). ⁵ Jefferson called the township, “this most admirable of human contrivances in government” (in Pattison, 1957: 46). For Jefferson, this emerging Anglo-Saxon system of material and social reproduction and governance began with the survey of colonized lands.

Jefferson spent years researching and devising a survey system, hoping that “the globe of the earth itself … would furnish an invariable measure” (in Pattison, 1957: 49). He sought to standardize the measure of an acre following the ancient farming practices of Anglo-Saxons, appealing to the idea that the colonization of the United States was racial destiny. Dividing the country’s land by the “Anglo-Saxon acre,” was thus not only reasoned for its numerical neatness—divisions by four and by decimals. It was also a political choice sparked by settler imaginary of racial superiority and belief in natural law. He eventually chose the Gunter’s Chain: an English tool for measurement devised in 1624 to restore Saxon measures. This device was easy to transport long distances of roadless and forested terrain surveyors traveled. Its many links were flexible and compact; it could be easily packed or thrown over a shoulder. Measuring 66 feet long, equaling 22 yards or 4 rods, each chain has 100 links. There are 10 square chains to the acre, 80 chains to the mile, and 640 acres to the square mile. Four rods equaled one day’s worth of agricultural work, and 40 days of work constituted one acre. The measure of a rod was based on the amount of land that was commonly plowed in one day by two oxen pulling a wooden plow (Pattison, 1957). Centering a white agrarian imaginary of livelihood and labor, the wooden plow implies the formation of a subject who masters both the tool through his productive labor, and who masters the land which he plows. The figure of the plowman is advanced to the position of property-owner once a line is drawn around his territory. Thus, European modes of production and a white Euroamerican subject form the sublimated elements of commodified land-as-property, replaced by the mark of an acre on the ground or on a map.

These land measurement standards were also a deliberate move towards constructing a national state space for independent Anglo-Saxon government. The Townships and Ranges survey system was first put into practice by Thomas Hutchins in his 1785 survey of the Seven Ranges, after the 1785 Land Ordinance went into effect. Andrew Ellicott, brother of lead surveyor of Western New York Joseph Ellicott, was a surveyor on the Seven Ranges Survey. In 1791, Andrew Ellicott was hired by Jefferson to survey the new federal city of Washington, DC. Jefferson directed that the US meridian be set running directly through the Capitol Building, symbolically linking the survey and measurement of land for property to the governing center of the new nation-state. Like Jefferson, Andrew Ellicott was eager to distinguish US American cartographic baselines from those established in the UK. In an April 1801 letter to Jefferson, Andrew Ellicott discussed the distance of Washington DC from the increasingly standard Greenwich meridian line. He commented, “I have long been wanting our longitudes to be reckoned, or counted, from our own Capitol, and not from a place within another country … We appear yet to be connected to Great Britain by a number of small ligaments, which tho [sic] apparently unimportant, are nevertheless a drawback upon that absolute independence we ought as a nation to maintain” (in Kovarsky, 2014: 101).

Land survey as a technique for commodifying land and state-formation was preceded by other legal and technopolitical strategies of Haudenosaunee removal in upstate New York. The first Euroamerican claims to the land, made by the Commonwealth of Massachusetts through the British Crown’s colonial charters, rested on the Doctrine of Discovery (Chazanof, 1970). Confirmed in a Papal Bull of 1493, the Doctrine of Discovery claimed that Christians could justly kill, and seize land from, any people who were not subjects of a Christian monarch. This form of Indigenous dispossession via racialized “just war” enabled in law by the Doctrine of Discovery was declared US policy by Thomas Jefferson in 1792 and was retroactively codified into federal law in the 1823 supreme court case Johnson v M’Intosh. ⁶ The Euroamerican imaginary of ownership indicated by colonial land charters—of thousands of miles of valleys and plains and steppes and mountains never inhabited or even passed through by the people who claimed them as property—was a mere textual formality until after the Revolutionary War. After the war left them unhindered by the British Crown, land companies and other speculators and settlers pushed passed the 1763 Proclamation Line, which ran through the middle of what is today’s New York State. ⁷ In 1788 the Holland Land Company, a consortium of six Dutch investors, purchased preemption rights to “Genesee Country” lands west of the Proclamation Line from Philadelphia senator and financier Robert Morris. Preemption rights—the right to be the first person in line to purchase land from Native people when or if they offered it for sale—constituted a large portion of early US American land markets.

Preemption rights are a largely understudied legal construction, though it was a tenet of the Doctrine of Discovery and a key technology of Indigenous land dispossession both before and after US American independence. The right of preemption, at the time, aided the legal construction of a tentative settler sovereignty legally founded on the subordination of Indigenous jurisdiction (see Ford, 2010). Enacting the state’s imperium, preemption rights centered European discourses of land-as-property in Haudenosaunee lands before dispossession or acquisition of that land even occurred, suspending Haudenosaunee practices and governance and placing the onus of defending their land from Euroamerican ruthlessness and violence on Haudenosaunee people (Piasta-Mansfield, 2012; Pasternak, 2017). In practice, pre-emption rights were treated by investors as little more than a legal hoop to jump through. Morris sold his Genesee Country preemption rights to the Holland Land Company under the agreement that he would only be paid by the Company when all Indian title was extinguished. In order for Morris or the Company to gain a return on their land deal, the Haudenosaunee could not continue to live on their homelands (Goldstein, 2008). Morris and other agents of the land company and local politicians misappropriated Indian title away from the Haudenosaunee through various tactics including bribery, threats, exploiting existing animosities between Haudenosaunee leaders, and convincing Haudenosaunee people that if they did not sell land to the Holland Land Company that squatters and other companies would take their land for less or no money at all (Hauptman, 2001). ⁸ The legal construction of preemption rights made returns on investments in Indian land, such as the Company’s, tenable by legally defining Indians as occupants, rather than owners.

The next section discusses how the concept of taming or “improving” the land through labor, carried out by an “improved people,” was a key feature of white Euroamerican settler selfhood and governance. It was formed precisely through racist contradistinctions to valuations of labor, livelihood, and polities of the Indian. The land survey linked the composition of landed property to particular spatial practices, forms of social reproduction, and human and non-human interactions, all categorized through racial taxonomies and inscribed into the very units and tools that define that property in perpetuity. The Anglo-Saxon acre was neatly divisible into the mile, and six square miles measured a town as a unit of governance. US government practices then took their “place” within these measurements. In the revolutionary discourse against British rule, Euroamerican settlers imagined a property-based nation-state devoid of sovereign Indigenous territoriality.

Rendering settler sovereign landscapes

Eighteen years after the Sullivan Campaign, in which President Washington ordered the US Army to slaughter, starve, and chase the Haudenosaunee out of their homelands in today’s upstate New York, ⁹ the next invasion traded rifles and torches for Gunter’s Chains, compasses, and the zenith telescope for astronomical measurement tracing parallels of latitude. The process of surveying Genesee country employed the labor of a team of 150 men trained by Joseph Ellicott and took two years between 1797 and 1800 to complete. The land survey was undertaken to bring order to the process of land sales and colonial settlement. While the map and measures that Ellicott produced from this survey was the central objective, the survey process and subsequent development and sales relating to the Holland Land Company’s purchase were key aspects of constructing settler sovereign landscapes in Haudenosaunee homelands. This section demonstrates how agents of the Company, agrarian settlers, and other colonial actors drew on a particular ontological and anti-Indigenous racial ordering of people and polities as they made landed property out of Haudenosaunee homelands.

When Joseph Ellicott was hired by the Holland Land Company in 1797, his first assignment was to draw out the demarcations of reserved Indian land. No lands could be marketed as property without first bounding Haudenosaunee peoples in abstract space. In other words, the production of abstract space through the calculative techniques of the land survey aspired to homogenize a white settler governable space, differentiated over and against a racialized Haudenosaunee space. In a July 25, 1797 letter from Cazenove to Ellicott, Cazenove instructed that Ellicott is to give information and advice to the company regarding “the main object of the mission of the Holland Compy. Agents; Viz. to obtain the Indian title of the greatest quantity of the best lands belonging to the Holland Compy [sic]” (Ellicott et al., 1937: 4). Gaining title from the Haudenosaunee was the company’s first priority because their purchase from Robert Morris only guaranteed the preemption rights, not land title. Appealing to the idea that Indians could not hold property, Ellicott, upon completion of the survey, wrote that, the whole of the Land “belonging” to the Company … was “liberated from Indian Claim” (Ellicott et al., 1937: 14). Haudenosaunee across New York State managed to reserve 189,920 square acres of land within the Morris Purchase for themselves, ¹⁰ , though in the words of Cazenove, this was only land to which, “Morris had not yet furnished the Indian title” (Cazenove, undated). Company agents began the survey only three months after the contested and corrupt 1797 Treaty of Big Tree secured Indian Title. Investing significant capital in the purchase of preemption rights was risky but was ultimately seen as a worthy investment by foreign financiers. The specious notion that the Haudenosaunee would certainly sell their rights to the land was presumed inevitable by Company proprietors.

Ellicott’s next assignments for the Company were twofold. First, he was tasked with confirming the exact acreage of the Morris Purchase, estimated at 3.3 million acres, to assure the Company’s proprietors did not overpay Morris. Second, Ellicott was to lay out ranges and townships according to Jefferson’s method in order that the Company map could be made and land parcels sold. Experienced surveyors, including Joseph Ellicott and his brother Andrew, Simeon De Witt, and other less-known men comprised a small part of the work team. Most of the team was Gunter’s chainmen, draftsmen, boatmen and packhorse men, camp-keepers, and axemen. Of the approximately 150 men hired each year of the survey, over 20 were axemen hired to fell trees along the way. To set the astronomical line of the meridian with his zenith telescope, a surveyor needed a clear view of the sky, straight in front of him. In the words of Ellicott, trees “stood in the way of the Instrument” (Ellicott et al., 1937: 99), and a line approximately five feet wide and over 92 miles long was clearcut. Additional trees were felled along the latitudinal and longitudinal lines of townships and ranges in a process called “opening the lines” (Ellicott et al., 1937: 36). The land survey both ushered in deforestation by parceling land for sale to Euroamerican agriculturalists, and also necessitated felling trees and clearing forests for its realization.

Through the 18th century, “the forest” in Euroamerican settler discourse had become a metonym for a wilderness that was both savage and unhealthy. Settlers’ lack of local medicinal knowledge, lack of knowledge of the location of drained lands, and insistence on settling in one location rather than cycling through settlements to let them regenerate, often resulted in high rates of illness. Clearing forests was a primary aspect of taming and “improving” a so-called wilderness. Even before Jefferson articulated his racist geographical schemas, early colonists defended the character of new settlements from European theories of climate-induced racial degeneration by arguing that their work deforesting the landscape had altered the climate to a more “ideal state” for a Euroamerican population. It was widely considered that “a country, in a state of nature, covered in trees” would produce a lower race of people, as Euroamerican physician and politician Hugh Williamson wrote in the 1770s, but that as forest was cleared America would become, “a proper nursery of genius, learning, industry, and liberal arts” (in Fleming, 2005: 25). More than an intellectual exercise, technopolitical fixes to environmental questions of racial degeneration or civilization were part of public planning. For example, in a lecture to Philadelphia’s American Philosophical Society in 1794, Irish physician Thomas Wright suggested that draining marshes was a way to make the country healthier: “let the surveyor general mark out a tract of say 100 or 200 miles in a right line to be cleared of trees; then every blast from these two opposite points will ventilate 200 miles of country, bearing along the fumes of all the marshes” (Wright, 1799: 246). In Wright’s estimation, common survey practices could help drain marshes and bring health to the settlers. The hard labor of clearing the forests to allow European cultivation styles in Genesee Country lands after their occupation did not solely fall on white yeoman. These land sales were advertised widely, and Euroamerican settlers from US Southern states migrated to New York, bringing with them enslaved Black people to clear forests, sometimes transplanting entire plantations onto dispossessed Haudenosaunee lands (Gerard-Little et al., 2016). Ellicott’s survey of the Morris Purchase effected this clearing of the land itself, escorting in a racist system of production onto racialized lands.

When Ellicott used the Gunter’s Chain to survey the Morris Purchase, he adhered to a standardized land measurement as much as he adhered to the ideologies behind those measures. Writing out his plans in accordance to directions from the Holland Company’s primary agent, Theophile Cazenove, Ellicott aimed to subdivide the land, “into towns of six miles square, with a map of each town accompanied with field Books descriptive of land, waters, Mill seats, Plains, Valeys, [sic] mines minerals, etc” (in Chazanof, 1970: 25). Surveyor’s fieldnotes and reports that accompanied the maps during this era of Westward moving invasion of Native lands were meant to be a methodical reportage of waterways, watersheds, forests, tree and plant species, cleared lands, and notably fertile lands. These features were documented in order to inform potential buyers who wished to transform them into the irrigation sources, fields, meadows, pastures, and roads that appeared as an ordered landscape to a Euroamerican gaze. Ellicott’s final map, shown below in Figure 1, depicts the land divided into six-mile squares of 16 and 15 columns. There are no Haudenosaunee place-names depicted on the map or written into the attending field notes. The only trace of Native people existing in this abstracted representation of space is the demarcation of their reserved lands and an “Indian path.” Marking off reserved Indian land with hard double dashed lines, the map invokes a sense of Native containment to the Euroamerican settler who would consult this map at a local land office before purchasing tracts. Though concealing the subject position of its authors, the map shaped the spatio-subjectivities of its makers and viewers (Haraway, 1988; Harley, 1989). Representing reserved Haudenosaunee lands as permanent and contained spaces outside of a commodified property order, the map implies a carceral geography—assuring land buyers that they would be safe from spatially incarcerated Indians—over and against a mobile Haudenosaunee spatial practice.

While the map constituted a containment and erasure of Haudenosaunee geographies in represented space, a racial figuration of the Indian was central to the construction of legal title to this land, and the allurement of Euroamerican people to the land. Company agents and US politicians wrote of the Morris Purchase as part of the edge of the Western “frontier” of the original thirteen colonies. The “frontier” is and was a material-semiotic of US colonialism: it is an abstraction that had real effects on spatial politics of Euroamerican settlement that transformed space and people of the “frontier,” and politics on the east coast. The concept of the frontier in the US has always been constituted racially. Distinguishing political division of space from lawless space, references to frontiers create a “space of exception” for Native peoples, eliding questions of Native nationhood and sovereignty (Rifkin, 2014). In other words, the fact that the geographical term used by Euroamerican settlers for space in which Native territory and US territory met was not “border,” but rather specified as a “frontier,” is a discursive signifier that Native political formations and their territorial claims were not regarded by colonial agents as legitimate or lasting. That Western New York was generally understood by Euroamericans as a frontier signified violence and volatility to potential buyers, thus was a hindrance to Ellicott’s task to sell land to speculators and a call for him to civilize and tame the landscape.

However, the land survey alone was not what state officials, land company agents, and even the occupying yeomen thought would bring order to the landscape. As Ellicott brought the land survey to a close in 1800, he took a permanent position as primary agent for the Holland Land Company. He was tasked with selling plots and facilitating Euroamerican settlement on the lands while seated in Batavia, NY. He recognized that larger land buyers would not likely show interest in plots with no nearby transportation routes, stores, or mills, or which had not been cleared and built upon in a way that would immediately allow for the replication of English-style agricultural production and trade. ¹¹ The area was also quickly becoming known for what was called “Genesee fever,” as Euroamerican settlers reported coming down with a host of illnesses marked by fevers (Hauptman, 2001). ¹² The material process of the survey physically shaped the landscape but was accompanied by the subsidized infrastructure that would allow Euroamerican labor and civil doings to bring “rational order” to the land. These settler sovereign landscapes not only figured Indians and their polities as anachronistic and dangerous but also made aspects of their life-ways ecologically unfeasible. The small towns in upstate New York that emerged along the lines of the Company’s land survey, measured in the “Anglo-Saxon acre,” altered the ecosystem enough to affect the food available to the Haudenosaunee towns and reservations that remained (Mt Pleasant, 2007). Contrary to popular historical narratives that characterize Euroamerican settlement as a slow Westward movement of intrepid yeoman farmers, much of the post-Revolutionary era’s Euroamerican settlement was materially facilitated by surveys, infrastructure subsidies, the advertising abilities of the companies who profited from land sales, and the ecological imposition of Euroamerican lifeways.

The increasing number of Euroamerican squatters in Genessee Country lands, ¹³ threatened Company profits. In response, Ellicott structured a sale and settlement policy that aimed to preclude squatting that included corporate-subsidized development. Building roads, supply shops, mills, and inns, and investing in water transport were part of a larger strategy to make the lands more appealing to yeoman farmers. It was as much a practical approach towards profit, and a way that Ellicott positioned himself as actively taming the land. He had been instructed to make, “certain Establishments along the old Genessee and Buffalo Creek road … leading from the Genesee River to the East end of Lake Erie.” The first settlement was near the four cabins that Ellicott had stored supplies for the survey team. At each settlement along the road, mapped along the six-square-mile townships of the survey, he oversaw the construction of large cabins that could house a town representative, and also house travelers and their horses. Ellicott personally selected each town’s representative and assured the Company that who he had chosen was loyal and a friend to the “Just rights and interest of the Holland Land Company” (Ellicott et al., 1937: 104). Expanding colonial rule into these lands in the US context of a republican agrarian ideal necessitated expanding rule over territory as much as a racialized population of people in that territory. In a 15 June 1795 letter to Cazenove, one Company agent wrote, “it will be in the best interest of the proprietors to limit this summer the sales at the quantity simply necessary to vivify the settlement.” The agent continues, suggesting that land be sold at cheaper prices to, “some settlers whose character and circumstances would be a precious acquisition to the settlement.” (Major Rover Alden Esq., 1795). What affected the price of land was not the quality of the land, but the subjective quality of the person buying it: the “productivity” of their labor for company interests. The white Euroamerican subject as “pioneer,” as Ellicott called the first occupiers, was imagined as the source of productive labor and life capable of bringing land out of a so-called wilderness. Sketching into the land infrastructures representative of Euroamerican settler order—namely roads, single-family homes, mills, shops, and fields—marked the landscape as valuable and governable, thus ordered and liveable.

The white yeoman farmers who purchased Company property also framed the lands of Western New York, and their presence in them, in these same racial terms. In the 1810s, an allied group of agriculturalists in Western New York petitioned to the state legislature in support of their interests. One speech written and presented in 1820 by settler Isaac Sutterland argues for the taxation of nonresidents, namely the land-sale profits of Dutch proprietors of the Company from which the federal government previously released them. Sutterland’s speech claims that small farmers are, “the actual settlers of a new country, whose labor like the hand of omnipotence, create a new world for the habitation of civilized man—and whose every drop of sweat is Christalized [sic] into Gold, to increase the unnatural wealth of foreign Lords.” Sutterland presents white yeoman labor as a Godly thus supernatural force that transforms wilderness into “habitable” land through the physical efforts expended by their bodies. Positing yeomen as, “the honest and useful settler without whose toil and sufferings the speculators lands instead of yielding him a profit of cent per cent would afford convenient ground for the roaming savage, and shelter for his fellow wanderers, the panther and the wolf,” Sutterland links the rising value of land to the labor of white farming land-owners through the metaphorical transubstantiation of sweat to gold (Sutterland, 1820). He frames white yeomen as active agents whose labor orders and brings value to the land, making upstate New York unsuitable for an Indian imagined to be unproductively roaming across wild, untamed land. Framing so-called civilization of land also through anti-blackness, he omits enslaved Black labor on the land, rendering Black self-possession and humanness unthinkable within settler sovereignty and land-as-property. ¹⁴ Conscripting Haudenosaunee peoples into the racial figure of the Indian or the savage, this racialization disavows the long-standing political institutions and relationships of Haudenosaunee to lands and more-than-human beings that encompass their sovereignty and regenerative lifeways.

The agents of the Company and the small agriculturalists who purchased property from them were in conflict with each other about whether capital or labor was adding value to the land, and who should justly benefit from that added value. A European-owned firm would be able to profit “unnaturally”—not by their own labor but rather by profiting off of the labor of US Americans—decisively against the US Revolutionary morality of independence and representation. Nonetheless, these two constituencies were united in their view of the Haudenosaunee people in whose homelands they were dealing: Indians did not belong on the land, and Indian land was wild and untamed land, low in value, ungoverned, and dangerous. This racist “settler common sense” (Rifkin, 2013) shaped the local land market and settlement. For example, when the Tuscarora wished to expand their reserved lands in the northwest corner of the state, they had to write for special permission through the local Indian Agent not only from the current federal Secretary of War as ordered by the 1790 Trade and Intercourse Act but also from the Company itself. Despite the Indian Agents’ rigorous adherence to the Trade and Intercourse Act when Indians tried to purchase land for themselves, when it was purchased from Haudenosaunee by Euroamerican settlers the Act was often ignored. The Oneida lands that were in question in the 2005 City of Sherill case were purchased against the Act’s laws in the early 1800 s. Though the US Supreme Court upheld this fact in court just a decade prior, this did not preclude the devastating 2005 decision against the ONNY.

Concluding analysis: Colonial unknowing in New York’s incompatible landscapes

When the Supreme Court sent down its ruling on 25 March 2005, the story made the front page of the local Syracuse newspaper, The Post-Standard. Despite the fact that many who in the newspaper’s catchment area are Oneida and other Haudenosaunee, the article took a celebratory tone. The article’s author weaves a David and Goliath tale of the plucky city of Sherrill in their brave “fight against the Oneida Nation” (Coin, 2005). The narrative’s hero is the City’s lawyer, Ira Sacks. He is portrayed as a tenacious son-of-a-shopkeeper who offered to represent the tiny city for free despite being a high-profile New York City lawyer. After losing their case in all of the lower courts, the City didn’t have funds left to afford a Supreme Court case. When the town won the case at the federal level, the article boasts, a public dinner of appreciation was held for Ira Sacks at a local inn. In this narrative, Reason and Order had won.

Embedded in the legal dispute behind Sherill are competing moral economies that, presented as questions of fee simple title and property taxes, hold deeper contestations over the relationships between territory and sovereignty. People in Sherrill and eight Supreme Court Justices conceived Oneida sovereignty as essentially bound to their current reserve and only applicable to tribally identified Oneida members, conceptually mimicking the cartographic carcelization that many maps of “Indian Land” continue to enact. The ONNY’s efforts to enact their sovereign right to tax-exemption on parcels of treaty-guaranteed reservation lands brought contradictory views of land and sovereignty into active tension, and onto a legal stage set on colonial terms. As Simpson has noted, Haudenosaunee refusal to pay taxes is a refusal to play what she calls the game of citizenship: paying taxes are a move that would throw Oneida “out of their own sovereignty into settler citizenship and into the promise of whiteness” (Simpson, 2016: 328). The ONNY’s repudiation of taxes is not reducible to preserving the $8000 for which the City of Sherrill sued. With this refusal, the Oneida maintain that their sovereignty was not extinguished with the lands’ illegal purchase in 1807, nor at any time since. Their sovereignty was merely altered, and overlaid by settler sovereignty: as long as the Oneida people exist, their relationship to the land has not died, only changed. In a geography of refusal, the Oneida figured US settler sovereignty as extinguishable. ¹⁵ The ONNY threatened the power geometry of a US settler sense of place which regards itself as absolute.

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Figure 1.

Ellicott, J. Map of Morris’s Purchase or West Geneseo in New York State. 1801.

With this settler sense of place and its attendant rights and securities threatened, the Supreme Court responded by re-solidifying a settler common sense (Rifkin, 2013) view that colonial occupation is imperturbable law. Ginsburg’s comment that the Oneida would be unable to “rekindle the embers of sovereignty that long ago grew cold” over this land situates and maintains settler sovereignty as absolute and singular. The case itself invoked the same hierarchies of race and place that were explicit when the land was first surveyed. Justice Ginsburg’s opinion reads, “it was not until lately that the Oneidas sought to regain ancient sovereignty over land converted from wilderness to become part of cities like Sherrill.” Like the settler farmer in 1820 above, Ginsburg invokes an anti-Indigenous spatial order of race and place, rendering Indian land a wilderness historically tamed by white settlement. Referencing the doctrine of laches, Ginsburg argues the ONNY had “slumbered on their rights”—or waited too long to reclaim sovereignty over these lands—an insidious argument considering that state and federal governments had prevented New York tribes from bringing any land claims to court until 1974. Additionally, the doctrine of laches in this case was argued as a matter of equity. Considerations of equity refer to a set of legal principles that bars people from asserting their legal rights if doing so is deemed “unconscionable.” Justice Scalia commented during court proceedings that “[b]ecause of the passage of time, you can get damages for trespass. You may even get the value of the land.” While Scalia presented the option of monetary reparations, he upheld that recognition of sovereign control of the land to the Oneida was not possible. He went on to opine that, “[i]t would just create a chaotic situation if we say that you have jurisdiction in the middle of New York state over any pieces of land that you can buy.” Scalia’s suggestion that it would be “chaotic” for the Oneida to reclaim sovereignty over small tracts of land that are just three miles’ drive from their tribal administrative building, strays into the realm of colonial unknowing that “forecloses possibilities of futures otherwise” (Vimalassery et al., 2016: 2). The unsettlement of America is considered chaotic by Scalia, “unconscionable,” and “a terrible situation as far as governance is concerned.” Without evidence to such claims of chaos, Scalia legally reanimates the same biopolitical Indian character that 18th century surveyors trafficked, asserting that the ONNY would be unable to govern this non-contiguous territory. While it is imaginable that the ONNY may receive monetary compensation for land or that they may deal in commodified land, that they may unsettle places by regaining sovereignty over land is considered a form of disorder in the racial trajectory of settler sovereign landscapes.

In a tautological turn of events, when the Oneida Indian Nation of New York aimed to enact sovereign rights on former-reservation lands that they had purchased into trust, as the Sherill decision suggested would be the “proper” way to gain sovereignty over these lands, it was the Sherill decision itself that was cited in later legal arguments denying this request. In this legal narrative the expansion of Oneida sovereign territory remains unthinkable and chaotic. Because Indigenous spatio-political orders pose such a threat to the legitimacy and sovereignties of the modern liberal nation-state, they are constantly erased, contained, and surveilled (Simpson, 2014). Key to understanding a geography of refusal is demonstrating that the technologies of property-making and Euroamerican settlement are not absolute: they can fail and have failed. Haudenosaunee territoriality today is alive within and beyond the legal strictures of recognition. It is one of multiply-entangled landscapes that are both non-contiguous and overlapping, and always contested, despite centuries of efforts by various colonial actors to extinguish the peoples, their knowledge of the land, and their sovereignty with it. ¹⁶ Despite such Supreme Court rulings as City of Sherrill vs. Oneida Indian Nation, the politics of place in upstate New York have not been settled.