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11252 EIGHTEENTH ANNUAL REPORT
OF THE
BUREAU OF AMERICAN ETHNOLOGY
TO THE SECRETARY OF THE SMITHSONIAN INSTITUTION
LSUG-"o7 BY
ae WV... OW HB Iok,
DIRECTOR
iNew O© PAR TS-PARYT 2
WASHINGTON GOVERNMENT PRINTING OFFICE 15899
INDIAN LAND CESSIONS
i IN THE
PED STATES
COMPILED BY
Greville CC ROWE
WITH AN INTRODUCTION BY
Gw~inuUsS MHOMAS
CONTENTS
imirod vet on Mp ye CynOs NOME s eer esas scion causcosaceescuce cess socece Right to the soil dependent on discovery........---...-.-..-.--.-+------ Foreign policy toward the Indians ...-...-- BORE CS ae ot SESE ee apace Lh eS DAMINNNNO NO VaMemnec seers ca ence sigs oe\s< sacs siemens cedenceedos- Mi evenenGhMMOUCypet ae eee sania sis s4e~ cto nte sseetscceecencnceses Me xB Gp shay OG ste cela taste aloo ols) 2e.cs/smie wis ccelessceseecsseccsnt cn Colonial polteystowarditheIndiang. <2... 0... seccc.cescee veces ccs cess The policy,in general .......-.----.-.--. ea Ris eee st scant te eee ae eee WalitaliiGice 2220 ate co0cks Q3S cao CHE SORE ES CREE Eee Eee eee nese eae Moar yl amdpmememem tse praem co tects fate onoctdsmaes stead. tecccnecedes ING? MDI. « no Sa0 oo 3050S 5S eee ee eee eee ee ae a ee ING ACRES 32 hcl SoS S00 TSOP eC eee acs PONTE Yl sneer ee re oS ices no on coms ca see ceb Se esst Lees IMP ER EOINESANS noe 20: HESS COCO eee eee See ne te ieee gee (Conmerg titan ieee teint alan aisle cies = cays oe =) ~ianinie vivre slows See. ciee ese RRO ene ang meerprene ese aries cen ae aceite maine wae eeemes cowed esleSee North Cana linnmemeneey ss evra nanos icin ce ecm oe ciao chesecas teeeaee= DSOULMMUAROUT Hee eee ees Mosc Seys hc oc caeeee neces ece tees ones GeOnD Eee eee ese ats = Se aclnen me cicrigwcareeoses Secewees ates New lanipspine: amor Slaw ale = 2/0 <n ccs ccc ces wecciecencmedindec assess Poliicyiot ube sma recme ues cee ine mms oes cece we wees meee eee wecnesneecee SCL ONGC NT ELS Meena iets Sets Sia cucciaieics aia miele eistenieimye ee ows serrate Schedule of treaties and acts of Congress authorizing allotments of land injaeveralty 2s. nse sens. eel hotn Mesa asags 6 7 Sctheouabeee sees oote oe
PORE O fel AiO! COSRTO MARE ee = ons woe osc sete ees cess cows eucc -sccce
LIST OF MAPS
Number PLATE (COMAOIE, AUG S355 46 Jade cee Sots Sou ee CEU Soo aeeIns SHaeneee 1 OClx. Alabama @iorthern)portion))"2. 0. <----2-- «==> <= <<---=)-=-- 2 CX AMZ OMB ism ease aime am atm ors cl pain ie aieinimnlme 3 Ce PAIZO Mtoe reer ise eas oe oe me ee mike eileen elses 4 CXII. Arkansas 1 ....-.----- SEEBEE ae en eee eek ec nice 5 CGM ea SHIRA ere ae eis oe one = we cle ce ite misie wale cle te Scere anise ia 6 GRciverO alutonmialeeer ra <a oat oc aiyace seems eset ae se ewine 7 CXV. California 2 (with inset special map)-.---.-....--...-. aoe 8 (ao, Clbemrgker ls eos Stee Scoess Shop Seeecroe boos bee Be acnsoeteae 9 COR ni, (Ohl) Olas Aes eee ae eS oee Se nee ee ate 10 CRM aikcona (Northand South) 1222-5 -25-- 7 oe oe -a- oon lee 11 Geb pakota (North and!South) 2 ----22 24-52 sss occ cence 12 Cxoke Dakota GNoriwand South) 3\-----=.---2-- 2-2-2 sl ---- = 13 GUXEMIBN ORI S sone ok cles cSnecissnitsce cent eee pomp eee sa ee oe 14 (CNOA. (CGUHEIE, Jo sacen8 bee Sanee bea peemadeSepeserescagead SP EC ARE 15 (ODOT, Ti) Gea ee eee eee ae eee Be ate 16 (CORSRUMAIIIEANE IS remaster e moe a eae sees eis onc aicetas siete aes see 17 (CRUST, TIM EO Se eoses SS SSI ee Ean aes Beene eae Se peers 18 (ORS OW TL TG Oe Bee ee Seeeee BSSe SSSSee ED Ite Sees See coc ose 19 Cxenaapeliduamandetatss <2 cas so esas onetime eee eines a= 20 CXXVIII. Indian Territory and Oklahoma 1 ..--...-.-.----..------- 21 CXXIX. Indian Territory and Oklahoma 2.-....-.-...----.-------- 22 CXXX. Indian Territory and Oklahoma 3-....--...---..---.----- 23 (BDRM, Tho a2 Sect ge CeO eRe o eae Saat SESS eae Cen seater ec 24 (OBS) TORO, So eso e ESR Cee ee aaa ESe aeeeomee igo aee oa 25 CXXXIM. Kansas 1 ..---..---..---- +--+ 222-22 -2-- 2222 == 2-- ---=-- 26 (GD-O2O81 Ny UQniih sD oe ea epee ee eS ee eo ee enn BSae Bem ersaaic 27 (ODOR Win TDG NS 100 Bae Seneca Ieee or Sareea 28 (CXSRONG Va ep nM erage Sohal stam = slo so eine a t= ei eerie oe m= 29 (OBO. O-\AINE, LVI cl re Pe See eS Se SSCS te eee Se Se see eee coo 3 CXXXVIII. Michigan (Saginaw bay to Lake Erie) -.....---.---------- 31 CXXXIX. Michigan (region about Mackinaw and Detroit) ..---- ---- 32 Gaby Wied) 3353.5 \AS sets oa sce eSS5 seep SeSer Sec ceee sea sess 3 Con IpEIIMENENG Liens sate ca nae cits Soe a lasocc ems Me seiecee sesaicloms 34 CXLII. Minnesota (northern portion) --..--...--.---------------- 35 (OMTILTIL, inlactiaciqy She eee cece ae eee eee eee oe eee eo CMe eerie ea ee eae ak Se leiaens = mami Canina mines 37 (GSTS, Miri err) 2)6 Eo oc. nae SSeS See ese rcEeR mci e Mogae 38 (ODRILAV LE, Min vit 1 eheecS0cSe SCO Enea ee Ra eea roe eae es ssetcaoriar 39 Cixdn aioe teem sa tiasee rae acini an ciate on tet are 2 elele ele 40 OS SDAVIIE, Ibe GED, vesec.eccheaee USSU ROBE EG Ess Doe HOSE En enon. Serr 41 CXLI1X. Nebraska (eastern portion) .--..-.-.--------------------- 42 (Hb. TSENG, . SES SS eC Rp eSC or OEE EOE ee SeSee ee odio s= Serer sore 43 Ciilee Nomen OxtCnel seas = nce ole ocean we clon as on e.cn diene ninsaa es Ad
526
PLATE
CLY.
CLVI. CLVII.
CLVIII.
CLIX.
CLX. CLXI.
CLXII.
CLXIUI. CLXIV.
CLXV.
CLXVI.
CLXVII.
CLXVIII. CLXIX. CLXX.
CLXXI. CLXXII. CLXXIII. CLXXIV.
CLII. CLIII. CLIV.
LIST OF MAPS [ETH. ANN. 18
Number
New Mexico, 22 2. 23 s1ccoece 2 220 ceccesteineeteeens sae ete ror 45 New. Mexico and. Texas (detail) .... 252-52 eeeene- eee eee 46 ING WeVOr ke Sea S28 ooise Se oes e's dacs Sele eee eee eee 47 NorihiGaxolina; portion/of --. 2-22. e-o=sn eee 48 ORO was Aas seis ais so cis alos ce se Sn ok eee eee 49 Ohio (Getail) coe so Sets san oe scares wets eseheae ces 50 Orevon Wee to ssa-clscree ese 2- + - = n8- ce See eee ase eee eee 51 Oreponigies- pect ssccsd cee 3x secs eae as eee eee 52 Reuns yl Vania) Stoo c eter t | neo Se een cn Sa eae eee eae 53 Tennessee (with portions of bordering states) -..---...-..-. 54 Mennesseer(detaill)))/- 2 ee oh. <2. oodte = Sonne ae eee eee a5 Tennessee and Alabama (portions of) ....-.....---.---.---- 56 Texas! (pOLbion Of). oe 2.225. 56-2 a6 oes 25. cee eee 57 Wiig: Soe faseey nate ce clo cc sons osec cclsecs Seo ccee eee eee 58 Wiiahi2 oo a Msecaetess eee sie fcccee cess) tele eee 59 WiGS DIN CLO Ni Lerems serene n casa ee sae ae Sree eres: 60 Washinton Jesse ao eeccat ae acces = ere ete ale Washington (along Admiralty inlet). ......-..--..----.--.- 62 Washington (northwestern) --..--. ...-.-.--.- 2-22 esseee 63 Wisconsin li 25. cece et anee seeseesee- cesses sc Jae 64 WOR COnSINI<) sn eee aer sssnewlesee. crocs codes See 65 \WWaOWNER Es aoe eons oabosSSss6 csi inp sepa meen ESC aE Cenc 66 AYO oe oagos Hoc ag. SCO MOCa: CUCERODICEEB MEE DSSS =e. Sci 67
INDIAN LAND CESSIONS IN THE UNITED STATES
By CHARLES © Roycr
INTRODUCTION 3y Cyrus THOMAS
RIGHT TO THE SOIL DEPENDENT ON DISCOVERY
Among the various problems forced on European nations by the discovery of America was that of determining their respective rights in regard to the territory of the newly discovered continent. The fact that the country was inhabited by and in possession of a native popu- lation does not appear to have been taken into consideration in the solution of this problem.
Each of the great nations of Europe was eager to appropriate to itself so much of the new continent as it could acquire. Its extent afforded an ample field for the ambition and enterprise of all, and the character, low culture-status, and religious beliefs of the aborigines afforded an apology for considering them a people over whom the superior genius of Hurope might rightfully claim an ascendency. The sovereigns of the Old World therefore found no difficulty in convincing themselves that they made ample compensation to the natives by bestowing on them the benefits of civilization and Christianity in exchange for control over them and their country. However, as they - were all in pursuit of the same object, it became necessary, in order to avoid conflicting settlements and consequent war with one another, to establish a principle which all would acknowledge as the law by which the right, as between themselves, to the acquisition of territory on this continent, should be determined. This principle was, that discovery of lands gave title therein to the government by whose subjects or by whose authority such discovery was made, against all other European or civilized governments, which title might be consummated by pos- session. This is clearly shown, not only by the express declarations officially made in behalf of the different powers, but also by the word- ing of the various grauts aud charters allowed by them. However, the
527
528 INDIAN LAND CESSIONS IN THE UNITED STATES _ [evn. ann. 18
opinion of the United States Supreme Court! is so full and decisive on this point that a summary of the statements therein contained will dis- pense with the necessity of furnishing proof of the acknowledgment of this principle from the history of the discovery and settlement of the continent.
Although Spain obtained immense territory in the western continent, she did not rest her title solely on the grant of the Pope. On the con- trary, her discussions with France, Great Britain, and the United States respecting boundaries all go to show very clearly that she based her claims on the rights given by discovery.
France also founded her title to the territories she claimed in America on discovery. Her claim to Louisiana, comprehending the immense territory watered by the Mississippi and its tributaries, and her claims in Canada as well, were based expressly on discovery. In the treaties made with Spain and Great Britain by the United States this title was recognized by the latter. The claims by the states of Holland to American territory were based on the same title, and the contest with them by the English was not because of a dispute of this prin- ciple, but because the latter claimed prior discovery. All the transfers of American territory from one European nation to another were based on the title by discovery; nor did any one of the European powers give more complete or more unequivocal assent to this principle than England. In 1496 her monarch commissioned the Cabots to discover countries ‘‘then unknown to all Christian people,” with authority to take possession of them in the name of the King of England. To the discovery made by these navigators have the English traced the title to their possessions in North America.
In all these claims and contests between the civilized nations of Europe, the Indian title to the soil is nowhere allowed to intervene, it being conceded that the nation making the discovery had the sole right of acquiring the soil from the natives and of establishing settlements on it. This was understood to be a right with which no other Euro- pean government could interfere; it was a right which each government asserted for itself and to which all others assented. Those relations which were to exist between the discoverers and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.
Nevertheless, it must not be understood that the Indians’ rights were wholly disregarded by the powers in planting colonies in the territories taken possession of by them. =
Continuing, the court remarks—
In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded, but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal
as well as just claim to retain possession of it [or rather so much as was necessary for their use], and to use it according to their own discretion; but their rights to
1 Johnsen and Graham's lessee v. McIntosh, 8 Wheaton, p. 548 et seq.
THOMAS] RIGHT TO SOIL DEPENDENT ON DISCOVERY 529
complete sovereignty, as independent nations, were necessarily diminished, und their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made if.
While the different nations of Europe respected the right of the natives as oceu- pants, they asserted the ultimate dominion to be iu themselves ; and claimed and exer- cised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to con- vey a title to the grantees, subject only to the Indian right of occupancy.
The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.
In these statements the court, of course, speaks only from the legal point of view or theory, for it is well known that in their practical deal- ings with the natives the nations of Europe, and the United States also, often failed to carry out this theory. It is also doubtful whether it can truly be said that France fully recognized the Indian title, even theo- retically, to the extent indicated.
The right to take possession regardless of the occupancy of the natives was not only claimed by all the nations making discoveries, but the same principle continued to be recognized. This is shown by the following instances adduced by the court, to which many others might be added:
The charter granted to Sir Humphrey Gilbert, in 1578, authorizes him to discover and take possession of such remote, heathen and barbarous lands as were not actu- ally possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh in nearly the same terms.
By the charter of 1606, under which the first permanent English settlement on this continent was made, James I. granted to Sir Thomas Gates and others, those territories in America lying on the sea-coast between the thirty-fourth and forty-fifth degrees of north latitude, and which either belonged to that monarck, or were not then pos- sessed by any other Christian prince or people. The grantees were divided into two companies at theirown request. The first, or southern colony, was directea to settle between the thirty-fourth and forty-first degrees of north latitude; and the second, or northern colony, between the thirty-eighth and forty-fifth degrees.
In 1609, after some expensive and not very successful attempts at settlement had been made, a new and more enlarged charter was given by the Crown to the first colony, in which the King granted to the “ Treasurer and Company of Adventurers of the city of London for the first colony in Virginia,” in absolute property, the lands extending along the sea-coast 400 miles, and into the land throughout from sea to sea, This charter, which is a part of the special verdict in this cause, was annulled, so far as respected the rights of the company, by the judgment of the Court of King’s Bench on a writ of quo warranto; but the whole effect allowed to this judgment was to revest in the crown the powers of government, and the title to the land within its limits.
At the solicitation of those who held under the grant to the second or northern colony, a new and more enlarged charter was granted to the Duke of Lenox and others, in 1620, who were denominated the Plymouth Company, conveying to them in absolute property all the lands between the fertieth and forty-eighth degrees of north latitude.
Under this patent, New England has been in a great measure settled. The com- pany conveyed to Henry Rosewell and others, in 1627, that territory which is now Massachusetts; and in 1628, a charter of incorporation, comprehending the powers of government, was granted to the purchasers. :
530 INDIAN LAND CESSIONS IN THE UNITED STATES _ [evs ann. 18
Great part of New England was granted by this company, which at length divided their remaining lands among themselves; and, in 1635, surrendered their charter to the crown. A patent was granted to Gorges for Maine, which was allotted to him in the division of property.
All the grants made by the Plymouth Company, so far as we can Jearn, have been respected. In pursuance of the same principle, the King, in 1664, granted to the Duke of York the country of New England as far south as the Delaware bay. His Royal Highness transferred New Jersey to Lord Berkeley and Sir George Carteret.
In 1665, the Crown granted to Lord Clarendon and others, the country lying between the thirty-sixth degree of north latitude and the river St Mathes; and, in 1666, the proprietors obtained from the crown a new charter, granting to them that province in the King’s dominions in North America which lies from thirty-sixth degrees thirty minutes north latitude to the twenty-ninth degree, and from the Atlantic Ocean to the South sea.
Thus has our whole country been granted by the crown while in the occupation of the Indians. ‘These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the Crown, or was vested in the colonial government, the king claimed and exercised the right of granting lands and of dismembering the government at his will. The grants made out of the two original colonies, after the resumption of their charters by the crown, are examples of this. The governments of New England, New York, New Jersey, Pennsylvania, Maryland, and a part of Carolina, were thus created. In all of them, the soil, at the time the grants were made, was occupied by the Indians. Yet almost every title within those governments is dependent on these grants. In some instances, the soil was conveyed by the crown unaccompanied by the powers of government, as in the case of the northern neck of Virginia. It has never been objected to this, or to any other similar grant, that the title as well as possession was in the Indians when it was made, and that it passed nothing on that account.
These various patents can not be considered as nullities; nor can they be limited to a mere grant of the powers of government. A charter intended to conyey politi- cal power only, would never contain words expressly granting the land, the soil and the waters. Some of them purport to convey the soil alone; and in those cases in which the powers of government, as well as the soil, are conveyed to individuals, the crown has always acknowledged itself to be bound by the grant. Though the power to dismember regal governments was asserted and exercised, the power to dismem- ber proprietary governments was not claimed; and, in some instances, even after the powers of government were revested in the crown, the title of the proprietors to the soil was respected.
Charles II. was extremely anxious to acquire the property of Maine, but the grantees sold it to Massachusetts, and he did not venture to contest the right of that colony to the soil. ‘The Carolinas were originally proprietary governments. In 1721 a revolution was effected by the people, who shook off their obedience to the pro- prictors, and declared their dependence immediately on the crown. The king, how- ever, purchased the title of those who were disposed to sell. One of them, Lord Carteret, surrendered his interest in the government, but retained his title to the soil. That title was respected till the revolution, when it was forfeited by the laws of war.
Further proofs of the extent to which this principle has been recognized, will be found in the history of the wars, negotiations and treaties which the different nations, claiming territory in America, have carried on and held with each other. .
Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognized in others, the exclusive right of the dis- coverer to appropriate the lands oceupied by the Indians. Have the American States rejected or adopted this principle?
By the treaty which concluded the war of our Revolution, Great Britain relin-
THOMAS) RIGHT TO SOIL DEPENDENT ON DISCOVERY 531
quished all claim, not only to the government, but to the “propriety and terri- torial rights of the United States,” whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these states. We had before taken possession of them, by declaring independence; but neither the declar- ation of independence, nor the treaty confirming it, could give us more than that which we before possessed, or to which Great Britain was before entitled. It has never been doubted, that either the United States, or the several states, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right was vested in that government which might constitutionally exercise it.
That this rule has been adopted also by the United States is asserted by the Supreme Court in the samé opinion:
The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. ‘They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.
The power now possessed by the Government of the United States to grant lands resided, while we were colonies, in the crown or its grantees. The validity of the titles given by either has never been questioned in our courts. It has been exer- eised uniformly over territory in possession of the Indians. ‘he existence of this power must negative the existence of any right which may conflict with, and con- trol it. An absolute title to lands can not exist, at the same time, in different per- sons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recog- nize the absolute title of the crown, subject only to the Indian right of occupancy, and recognized the absolute title of the crown to extinguish that right. This is incompatible with an absolnte and complete title in the Indians.
We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the terri- tory they possess, or to contract their limits. Conquest gives a title which the courts of the conqueror can not deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which ocenpanecy gaye to them, These claims have been maintained and estab- lished as far west as the river Mississippi, by the sword. , The title to a vast portion of the lands we now hold, originates in them. It is not for the courts of this country to question the validity of this title or, to sustain one which is incompatible with it.
Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.
The title by conquest is acquired and maintained by force. The conqueror pre- scribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually they are incorporated with the victorious nation and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable,
532 INDIAN LAND CESSIONS IN THE UNITED STATES _ [evH. ann. 18
humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimparied; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections, and united by force to strangers.
When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he ean not neglect them without injury to his fame and hazard to his power.
But the tribes of Indians inhabiting this country were fierce savages, whose occu- pation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness; to goy- ern them as a distinct people was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.
What was the inevitable consequence of this state of things? The Europeans
were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighborhood and exposing themselves and their families to the perpetual hazard of being massacred. ' Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensned. European policy, numbers and skill, prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighborhoud of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabit- ants, was parceled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies.
That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a peopie under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Everyrule which can be suggested will be found to be attended with great difficulty.
However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and can not be questioned. So, too, with respect to the con- comitant principle, that the Indian inhabitants are to be considered merely as occu- pants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be sup- ported by reason, and certainly can not be rejected by courts of justice. . :
It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right. The object of the crown was to settle the sea-coast of America; and when a portion of it was settled, without violating the rights of others, by persons professing their loyalty, and soliciting the royal sanction of an act, the consequences of which were ascertained to be beneficial, it would have been as unwise as ungracious to expel them from their habitations
THOMAS] RIGHT TO SOIL DEPENDENT ON DISCOVERY 533
because they had obtained the Indian title otherwise than through the agency of government. The very grant of a charter is an assertion of the title of the crown, and its words convey the same idea. The country granted is said to be ‘our island called Rhode Island;” and the charter contains an actual grant of the soil, as well as of the powers of government.
The decision in this case is of course conclusive in regard to the nature of the Indian title to lands as held by our Government. Never- theless, a brief reference to the history of the subject preceding the date of decision (1823) will be appropriate here before alluding to the policy adopted in regard to the extinguishment of this title.
As early as September 22, 1783, while yet operating under the Articles of Confederation, the following “ proclamation” was ordered by Con- gress.!
Whereas by the 9th of the Articles of Confederation, it is among other things declared, that ‘‘the United States in Congress assembled have the sole and exclusive right and power of regulating the trade, and managing all affairs with the Indians not members of any of the States, provided that the legislative right of any State, within its own limits, be not infringed or violated.” And whereasit is essential to the welfare of the United States, as well as necessary for the maintenance of har- mony and friendship with the Indians, not members of any of the States, that all cause of quarrel or complaint between them and the United States or any of them, should be removed and prevented; therefore, the United States in Congress assem- bled, have thought proper to issue their proclamation, and they do hereby prohibit and forbid all persons from making settlements on lands inhabited or claimed by Indians, without the limits or jurisdiction of any particular State, and from pur- chasing or receiving any gift or cession of such lands or claims without the express authority and direction of the United States in Congress assembled.
It is, moreover, declared that every such purchase or settlement, gift or cession, not having the authority aforesaid, is null and void, and that no right or title will accrue in consequence of any such purchase, gift, or settlement.
By the eighth section of the act of Congress of March 1, 1793, enti- tled ‘‘ An act to regulate trade and intercourse with the Indian tribes,” the same principle was enacted into law, as follows:
And be it further enacted, That no purchase or grant of lands, or of any title or claim thereto, from any Indians, or nation or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution. And it shall be a misdemeanor in any person, not employed under the authority of the United States in negotiating such treaty or convention, punishable by fine not exceeding one thousand dollars, and imprisonment not exceeding twelve months, directly or indirectly to treat with any such Indians, nation or tribe of Indians, for the title or purchase of any lands by them held or claimed: Provided, nevertheless, That it shall be lawful for the agent or agents of any State, who may be present at any treaty held with the Indians, under the authority of the United States, in the pres- ence, and with the approbation of, the Commissioner or Commissioners of the United States appointed to hold the same, to propose to, and adjust with, the Indians, the compensation to be made for their claims to lands within such State, which shall be extinguished by the treaty.2
10ld Journals, vol. 1v (1783), p. 275, as copied in ‘t Laws, etc., respecting the Public Lands,” Wash ington, Gales & Seaton, 1828; pp. 338-339. 2 Op. cit , pp. 414-415.
534 INDIAN LAND CESSIONS IN THE UNITED STATES _ [eru. ayy. 18
This is repeated in section 12 of the act of May 19, 1796, entitled “An
act to regulate trade and intercourse with the Indian Tribes, and to preserve peace on the frontier;” also in section 12 of the act of March 30,1802. By section 15 of the act of March 26, 1804, “erecting Louis- iana into -two Territories, and providing for the temporary government thereof,” it is ordered that— The President of the United States is hereby authorized to stipulate with any Indian tribes owning lands on the East side of the Mississippi, and residing thereon, for an exchange of lands the property of the United States, on the West side of the Mississippi, in case the said tribe shall remove and settle thereon; but, in such stipulation, the said tribes shall acknowledge themselves to be under the protection of the United States, and shall agree that they will not hold any treaty with any foreign Power, individual State, or with the individuals of any State or Power; and that they will not sell or dispose of the said lands, or any part thereof, to any sovereign Power, except the United States, nor to the subjects or citizens of any other sovereign Power, nor to the citizens of the United States. And in order to maintain peace and tranquillity with the Indian tribes who reside within the limits of Louisiana, as ceded by France to the United States, the act of Congress, passed on the thirtieth day of March, one thousand eight hundred and two, entitled ‘‘An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers,” is hereby extended to the Territories erected and established by this act; and the sum of fifteen thousand dollars, of any money in the Treasury, not otherwise appropriated by law, is hereby appropristed, to enable the President of the United States to effect the object expressed in this section.'!
As this law was not to take effect until October 1, 1804, it was pro- vided that until this date the act passed October 31, 1803, entitled “An act to enable the President of the United States to take possession of the territories ceded by France to the United States . . . and for the temporary government thereof.” was to remain in force. All rights of the Indians within the limits of Louisiana which existed under the French control remained, therefore, under United States authority until October, 1804.
To complete the chain we note the fact that, by article 6 of the treaty of April 30, 1803, by which France ceded Louisiana to the United States, the latter promised “to execute such treaties and arti- cles as may have been agreed between Spain and the tribes and nations of Indians, until, by mutual consent of the United States and the said tribes or nations, other suitable articles shall have been agreed upon.”
These acts and treaties indicate, and in fact form, steps in the policy of the United States in its dealings with the Indians in reference to their Jands, and will be noticed in this connection hereafter. The object at present in referring to them is only to show the theory of the Government in regard to the Indian title.
It is clear, therefore, that although the United States has always conceded to the Indians the usufruct or right of oceupaney to such lands as they were in possession of, yet they have always held the theory of the European powers, and claimed that the absolute right to the soil was in the Government.
1 Op. cit., p. 509.
THOMAS) RIGHT TO SOIL DEPENDENT ON DISCOVERY 535
However, as will be seen when allusion is made to the policy of the nations in their dealings with the Indians, there was some difference in regard to the extent of their right or title. This was limited by some of the governments to the territory occupied, while by others, as the United States, it was usual to allow it to extend to the territory claimed, where the boundaries between the different tribes were under- stood and agreed on. It would seem, in fact, that the United States proceeded on the theory that all the land was held by natives. A sin- gle instance occurs to the writer at present where land was taken pos- session of as waste or without an owner. This is mentioned by Mr Royce in his remarks under schedule number 432,
The right of occupancy in the Indians, until voluntarily relinquished or extinguished by justifiable conquest, being conceded, it became nec- essary on the part of the Government to adopt some policy to extinguish their right to such territory as was not necessary for their actual use.
As a natural corollary of this theory arose the question, With whom shall the Government treat? The Indians having no general govern- ment or regular political organization, but consisting of numerous independent tribes in a state of savagery, the usual policy of civilized nations in a case of conquest could not be adopted. As their claims were those of tribes or communities, and not individuals in severalty, it followed as’a matter of necessity that the only policy which the Govy- ernment could adopt was to recognize them as quasi and dependent, distinct political communities, or nations, or half sovereign states, and treat them as such.
It has been said that the method of regarding them as distinet peoples or nations and treating with them as such is a “legal fiction.” Nevertheless, if we study carefully all the circumstances which sur- round the case, and the pressing necessities of the Republic in its early days, we are likely to be convinced that it was not the part of wisdom then to hamper the struggles for national life with theoretic lines or legal technicalities, which stood in the way of practical progress. Humanity is an element which should attend every step of governmental as well as of individual progress, but political theories must be broad- ened, restricted, or varied in accordance with new and imperative necessities which arise.
It is doubtless true that the recognition of the Indian tribes as dis- tinet nationalities, with which the Government could enter into solemn treaties, was a legal fiction which should be superseded by a more correct policy when possible. But necessity often makes laws, and in this instance forced the Government to what was, in its early days, probably the best possible policy in this respect, consistent with humanity, which it could have adopted.
A doubt has also been expressed as to whether the United States or any European power could, with perfect honesty and integrity, purchase
18 ETH, pt 2—2
536 INDIAN LAND CESSIONS IN THE UNITED STATES _ [eTH. ann. 18
lands of the natives under their care and protection. Bozman,' who expresses this doubt, bases it on the following considerations:
First, it is not a clear proposition that savages can, for any consideration, enter into a contract obligatory upon them. They stand by the laws of nations, when trafficking with the civilized part of mankind, in the situation of infants, incapable of entering into contracts, especially for the sale of their country. Should this be denied, it may then be asserted that no monarch of a nation (that is, no sachem, chief, or headmen, or assemblage of sachems, etc.) has a power to transfer by sale the country, that is, the soil of the nation, over which they rule.
That the Indians of the United States have been and are still con- sidered wards of the Government must be conceded. It also must be admitted that, as a general rule of law, wards can not divest themselves of their title to land except through the decree of court or some prop- erly authorized power. But in the case of the Indians the Government is both guardian and court, and as there is no higher authority to which application can be made, its decision must be final, otherwise no transfer of title would be possible, however advantageous it might be to the wards.
Bozman’s theory seems to overlook the fact that Indians, except per- haps in a few isolated cases, never claimed individual or exclusive personal titles in fee to given and designated portions of the soil. What, therefore, is held in common may, it would seem, by the joint action of those interested, be transferred or alienated.
However, it is not our object at present to theorize as to what should or might have been done, but to state what was done in this respect, and thus to show on what policy the various territorial cessions and reservations mentioned in the present work are based.
The correct theory on this subject appears to be so clearly set forth by John Quiney Adams in his oration at the anniversary of the Sons of the Pilgrims, December 22, 1802, that his words are quoted, as follows:
There are moralists who have questioned the right of Europeans to intrude upon the possessions of the aborigines in any case and under any limitations whatsoever. But have they maturely considered the whole subject? The Indian right of posses- sion itself stands, with regard to the greatest part of the country, upon a ques- tionable foundation. Their cultivated fields, their constructed habitations, a space of ample sufficiency for their subsistence, and whatever they had annexed to thein- selves by personal labor, was undoubtedly by the laws of nature theirs. But what is the right of a huntsman to the forest of a thousand miles over which he has acci- dentally ranged in quest of prey? Shall the liberal bounties of Providence to the race of man be monopolized by one of ten thousand for whom they were created? Shall the exuberant bosom of the common mother, amply adequate to the nourish- ment of millions, be claimed exclusively by a few hundreds of her offspring? Shall the lordly savage not only disdain the virtues and enjoyments of civilization him- self, but shall he control the civilization of a world? Shall he forbid the wilderness to blossom like the rose? Shall he forbid the oaks of the forest to fall before the ax of industry and rise again transformed into the habitations of ease and elegance? Shall he doom an immense region of the globe to perpetual desolation, and to hear
1 History of Maryland, p. 569.
THOMAS] RIGHT TO SOIL DEPENDENT ON DISCOVERY 537
the howlings of the tiger and the wolf silence forever the voice of human gladness? Shall the fields and the valleys which a beneficent God has framed to teem with the life of innumerable multitudes be condemned to everlasting barrenness? Shall the mighty rivers, poured out by the hands of nature as channels of communication between numerous nations, roll their waters in sullen silence and eternal solitude to the deep? Have hundreds of commodious harbors, a thousand leagues of coast, and a boundless ocean been spread in the front of this land, and shall every purpose of utility to which they could apply be prohibited by the tenant of the woods? No, generous philanthropists! Heaven has not been thus inconsistent in the works of its hands. Heaven has not thus placed at irreconcilable strife its moral laws with its physical creation. !
In order to show the correctness of the views expressed by Adams in the above quotation, and the absurdity of admitting the Indians’ claim to the absolute right of the soil of the whole country, some com- parisons are here introduced. These are simple comparisons between the Indian population and the extent of territory claimed by them.
Perhaps the best estimate of the Indian population of the United States (exclusive of Alaska), at different periods up to 1876, are those given by Honorable John Eaton.? His summary is as follows:
1820. Report of Morse on Indian Affairs ..........-...-...-..---------..-.. 471,036 1825. Report of Secretary of War 129, 366
1829. Report of Secretary of War 312, 930 1834, Report of Secretary of War 312, 610 1836. Report of Superintendent of Indian Affairs....-......-..--2.-....... 253, 464 1837. Report of Superintendent of Indian Affairs ..-..........2------..-20- 302, 498 1850. Reportiofigh pha sch oorarmtterer sete =n)s01s2mis tnedcietsie = cis cece Soese 388, 229 1853, Report.of UnitediiStates:@ensus i850)... <..5<ce<62c<ccecccece ce scjedee 400, 764 lgoo: Report: of in dignuaine teem seen ayaa = aie c sone ano sck - oc cccouencaae 314, 622 1857.Report. of Dik SGnOOler atte emesis c= == <(sceces- eee de cn ccecee cece ssc 379, 264 1860.) Report of Mndiam@Metersesesseccrse se c=). -.sses-ce oc sese cece se aceces 254, 300 1865. Reportiof ind ram O hidemeerieeencet sis sc orccie cocasce ce ccue seicee lot sees 294, 574 1870. Report of United States Census.-.-..............- pee eg Raids 5 313, 712 ASTO. Report Ofs Licino pmeeeee ass meee sa ena canieinn one mce ae csciss aceSee 313, 371 iio. Reportof tndyansO ticemeteeates oe ia a- xan m~ = wasn eaciacccens seca ses - 305, 068 1876. Report Of Indiami@ Mitetweseane sae sf ose les os. S ene 2s0 2 ess scc dean coos 291, 882
Examining these estimates at the different dates, we see that the average, in round numbers, is 315,000. Now, assuming this to be a correct estimate, and allowing five persons to a family, this would give 63,000 as the whole number of Indian families in the United States. Assuming the area of the United States, exclusive of Alaska, to be 3,025,000 square niles, this would give to each Indian family a manor of 48 square miles, or 30,720 acres. Now, supposing, for further illustra- tion, that the families were distributed uniformly over the whole terri- tory, the state of Rhode Island, which now supports a population of 345,506 persons, or 69,101 families (allowing five persons to a family), would be apportioned among 26 Indian families; the stateof Delaware would be allotted to but 43, and the whole state of New York, which
‘ Report of the Commissioner of Indian A fiairs for 1867, p. 143. *Tbid., for 1877.
538 INDIAN LAND CESSIONS IN THE UNITED STATES _ [eTH. any. 18
now supports more than a million families, would be assigned to 1,025 lordly savages. ;
It is apparent, therefore, that the requirements of the human race and the march of civilization could not permit such an apportionment of the soil of the American continent as this, even were the estimates trebled. It is true that practically no such equal distribution of the lands as that mentioned would be possible. Moreover, it is also true that some portions are unsuitable for the ordinary purposes of life; but the supposition given will be understood as an illustration of the theory of the Indian claim, and is correct in principle. That a popula- tion whose territorial needs would be amply supplied by the area embraced in the single state of [linois should, on the score of being the first occupants of the country, be allowed the exclusive use of the whole territory of the United States is inconsistent with any true theory of natural rights. Moreover, it is not required by humanity, religion, nor any principle of human rights. This must be conceded. But what is the necessary consequence of such concession ?
There were few, if any, areas in the United States which the Indians did not claim. If this claim could not be admitted in its entirety as a just and valid one; if it could not be admitted as a just bar to any settlements by other peoples; if civilization could not consent to such a claim, where should the restriction begin? How should it be accomplished? Who should fix the metes and bounds and who decide the proper apportionment? This brings us back precisely to the point which the European settlers on the continent were forced to meet, and where the governments to which they pertained were forced to act, whether they did so in accordance with a settled theory and policy or not.
FOREIGN POLICY TOWARD THE INDIANS
In the preceding section attention is called to the principle main- tained by the United States and by other civilized governments in regard to the rights of the Indians to the soil. As theory and practice are not necessarily identical and are sometimes quite variant from each other, reference will now be made to the policy and methods adopted in putting into practical operation this theory. However, to cover the range of acquisitions from the Indians of land within the bounds of the United States, it will be necessary to refer not only to the policy of the Government since the adoption of its constitution, but also to that of the colonies and of the other powers from which territory has been obtained by the United States.
It will perhaps be best to begin with the policy of the powers from which territory has been obtained by the United States since the adop- tion of the constitution. By so doing the policy adopted by the col- onies can be connected with that of the United States without being interrupted by reference to that of other governments.
THOMAS] FOREIGN POLICY TOWARD THE INDIANS 539
THE SPANISH POLICY
Although the eruelty of the Spaniards in their treatment of the Indians during the conquest of Mexico and Central America is prover- bial, yet an examination of the laws of Spain and ordinances of the King show that these acts were not only not warranted thereby, but in direct conflict therewith. So early as 1529, in the commission consti- tuting Cortes captain-general of New Spain, he was directed to give his principal care to the conversion of the Indians; that he should see that no Indians be given to the Spaniards to serve them; that they paid such tribute to His Majesty as they might easily afford, and that there should be a good correspondence maintained between the Span- jards and the Indians and no wrong offered to the latter either in their goods, families, or persons. Bishop Don Sebastian Ramirez, who was acting governor under Cortes subsequent to his commission, earnestly endeavored, be it said to his honor, to put into practice these humane orders. We are informed by Antonio de Herrera! that he not only abrogated the enslavement of any Indians whatsoever, but also took eare that none of them should be made to carry burdens about the country, ‘looking upon it as a labor fit only for beasts.” He was no less exact in the execution of all the ordinances sent by the Council of Spain for the ease, improvement, and conversion of the natives. ‘ By that neans,” adds the old historian, ‘‘ the Country was much improy’d and all Things carried on with Equity, to the general Satisfaction of all good Men.”
The laws enacted for the government of the “‘ Kingdoms of the Indies” were still more pointed in the same direction, and fully recognized the rights of the Indians to their landed possessions. However, as will become apparent from an examination of these, no claim by the natives to unoccupied lands or uninhabited territory appears to have been rec- ognized. Such territory was designated “ waste lands,” and formed part of the royal domain. As evidence of this the following brief extracts from the Recopilacion de las Leyes de los Reynos de las Indias are presented :”
We decree and command, that the laws and good customs anciently in force in the Indies, for their good government and police, and the usages and customs observed and retained from the introduction of Christianity among them, which are not repugnant to our sacred religion, or to the laws contained in this book, and to those which have been framed anew, be observed and fulfilled; and it having become expedient to do so, we hereby approve and confirm them, reserving to ourselves the power of adding thereto whatever we shall think fit and will appear to us necessary for the service of God our Lord, and our own, and for the protection of, and Chris- tian police among, the natives of those Provinces, without prejudice to established usages among them, or to their good and wholesome customs and statutes.—Lib. I/, tit. 1, law 4, vol. I, p. 218.
It being our wish that the Indians be protected and well treated, and that they be
! Historia General, dec. 111, bk. 7, chap. 3 (Stevens’ translation). ?From Laws, U.S. Treaties, ete., Respecting Public Lands, vol. 11, 1836.
540 INDIAN LAND CESSIONS IN THE UNITED STATES _ [eTH. any. 18
not molested nor injured in their person or property; We command that in all cases, and on all oceasions, when it shall be proposed to institute an inquiry, whether any injury is to acerue to any person in consequence of any grant of land, whether for tillage, pasture, or other purposes, the Viceroys, Presidents, and Judges shall cause summonses to be directed to all persons whom it may really concern, and to the Attorneys of our Royal Audiences, wherever Indians may be interested, in order that all and every person may take such measures as may be expedient to protect his rights against all injuries which might result therefrom.—Lib. IJ, lit. 18, law 36, “vol. I, p. 412.
Whereas some grazing farms, owned by Spaniards for the use of their cattle, have been productive of injury to the Indians, by being located upon their lands, or very near their fields and settlements, whereby said cattle eat and destroy their produce and do them other damage: We command that the Judges who shall examine the lands, make it their duty to visit such farms, without previous request to do so, and ascertain whether any injury accrues therefrom to the Indians or their property; and, if so, that, after due notice to the parties interested, they forthwith, and by sum- mary or legal process, according as they may think most fit, remove them to some other place without damage or prejudice to any third person.—Lib, IJ, tit. 31, law 13, vol. I, p. 484.
Should the natives attempt to oppose the settlement [of a colony], they shall be given to understand that the intention in forming it, is to teach them to know God and His holy law, by which they are to be saved; to preserve friendship with them, anid teach them to live in a civilized state, and not to do them any harm or take from them their settlements. They shall be convinced of this by mild means, through the interference of religion and priests, aud of other persons appointed by the Governor, by means of interpreters, and by endeavoring by all possible good means, that the settlement may be made in peace and with their consent; and if, notwithstanding, they do withhold their consent, the settlers, after having notified them pursuant to Law 9, Tit. 4, Lib. 3, shall proceed to make their settlement with- out taking any thing that may belong to the Indians, and without doing them any greater damage than shall be necessary for the protection of the settlers and to remove obstacles to the settlement.—Lib. IV, tit. 7, law 23, vol. Il, p. 24.
We command that the farms and lands which may be granted to Spaniards, be so granted without prejudice to the Indians; and that such as may have been granted to their prejudice and injury be restored to whoever they of right shall belong.— Lib. IV, tit. 12, law 9, vol. Il, p. 41.
In order to avoid the inconveniences and damages resulting from the sale or gift to Spaniards of caballerias or peonias, and other tracts of land, to the prejudice of the Indians, upon the suspicious testimony of witnesses, we order and command, that all sales or gifts shall be made before the Attorneys of our Royal Audiencias, to be sum- moned for that purpose, who shall be bound to examine, with due care and diligence, the character and depositions of witnesses; and the Presidents and Audiences, where they shall administer the government, shall give or grant such lands by the advice of the Board of Treasury, where it shall appear that they belong to us, at auction, to the highest bidder, as other estates of ours, and always with an eye to the benefit of the Indians. And where the grant or sale shall be made by the Viceroys, it is our will that none of the officers above mentioned shall interfere. Upon the letters which shall be granted to the parties interested, they shall sue out confirmations within the usual time prescribed in cases of grants of Indians [encomiendas de Indios|.—Lib. IV, tit. 12, law 16, vol, I, p. 43.
In order more effectually to favor the Indians, and to prevent their receiving any injury, we command that no composition shall be admitted of lands which Spaniards shall have acquired from Indians, in violation of our royal letters aud ordinances, and which shall be held upon illegal titles: if being our will that the Attorneys- Protectors should proceed according to right and justice, as required by letters and
THOMAS] SPANISH POLICY TOWARD THE INDIANS 5AL
ordinances, in procuring such illegal contracts to be annulled. And we command the Viceroys, Presidents, and Audiences to grant them their assistance for its entire execution.— Lib. IV, tit. 12, law 17, vol. II, p. 43.
We command that the sale, grant, and composition of lands be executed with such attention, that the Indians shall be left in possession of the full amount of lands belonging to them, either singly or in communities, together with their rivers and waters; and the lands which they shall have drained or otherwise improved, whereby they may, by their own industry, have rendered them fertile, are reserved in the first place, and ean in no ease be sold or aliened. And the Judges who shall have been sent thither, shall specify what Indians they may have found on the land, and what lands they shall have left in possession of each of the elders of tribes, caciques, governors, or communities.—Lib, IV. tit. 12, law 17 [18], vol. I, p. 44.
No one shall be admitted to make composition of lands who shall not have been in possession thereof for the term of ten years, although he should state that he is in possession at the time; for such circumstance by itself is not sufficient; and communities of Indians shall be admitted to make such compositions in preference to other private individuals, giving them all facilities for that purpose.—Lib. IV, lit. 12, law 19, vol. IT, p. 44. :
Whereas the Indians would sooner and more willingly be reduced into settle- ments, if they were allowed to retain the lands and improvements which they may possess in the districts from which they shall remove; we command that no altera- tion be made therein, and that the same be left to them to be owned as before, in order that they may continue to cultivate them and to dispose of their produce,— Lib. VI, tit. 3, law 9, vol. IT, p. 209.
According to the royal ordinance given at San Lorenzo el Real, October 15, 1754, it was decreed that, “The Judges and Officers, to whom jurisdiction for the sale and composition of the royal lands {realengos| may be sub-delegated, shall proceed with mildness, gentie- ness, and moderation, with verbal and not judicial proceedings, in the ease of those lands which the Indians shall have possessed, and of others when required, especially for their labor, tillage, and tending of - cattle.”
It appears, however, that the Spanish government never accepted the idea that the Indians had a possessory right to the whole territory, but only to so much as they actually occupied, or that was necessary for their use. This policy toward the natives seems to be indicated by the following extract:
Whereas we have fully inherited the dominion of the Indies; and whereas the waste lands and soil which were not granted by the Kings, our predecessors, or by ourselves, in our name, belong to our patrimony and royal crown, it is expedient that all the land which is held without just and true titles be restored, as belonging to us, in order that we may retain, before all things all the lands which may appear to us and to our Viceroys, Audiences, and Governors, to be necessary for public squares, liberties, [exidos,| reservations, [ propios,] pastures, and commons, to be granted to the villages and councils already settled, with due regard as well to their present condition as to their future state,and to the increase they may receive, and after distributing among the Indians whatever they may justly want to culti- vate, sow, and raise cattle, confirming to them what they now hold, and granting what they may want besides—all the remaining land may be reserved to us, clear of any incumbrance, for the purpose of being given as rewards, or disposed of according to our pleasuro.—Lib, IV, tit. 12, law 14, vol. I, p. 42.
542 INDIAN LAND CESSIONS IN THE UNITED STATES _ [e7TH. ayy. 18
The same idea appears to be embraced in law 18, lib. 4, tit. 12, given above; also in the following sections in the ‘“ Regulations of intendant Morales regarding grants of land:”
24. As it is impossible, considering all the local circumstances of these provinces, that all the vacant lands belonging to the domain should be sold at auction, as it is ordained by the law 15th, title 12th, book 4th of the collection of the laws of these Kingdoms, the sale shall be made according as it shall be demanded, with the inter- vention of the King’s Attorney for the Board of ’inances, for the price they shall be taxed, to those who wish to purchase; understanding, if the purchasers have not ready money to pay, it shall be lawful for them to purchase the said lands at redeem- able quit-rent, during which they shall pay the five per cent. yearly.
31. Indians who possess lands within the limits of the Government shall not, in any manner, be disturbed; on the contrary, they shall be protected,and supported; and to this, the Commandants, Syndics, and Surveyors, ought to pay the greatest attention, to conduct themselves in consequence.
32. The granting or sale of any lands shall not be proceeded in without formal information haying been previously received that they are vacant; and, to avoid injurious mistakes, we premise that, beside the signature of the Commandant or Syndie of the District, this information ought to be joined by that of the Surveyor, and of two of the neighbors, well understanding. If, notwithstanding this necessary precaution, it shall be found that the land has another owner besides the claimant, and that there is sufficient reason to restore it to him, the Commandant, or Syndie, Surveyor, and the neighbors, who have signed the information, shall indemnify him for the losses he has suffered.!
In 1776 one Maurice Conway, who had made a purchase on New Orleans island from the Houma Indians, which purchase had been approved, asked of the Spanish authorities an additional grant by which he might obtain some timber land adjoining thereto. This was granted by Onzaga with the following restrictions: “Provided it be vacant, and that no injury is thereby done to any of the adjoining inhabitants; to which effect he shall establish his boundaries and lim- its; and of the whole proceedings he shall make a process verbal, of which he shall make a return to us, signed by himself and the parties, in order to issue the complete title, in due form, to the claimant.”
In carrying out the orders to mark off this grant the Houma chief was taken upon the ground in order that he might see that the lands of his tribe were not encroached on.
It does not appear that the Spanish government at any time adopted the policy of purchasing the Indian title, though clearly and distinetly recognizing it, to the lands they occupied. It, however, seems to have been a rule that the Indians should be compensated for their village sites and lands in actual use which were taken from them. This, how- ever, was done usually by granting them other lands. Grantees were usually the purchasers of the Indian title where it was deemed neces- sary that this should be extinguished.
The foregoing laws and ordinances applying generally to the Spanish possessions known as “ New Spain” were, of course, equally applica- ble to Louisiana and Florida and other portions of territory acquired
1 Laws Relating to Public Lands, 1828, pp. 984-985.
THOMAS] SPANISH POLICY TOWARD THE INDIANS 543
by the United States, directly or, indirectly, from Spain. However, as West Florida was a dependency of Louisiana, which most of the time had its own government, and East Florida was attached to the intendeney of Cuba, there were some differences in the local adminis- tration of the laws and in the customs adopted in dealing with the Indians.
Some two or three commissions were authorized by Congress to examine into and decide in regard to land claims in Florida derived from Spanish grants. Little or nothing can be derived from their reports in regard to the method of extinguishing the Indians’ claim. Two members of the first commission were so clearly personally inter- ested in several of these grants that the third member (Alexander Hamilton) felt himself compelled to resign and to protest against the conclusions reached. The only fact brought out by them bearing on the question before us is that grants were, during the closing years of Spanish rule, made in a most reckless manner and apparently with little or no attention to the rights of the Indians, the designation “vacant lands” being considered a sufficient ground for making a grant. The official surveyor in many cases did not even run around the boundary of a grant, nor pretend to ascertain whether it was on Indian territory. This, however, was not in accordance with the law and royal policy, as appears from the statement of Juan José de Estrada, governor pro tempore of Florida (July 29, 1811).!. Writing to the Marques de Someruelos, in regard to a request of one Don Cristoval Gios for a large grant along the southwest coast of Florida for plant- ing a colony, he remarks:
But the greatest objection to the project of Don Cristoval Gios [who proposed planting a colony] remaines to be examined, and it is, that the lands he asks the cession of are not public; they are the property of the Indians, who look with much interest to any usurpation of them, however small it may be. The preserva- tion of their lands is one of the bases of our friendship with them; and in all the harangues pronounced .by the Governors of this Province, they have been always promised the same treatment and privileges they had under the British Government. That Government ruled the land as a sovereign, but left the Indians the property of the soil, except those places which they had acquired from the aborigines by pur- chase, or by a solemn treaty made with the Chiefs. The Anglo-Americans follow - this same rule with the Indians who are under their dominion, and it is certain that the same rule has been religiously observed in the two Floridas, no white man being permitted to purchase land from the Indians without the intervention of the Govern-
ment to prevent frauds, aud prohibiting strictly that any person should establish himself in the territory known as theirs.
He further adds:
In virtue of this, I am of opiaion that, unless Don Cristoval Gios obliges himself to purchase from the Indians the lands he pretends to, and that said purchase is made with the knowledge and in the presence of this Government, and interpreters appointed by it, his project is rather directed to compromise the tranquility of this province, and, therefore, that perpetual silence on the subject should be imposed upon him.
' Laws ete., Relating to Public Lands, vol. 11 (1836), appendix, pp. 233-234.
544 INDIAN LAND CESSIONS IN THE UNITED STATES _ [£TH.ANN. 18
It would appear from this that when the law was complied with, those desiring lands which were in possession of the Indians were required to purchase them from the tribe. This was to be done in the presence of the surveyor or some one authorized to act for the governor of the province, and it was required that there should be an interpreter approved by the governor. It was also requisite that the deed of purchase should be approved. Whether official permission to make the purchase was necessary does not appear. That the governor, or one exercising authority in the name of the King, had the power to refuse approval of such purchase is certain, although this seems to have been doubted by some of the commissioners appointed by the United States to examine into the Spanish claims.
The custom in Louisiana was substantially that described by Estrada in the above-quoted letter.
According to the report of the commissioners on the ‘Opelousas claims,” the Spanish functionaries seem to have made a distinetion between Indians who had partaken of the rite of baptism and other Indians. The former appear to have been cousidered capable of hold- ing and enjoying lands in as full and complete a manner as any other subjects of the Crownof Spain. Sales by these Indians were generally for small tracts, such as an Indian and his family might be supposed capable of cultivating, and being passed before the proper Spanish officer and filed for record, were considered valid by the usages of the Spanish government without ratification being necessary. But pur- chases from other Indians, as those from a tribe or chief, were not complete until they had been ratified by the governor of the province, the Indian sale transferring the Indian title and the ratification by the governor being a relinquishment of the right of the Crown.
The testimony of Mr Charles L. Trudeau, many years surveyor- general of the province of Louisiana under the Spanish government, in regard to the custom in this respect, which appears to have been relied on by the commissioners, is as follows:
The deponent knows of no ordinances or regulations under any Governor of Lou- isiana, except O'Reilly, by which the Indians, inhabiting lands in the province, were limited in their possessions to one league square about their villages, but this regu- lation has not been adhered to by any of his successors. The deponent knows that the custom was, that when a tribe of Indians settled a village by the consent of the Government, that the chief fixed the boundaries, and where there were one or more neighboring villages, the respective chiefs of those villages agreed upon and fixed the boundaries between themselves, and when any tribe sold out its village, the com- mandant uniformly made the conveyance according to the limits pointed out by the chief. The lands claimed by the Indians around their villages, were always considered as their own, and they were always protected in the unmolested enjoyment of: it by the Government against all the world, and has always passed from one generation to another so long as it was possessed by them as their own property. The Indians always sell their land with the consent of the Government, and if, after selling their village and the lands around it, they should, by the permission of the Government establish themselves elsewhere, they might again sell, having first obtained the per- mission of the Government, and so on, as often as such permission was obtained, and
THOMAS] FRENCH POLICY TOWARD THE INDIANS 545
no instance is known where such permission has ever been refused or withheld. These sales were passed before the Commandant of the District, and were always good and valid, without any order from the Commandant.!
It appears that Governor O’Reilly ordained that no grant for land in Opelousas, Attacapas, or Natchitoches could exceed one league square. It seems that this ordinance was to have a retroactive effect. Hence, purchases which had been made from Indians were reduced to this amount, but the surplusage, instead ot reverting to the Indians, became a part of the royal domain.
Finally, we quote the following from the commissioners’ report, as bearing on the point now under discussion:
If it should be asked, what evidence exists of the law of prescription operating to the extinction of the Indian title to lands in Lonisiana, it might be replied, that the evidence is to be found in the various acts of the Spanish Government, in relation to the Indians, evincing that the Government recog ized no title in them, independently of that derived from the crown, a mere right of occupancy at the will of the Govern- ment; else why was the sanction of the Government necessary to all sales passed by Indians, which may be clearly established by a recurrence to written documents, and the testimony of Messrs. Trudeau, De Blanc, and Laypard? and why was it not neces- sary to have such sanction of the sales made by other subjects of the Spanish Goy- ernment? The force and effect of prescription, in abolishing the Indian title to lands in Louisiana, is further established by the Indians permitting themselves to be removed from place to place by Governmental authority. By their condescending, in some cases, to ask permission of the Government to sell their lands, and, when that permission was not solicited, assenting to the insertion of a clause in the deeds of sale, expressly admitting that their sales could be of no validity without the ratifi- cation of the Government.*
THE FRENCH POLICY
A somewhat thorough examination of the documents and histories relating to French dominion in Canada and Louisiana fails to reveal any settled or regularly defined policy in regard to the extinguishment of the Indian title to land. Nevertheless, it is fair to assume that there was some policy in their proceedings in this respect, but it does not appear to have been set forth by legal enactments or clearly made known by ordinances. It seems, in truth, to have been a question kept in the background in their dealings with Indians, and brought to the front only in their contests with other powers in regard to territory. It would seem, although not clearly announced as a theory or policy, that it was assumed, when a nation or tribe agreed to come under French dominion, that this agreement carried with it the title to their lands.
In the letters patent given by Louis XV to the ‘“* Western Company” in August 1717, the following rights and privileges are granted :*
Sec. V. With a view to give the said Western Company the means of forming a
firm establishment, and enable her to execute all the speculations she may under- take, we have given, granted, and conceded, do give, grant, and concede to her, by
' Laws, U.S. Treaties, etc., respecting Public Lands, vol. 11 (1836), app., p. 222*. 2 Ibid., p. 224*. 8B. F, French, Historical Collections of Louisiana, pt. 3, 1851, pp. 50, 51.
546 INDIAN LAND CESSIONS IN THE UNITED STATES _ [erTH. An. 18
these present letters and forever, all the lands, coasts, ports, havens, and islands which compose our province of Louisiana, in the same way and extent as we have granted them to M. Crozat by our letters patent of 14th September 1712, to enjoy the same in full property, seigniory, and jurisdiction, keeping to ourselves no other rights or duties than the fealty and liege homage the said company shall be bound to pay us and to the kings our successors at every new reign, with a golden crown of the weight of thirty marks.
Src. VI. The said company shall be free, in the said granted lands, to negotiate and make alliance in our name with all the nations of the land, except those which are dependent on the other powers of Europe; she may agree with them on such conditions as she may think fit, to settle among them, and trade freely with them, and in case they insult her she may declare war against them, attack them or defend herself by means of arms, and negotiate with them for peace or for a truce.
By section 8 authority is given to the company “to sell and give away the lands granted to her for whatever quit or ground rent she may think fit, and even to grant them in freehold, without jurisdiction or seigniory.”
In section 53 it is declared:
Whereas in the settlement of the lands granted to the said company by these present letters we have chiefly in view the glory of God by procuring the salvation of the Indian savage and negro inhabitants whom we wish to be instructed in the true religion, the said company shall be bound to build churches at her expense in the places of her settlements, as likewise to maintain there as many approved clergymen as may be necessary.
Substantially the same privileges, powers, and requirements were provided for in the grant made ninety years before (April, 1627), through Cardinal Richelieu’s influence, to the Company of One Hun- dred Associates, while France was struggling, through the leadership of Champlain, to obtain a permanent settlement on the St Lawrence.!
Although these are the strongest passages having any bearing on the point indicated which have been found in the early grants, it must be admitted that reference to the Indian title is only to be inferred. The policy both in Louisiana and Canada seems to have been to take
’ possession, at first, of those points at which they desired to make settle- ments by peaceable measures if possible, though without any pretense of purchase, thus obtaining a foothold. Hither preceding or following such settlement, a treaty was made with the tribe, obtaining their con- sent to come under the dominion of the King of France and acknowl- edging him as the only rightful ruler over themselves and their territory.
As an illustration of this statement, attention is called to the follow- ing paragraph: ?
What is more authentic in this matter is the entry into possession of all those Countries made by M'. Talon, Intendant of New France, who in 1671, sent Sieur de
St. Lusson, his Subdelegate, into the country of the 8tauas, who invited the Depu- ties of all the tribes within a circumference of more than a hundred leagues to meet
1J.G, Shea, Charlevoix's Hist. New France, vol. 1, p. 39. 2Denonville, Memoir on the French Limits in North America, New York Colonial Documents, vol. 1X, p. 383,
THOMAS] FRENCH POLICY TOWARD THE INDIANS HAT
at St. Mary of the Sault. On the 4th of June, of the same year, fourteen tribes by their ambassadors repaired thither, and in their presence and that of a number of Frenchmen, Sieur de St. Lusson erected there a post to which he affixed the King’s arms, and declared to all those people that he had conyoked them in order to receive them into the King’s protection, and in his name to take possession of all their lands, so that henceforth ours and theirs should be but one; which all those tribes very readily accepted. ‘The commission of said Subdelegate contained these very words, vizt That he was sent to take possession of the countries lying between the East and West, from Montreal to the South Sea, as much and as far as was in his power. This entry into possession was made with all those formalities, as is to be seen in the Relation of 1671, and more expressly in the record of the entry into possession, drawn up by the said Subdelegate.
Although this is used by Denonville in this place as an evidence of the title of France as against that of England, yet it shows the French custom of taking possession of new countries. Although not differing materially from the method adopted in similar cases by other govern- ments, yet it would seem from their dealings with the Indians that the French considered this ceremony, where the Indians were persuaded to join in it, as absolutely passing to the Crown their possessory right.
The commission to Marquis de Tracy (November 19, 1663), bestowing on him the government of Canada, contains the following passage,! which indicates reliance on the power of arms rather than in peaceful measures:
These and other considerations Us moving, We have constituted, ordained and established, and by these Presents signed by our hands, do constitute, ordain and establish the said Sieur de Prouville Tracy Our Lieutenant General in the entire extent of territory under Our obedience situate in South and North America, the continent and islands, rivers, ports, harbors and coasts discovered and to be discoy- ered by Our subjects, for, and in the absence of, said Count D’Estrades, Viceroy, to have command over all the Governors, Lieutenant Generals by Us established, in all the said Islands, Continent of Canada, Acadie, Newfoundland, the Antilles ete. like- wise, over all the Officers and Sovereign Councils established in all the said Islands and over the French Vessels which will sail to the said Country, whether of Warto Us belonging, or of Merchants, to tender a new oath of fidelity as well to the Governors and Sovereign Councils as to the three orders of the said Islands; enjoining said Governors, Officers and Sovereign Councils and others to recognize the said Sieur de Prouyille Tracy and to obey him in all that he shall order them; to assemble the commonalty when necessary; cause them to take up arms; to take cognizance of, settle and arrange all differences which have arisen or may arise in the said Country, either between Seigniors and their Superiors, or between private inhabit- ants; to besiege and capture places and castles according to the necessity of the case; to cause pieces of artillery to be dispatched and discharged against them; to establish garrisons where the importance of the place shall demand them; to con- clude peace or truces according to circumstances either with other Nations of Europe established in said Country, or with the barbarians; to invade either the continent or the Islands for the purpose of seizing New Countries or establishing New Colo- nies, and for this purpose to give battle and make use of other means he shall deem proper for such undertaking; to command the people of said Country as well as all our other Subjects, Eeclesiastics, Nobles, Military and others of what condition soever there residing; to cause our boundaries and our name to be extended as far as he can, with full power to establish our authority there, to subdue, subject and
1New York Colonial Documents, vol. 1X, p. 18.
548 INDIAN LAND CESSIONS IN THE UNITED STATES [ETH ayy. 18
exact obedience from all the people of said Countries, inviting them by all the most lenient means possible to the knowledge of God, and the light of the Faith and of the Catholic Apostolic and Roman Religiom, and to establish its exercise to the exclusion of all others; to defend the said Countries with all his power; to main- tain and preserve the said people in peace, repose and tranquility, and to command both on sea and land; to order and cause to be executed all that he, or those he will appoint, shall judge fit and proper to be done, to extend and preserve said places under Our authority and obedience.
It will be seen from this that the King’s reliance in accomplishing the end he had in view was on force rather than on fair dealing with the natives. Nowhere in this commission or in any of the grants is there any direct recognition of the Indians’ possessory title, or an expressed desire that they be secured in possession of the lands they occupy, or that are necessary for their use. It is well known to all who are familiar with the history of French dominion in Louisiana and Canada, that resort was often made to the policy of secretly fomenting quarrels between Indian tribes, and thus, by wars between themselves, so weaken them as to render it less difficult to bring them under control.
That no idea of purchasing or pretending to purchase the possessory right of the natives had been entertained by the French up to 1686, is evident from a passage in the letter of M. de Denonville to M. de Seignelay, May 8, 1686,' where he states: ‘‘The mode observed by the English with the Iroquois, when desirous to form an establishment in their neighborhood, has been, to make them presents for the purchase of the fee and property of the land they would occupy. What I con- sider most certain is, that whether we do so, or have war or peace with them, they will not suffer, except most unwillingly, the construction of a fort at Niagara.” That the war policy was the course adopted is a matter of history.
‘How, then, are we to account for the fact that the relations of the French with the Indians under their control were, as a general rule, more intimate and satisfactory to both parties than those of other nations? Parkman has remarked that ‘‘The power of the priest estab- lished, that of the temporal ruler was secure. . . . Spanish civilization crushed the Indian; English civilization scorned and neglected him; French civilization embraced and cherished him.” Although this can not be accepted as strictly correct in every respect, yet it is true that intimate, friendly relations existed between the French and their Indian subjects, which did not exist between the Spanish or English and the native population. However, this can not be attributed to the legal enactments or defined policy of the French, but rather to their practi- cal methods,
Instead of holding the natives at arm’s length and treating them only as distinet and inferior people and quasi independent nations, the French policy was to make them one with their own people, at least in Canada. This is expressly declared in the following extracts:
1New York Colonial Documents, vol. 1x, p. 289.
THOMAS) THE FRENCH AND THE ENGLISH POLICY 549
Colbert, writing to Talon, April 6, 1666, says:
In order to strengthen the Colony in the manner you propose, by bringing the isolated settlements into parishes, it appears to me, without waiting to depend on the new colonists who may be sent from France, nothing would contribute more to it than to endeavor to civilize the Algonquins, the Hurons and other Indians who have embraced Christianity, and to induce them to come and settle in common with the French, to live with them and raise their children according to our manners and customs.!
In his reply, some seven months later, M. Talon informs Colbert that he has endeavored to put his suggestions into practical operation under police regulations.
In another letter, dated April 6, 1667, Colbert writes to Talon? as follows:
Recommendation to mould the Indians, settled near us, after our manners and language.
I confess that Iagreed with you that very little regard has been paid, up to the present time, in New France, to the police and civilization of the Algonquins and Hurons (who were a long time ago subjected to the King’s domination,) through our neglect to detach them from their savage customs and to oblige them to adopt ours, especially to become acquainted with our language. On the contrary, to carry on some traffic with them, our French have been necessitated to attract those people, especially such as have embraced Christianity, to the vicinity of our settlements, if possible to mingle there with them, in order that through course of time, having only but one law and one master, they might like wise constitute only one people and one race,
That this was the policy favored by the King is expressly stated by Du Chesneau in his letter to M. de Seignelay, November 10, 1679. “T communicated,” he says, ‘‘to the Religious communities, both male and female, and even to private persons, the King’s and your intentions regarding the Frenchification of the Indians, They all promised me to use their best efforts to execute them, and I hope to let you have some news thereof next year. I shall begin by setting the example, and will take some young Indians to have them instructed.”
In another letter to the same person, dated November 13, 1681, he says: ‘“‘Amidst all the plans presented to me to attract the Indians among us and to aceustom them to our manners, that from which most success may be anticipated, without fearing the inconveniences common to all the others, is to establish Villages of those people in our midst.’’*
That the same policy was in vogue as late as 1704 is shown by the fact that at this time the Abnaki were taken under French protection and placed, as the records say, ‘‘In the center of the colony.”
THE ENGLISH POLICY
In attempting to determine from history and the records the British policy in dealing with the Indians in regard to their possessory rights,
!'New York Solonial Documents, vol. 1x, p. 43. 3[bid., p. 136. 2Tbid., p. 59. 4Ibid., p. 150.
550 INDIAN LAND CESSIONS IN THE UNITED STATES _ [evTH. ayn. 18
the investigator is somewhat surprised to find (except so far as. they relate to the Dominion of Canada and near the close of the govern- ment rule over the colonies) the data are not only meager but mostly of a negative character. It must be understood, however, that this statement refers to the policy of the English government as distinct from the methods and policy of the different colonies, which will later be noticed.
The result of this investigation, so far as it relates to the possessions formerly held by Great Britain within the present limits of the United States, would seem to justify Parkman’s statement that “ English civilization scorned and neglected the Indian,” at least so far as if relates to his possessory right. It is a significant fact that the Indian was entirely overlooked and ignored in most, if not all, of the original grants of territory to companies and colonists. Most of these grants and charters are as completely void of allusion to the native population as though the grantors believed the lands to be absolutely waste and uninhabited.
For example, the letters patent of James I to Sir Thomas Gage and others for “ two several colonies,” dated April 10, 1606, although grant- ing a\way two vast areas of territory greater than England, inhabited by thousands of Indians, a fact of which the King had knowledge both officially and unofficially, do not contain therein the slightest allusion to them.
Was this a mere oversight? More than a hundred years had elapsed since the Cabots had visited the coast; Raleigh’s attempted coloniza- tion twenty years before was well known, and the history of the dis- covery and conquest of Mexico had been proclaimed to all the civilized world. Still the omission might be considered a mere oversight but for the fact that his second charter (May 23, 1609), to “‘The Treasurer and Company of Adventurers and Planters of the City of London for the Colony of Virginia,” and that of March 12, 1611-12, are equally silent on this important subject. It may be said, and no doubt truly, that the Crown merely granted away its title in the lands, its public domain, leaving the grantees to deal with the inhabitants as they might find most advantageous. Nevertheless this view will not afford an adequate excuse for the total disregard of the native occupants. The grants were to subjects, and the rights of sovereignty were retained.
The so-ealled “Great Patent of New England,” granted “absolutely” to the “said council called the council established at Plymouth, ete.,” the “aforesaid part of America, lying and being in breadth from forty degrees of northerly latitude from the equinoctial line, to forty-eight degrees of said northerly latitude inclusively, and in length of and within all the breadth aforesaid throughout the main land from sea to sea, together also with all the firm land, soils, grounds, havens, ports, rivers, waters, fishings, mines, and minerals,” yet there is not the
THOMAS] ENGLISH POLICY TOWARD THE INDIANS 551
slightest intimation that any portion of this territory was occupied by natives. There is, however, a proviso that the grant is not to include any lands “actually possessed or inhabited by any other Christian prince or state,” but the Indians are wholly ignored.
That the Indians were not wholly forgotten when the charter of Charles I, granting Maryland to Lord Baltimore, was penned, is evi- dent from some two or three statements therein. But none of these, nor anything contained in the charter, has any reference to the rights of these natives, or show any solicitude for their welfare or proper treat- ment. The first of these is a mere recognition of the fact that the territory is partly occupied by them: “A certain region, hereinafter described, in a country hitherto uncultivated, in the parts of America, and partly occupied by savages having no knowledge of the Divine Being.” The next is that mentioning as the payment required “ two Indian arrows of those parts to be delivered at the said castle of Windsor, every year on Tuesday in Haster week.” The third is a mere mention of “savages” as among the enemies the colonists may have to encounter. The fourth and last allusion to the natives is in the twelfth section, which authorizes Lord Baltimore to collect troops and wage war on the “barbarians” and other enemies who may make incursion into the settlements, and ‘to pursue them even beyond the limits of their province,” and “if God shall grant it, to vanquish and captivate them; and the captives to put to death, or according to their discretion, to save.” The only allusion to the natives in William Penn’s charter is the same as the latter in substance and almost the same in words.
Other charters might be cited to the same effect, but those mentioned will suffice to show that as a rule the English sovereigns wholly ignored the Indians’ rights in granting charters for lands in North America; that they gave no expression therein of a solicitude for the civilization or welfare of the natives. Although the problem of dealing with these native occupants was thus shifted on the grantees and colonists, yet there were occasions where the government was forced to meet the question and take some action. Actual contact with the difficulty, of course, made it necessary to develop some policy or adopt some rule of action. This led to the recognition of the Indians’ right of occupancy and the obligation on the government to extinguish this right by pur- chase or other proper means consistent with national honor.
Soon after Charles II ascended the throne he sent (1664) commis- sioners to America to examine into the condition of the colonies and to determine all complaints and appeals which might be brought before them. Their purpose was thwarted largely by the opposition of Massa- chusetts, and, although deciding on some claims based on purchases from Indians, no policy in this respect was developed.
As treaties, etc, concerning lands, which may be considered as made directly with the English government and not with the colonies, the following may be mentioned as the most important.
18 ETH, PT 2 3
552 INDIAN LAND CESSIONS IN THE UNITED STATES _ [ETu. ann. 18
A “Deed from the Five Nations to the King, of their Beaver Hunt- ing Ground,” made at Albany, New York, July 19,1701. This, which is somewhat peculiar, is as follows:!
To all Christian & Indian people in this parte of the world and in Europe over the great salt waters, to whom the presents shall come—Wee the Sachims Chief men, Capt" and representatives of the Five nations or Cantons of Indians called the Maquase Oneydes Onnandages and Sinnekes living in the Government of New Yorke in America, to the north west of Albany on this side the Lake Cadarachqui sendeth greeting—Bee it known unto you that our ancestors to our certain knowl- edge have had, time out of mind a fierce and bloody warr with seayen nations of Indians called the Aragaritkas ? whose Chief c6mand was called successively Choha- hise—The land is scituate lyeing and being northwest and by west from Albany begin- ning on the south west® side of Cadarachqni lake and includes all that waste Tract of Land lyeing between the great lake off Ottowawa‘and the lake called by the natives Sahiquage and by the Christians the lake of Swege® and runns till it butts upon the Twichtwichs and is bounded on the right hand by a place called Quadoge® conteigning in length about eight hundred miles and in bredth four hundred miles including the country where the bevers the deers, Elks and such beasts keep and the place called Tieugsachrondio, alias Fort de Tret or Wawyachtenok and so runs round the lake of Swege till you come to place called Oniadarondaquat which is about twenty miles from the Sinnekes Castles which said seaven nations our prede- cessors did four score years agoe totally conquer and subdue and drove them out of that country and had peaceable and quiet possession of the same to hunt beavers (which was the motive cansed us to war for the same) for three score years it being the only chief place for hunting in this parte of the world that ever wee heard of and after that wee had been sixty years sole masters and owners of the said land enjoying peaceable hunting without any internegation, a remnant of one of the seayen nations called Tionondade whom wee had expelled and drove away came and settled there twenty years agoe disturbed our beaver hunting against which nation wee have warred ever since and would have subdued them long ere now had not they been assisted and succoured by the French of Canada, and whereas the Governour of Canada aforesaid hath lately sent a considerable force toa place called Tjeughsagh- ronde the principall passe that commands said land to build a Forte there without our leave and consent, by which means they will possess themselves of that excellent country where there is not only a very good soile but great plenty of all maner of wild beasts in such quantities that there is no maner of trouble in killing of them and also will be sole masters of the Boar? hunting whereby wee shall be deprived of our livelyhood and subsistance and brought to perpetual bondage and slavery, and wee having subjected ourselves and lands on this side of Cadarachqui lake wholy to the Crown of England wee the said Sachims chief men Capt"s and representa- tives of the Five nations after mature deliberation out of a deep sence of the many Royall favours extended to us by the present great Monarch of England King Will- iam the third, and in consideration also that wee have lived peaceably and quietly with the people of albany our fellow subjects above eighty years when wee first made a firm league and covenant chain with these Christians that first came to set- tle Albany on this river which covenant chain hath been yearly renewed and kept bright and clear by all the Governours successively and many neighbouring Govern-
1New York Colonial Documents, vol. Iv, p. 908
2Hurons.
3Northwest. See next page, line 12.
4Lake Huron.
5Lake Erie.
6 At the headof Lake Michigan. Mitchell's Map of North America, 1755. Now, Chicago, according to Map of the British Dominions in North America, 1763, prefixed to Charlevoix's Voyages, 8°, Dublin, 1766.
7 Sic. Query—Beaver?
THOMAS] ENGLISH POLICY TOWARD THE INDIANS 553
m' of English and nations of Indians have since upon their request been admitted into the same. Wee say upon these and many other good motives us hereunto moyeing have freely and voluntary surrendered delivered up and for ever quit claimed, and by these presents doe for us our heires and successors absolutely surrender, deliver up and for ever quit claime unto our great Lord and Master the King of England called by us Corachkoo and by the Christians William the third and to his heires and successors Kings and Queens of England for ever all the right title and interest and all the claime and demand whatsoever which wee the said five nations of Indians called the Maquase, Oneydes, Onnondages, Cayouges and Sinnekes now have or which wee ever had or that our heirs or successors at any time hereafter may or ought to have of, in or to all that vast Tract of land or Colony called Canagariarchio beginning on the northwest side of Cadarachqui lake and includes all that vast tract of land lyeing between the great lake of Ottawawa and the lake called by the natives Cahi- quage and by the Christians the lake of Swege and runns till it butts upon the Twichtwichs and is bounded on the westward by the Twichtwichs by a place called Quadoge conteining in length about eight hundred miles and in breath four hun- dred miles including the Country where Beayers and all sorts of wild game keeps and the place called Tjeughsaghrondie alias Fort de tret or Wawyachtenock and so runns round the lake of Swege till you come to a place called Oniadarundaquat which is about twenty miles from the Sinnekes castles including likewise the great falls Oakinagaro, all which [was] formerly posest by seaven nations of Indians ealled the Aragaritka whom by a fair warr wee subdued and drove from thence four score years agoe bringing many of them captives to our country and soe became to be the true owners of the same by conquest which said land is scituate lyeing and being as is above expressed with the whole soyle the lakes the rivers and all things pertaining to the said tract of land or colony with power to erect Forts and castles there, soe that wee the said Five nations nor our heires nor any other person or per- sons for us by any ways or meanes hereafter have claime challenge and demand of in or to the premises or any parte thereof alwayes provided and it is hereby expected that wee are to have free hunting for us and the heires and descendants from us the Five nations for ever and that free of all disturbances expecting to be protected therein by the Crown of England but from all the action right title interest and demand of in or to the premises or every of them shall and will be uterly excluded and debarred for ever by these presents and wee the said Sachims of the Five Nations of Indians called the Maquase, Oneydes, Onnandages, Cayouges and Sinnekes and our heires the said tract of land or Colony, lakes and rivers and premises and every part and parcell thereof with their and every of their appurtenances unto our souveraigne Lord the King William the third & his heires and successors Kings of England to his and their proper use and uses against us our heires and all and every other person lawfully claiming by from or under us the said Five nations shall and will warrant and forever defend by these presents—In Witness whereof wee the Sachims of the Five nations above mentioned in behalf of ourselves and the Five nations have signed and sealed this present Instrument and delivered the same as an Act and deed to the Hon"'* John Nanfan Esq" Lieut Goy' to our Great King in this province whom wee call Corlaer in the presence of all the Magistrates officers and other inhabitants of Albany praying our Brother Corlaer to send it over to Carachkoe our dread sou- veraigne Lord and that he would be graciously pleased to accept of the same Actum in Albany in the middle of the high street this nineteenth day of July in the thir- teenth year of His Majty’s reign Annoque Domini 1701.
This was confirmed twenty-five years later by a substantial renewal of the deed, but limited in extent and made in the form of a trust. the granting clause being as follows: !
We... Do hereby Ratify Confirm Submit and Grant and by these Presents do (for our Selves our heirs and Successors and in behalf of the whole nations of
1 New York Colonial Documents, vol. vy, p. 800.
554. INDIAN LAND CESSIONS IN THE UNITED STATES [=1H. any. 18
Sinnekes Cayouges & onnondages) Ratify Confirme Submit and Grant unto Our Most Sovereign Lord George by the grace of God King of Great Brittain France and Ireland Defender of the Faith & his heirs and Successors for Ever. all the Said Land and Beaver hunting to be Protected & Defended by his Said Majesty his heirs & Successors to and for the use of us our heirs & Successors and the said Three nations. And we Do allso of our own Accord {ree and Voluntary will Give Render Submit and Grant and by these presents do for onr Selves our heirs & Successors Give Render Submit and Grant unto Our Said Sovereign Lord King George his heirs and Successors for Ever all that Land Lying and being Sixty miles distance taken Directly from the water into the Country Beginning from a Creek Call’d Canahogue on the Lake Osweego, all along the said lake and all along the narrow passage from the said Lake to the Falls of Oniagara Called Cahaquaraghe and all along the River of Oniagara and all along the Lake Cadarackquis to the Creek Called Sodoms belonging to the Senekes and from Sodoms to the hill Called Tegerhunkserode Belonging to the Cayouges, and from Tegerhunckseroda to the Creek Called Cay- hunghage Belonging to the Onnondages atl the Said Land being of the Breadth of Sixty English miles as aforesaid all the way from the aforesaid Lakes or Rivers Directly into the Country and thereby Including all the Castles of the aforesaid Three nations with all the Rivers Creeks and Lakes within the Said Limits to be protected & Defended by his said Majesty his heirs and Successors for Ever To and for Our UsE our heirs & Sucessors and the Said Three Nations In Testimony whereof We have hereunto sett our Marks and Affixed our Seales in the city of Albany this fourteenth Day of September in The thirteenth year of his Majestys Reign Annog® Domini 1726
Although these concessions were made by the Indians solely for the purpose of placing themselves under the sovereignty and protection of the English government, attempts were afterward made to construe them as an absolute transfer of the Indian title, and grants were made by the authorities for tracts in said territory. This claim, however, was abandoned, although it does not appear that the individual grants were surrendered, notwithstanding this course was urged by Sir William Johnson. This, as might have been foreseen, resulted in serious trouble.
It appears by a report of the Lords of Trade, read before the Coun- cil at the Court of Saint James, November 23, 1761, and approved, the King being present, that the government had at last been aroused to the necessity of paying regard to the Indians’ rights, as shown by the following quotation therefrom :!
That it is as unnecessary as it would be tedious to enter into a Detail of all the Causes of Complaint which, our Indian Allies had against us at the commencement of the troubles in America, and which not only induced them thé reluctantly to take up the Hatchet against us and desolate the Settlement on the Frontiers but encour- aged our enemies to pursue those Measures which have involved us in a dangerous and critical war, it will be sufficient for the present purpose to observe that the primary cause of that discontent which produced these fatal Effects was the Cruelty and Injustice with which they had been treated with respect to their hunting grounds, in open violation of those solemn compacts by which they had yielded to us the Dominion, but not the property of those Lands. It was happy for us that we were early awakened to a proper sense of the Injustice and bad Policy of such a Conduct towards the Indians, and no sooner were those measures pursued which
1 Colonial documents, number five, vol. vu, p. 473. M4
THOMAS] ENGLISH POLICY TOWARD THE INDIANS 555
indicated a Disposition to do them all possible justice upon this head of Complaint than those hostilities which had produced such horrid scenes of devastation ceased, and the Six Nations and their Dependents became at once from the most inveterate Enemies our fast and faithfull Friends.
That their steady and intrepid Conduct upon the Expedition under General Am- herst for the Reduction of Canada is a striking example of this truth, and they now, trusting to our good Faith, impatiently wait for that event which by putting an End to the War shall not only ascertain the British Empire in America but enable Your Majesty to renew those Compacts by which their property in their Lands shall be ascertained and such a system of Reformation introduced with respect to our Interests and Commerce with them as shall at the same time that it redresses their Complaints and establishes their Rights give equal Security and Stability to the rights and Interests of all Your Majesty’s American Subjects.
That under these Circumstances and in this scituation the granting Lands hitherto unsettled and establishing Colonies upon the Frontiers before the claims of the Indians are ascertained appears to be a measure of the most dangerous tendency, and is more particularly so in the present case, as these settlements now proposed to be made, especially those upon the Mohawk River are in that part of the Country of the Possession of which the Indians are the most jealous having at different times expressed in the strongest terms their Resolution to oppose all settlements thereon as a manifest violation of their Rights.
This condition of affairs was no doubt due largely to the lack of any settled and well-defined policy on the part of the government in its dealings with the Indians in regard to their lands. This subject, as hitherto stated, seems to have been relegated, at least to a large extent, to the colonists or grantees of the royal charters; and although complaints from the Indians, or from others in their behalf, were fre- quently made directly to governmental authorities, it does not appear that the latter were aroused thereby to the necessity of adopting some policy on this subject. It was not until the war with France and the expedition against Canada that the government felt compelled to deal directly with this subject.
We find the Lords of Trade, in 1756, inquiring through Mr Pownalls of Governor Hardy what should be the proper and general system for the management of Indian affairs.
The reply of this official was to the effect that, with respect to the Six Nations, the governor of the province should have the chief direc- tion of their affairs and that no steps should be taken with them with- out consulting him, as he had always directed the transactions with them; but he suggested that “some proper person under this direction should have the management and conduct of Indian affairs.” He recommended for this purpose Sir William Johnson, who had previously been commissioned for the same purpose by General Braddock.
This suggestion was adopted, though Sir William Johnson refused to accept a new commission, preferring to act under that received from General Braddock, which was broader in its scope, and referred to tribes other than the Six Nations. This was permitted.
On December 2, 1761, the Lords of Trade submitted to the King a draft of instructions to the governors of the colonies, which were
556 INDIAN LAND CESSIONS IN THE UNITED STATES _ [evTH. any. 18
approved by him. As these indicate a reform in the system which had prevailed, they are given here:
Draft of an Instruction for the Governors of Nova Scotia, New Hampshire, New York, Virginia, North Carolina, South Carolina, and Georgia forbidding them to Grant Lands or make Settlements which may interfere with the Indians bordering on those Colonies. ;
Whereas the peace and security of Our Colonies and Plantations upon the Conti- nent of North America does greatly depend upon the Amity and Alliance of the several Nations or Tribes of Indians bordering upon the said Colonies and upon a just and faithfull Observance of those Treaties and Compacts which have been here- tofore solemnly entered into with the said Indians by Our Royall Predecessors Kings & Queens of this Realm, And whereas notwithstanding the repeated Instructions which have been from time to time given by Our Royal Grandfather to the Govern- ors of Our several Colonies upon this head the said Indians have made and do still continue to make great complaints that Settlements have been made and possession taken of Lands, the property of which they have by Treaties reserved to themselves by persons claiming the said lands under pretence of deeds of Sale and Conveyance illegally fraudulently and surreptitiously obtained of the said Indians; And Whereas it has likewise been represented unto Us that some of Our Governors or other Chief Officers of Our said Colonies regardless of the Duty they owe to Us and of the Wel- fare and Security of our Colonies have countenanced such unjust claims and pre- tensions by passing Grants of the Lands so pretended to have been purchased of the Indians We therefor taking this matter into Our Royal Consideration, as also the fatal Effects which would attend a discontent amongst the Indians in the present situation of affairs, and being determined upon all occasions to support and protect the said Indians in their just Rights and Possessions and to keep inviolable the Treaties and Compacts which have been entered into with them, Do hereby strictly enjoyn & command that neither yourself nor any Lieutenant Governor, President of the Council or Commander in Chief of Our said aed of do upon any pretence whatever upon pain of Our highest Displeasure and of being forthwith removed from your or his office, pass any Grant or Grants to any persons whatever of any lands within or adjacent to the Territories possessed or occupied by the said Indians or the Property Possession of which has at any time been reserved to or claimed by them. And it is Our further Will and Pleasure that you do publish a proclamation in Our Name strictly enjoining and requiring all persons whatever who may either wilfully or inadvertently have seated themselves on any Lands so reserved to or claimed by the said Indians without any lawfull Authority for so doing forthwith to remove therefrom And in case you shall find upon strict enquiry to be made for that purpose that any person or persons do claim to hold
1 Province Colony
or possess any lands within Our saic upon pretence of purchases made of the said Indians without a proper licence first had and obtained either from Us or any of Our Royal Predecessors or any person acting under Our or their Authority you are forthwith to cause a prosecution to be carried on against such person or persons who shall haye made such frandulent purchases to the end that the land may be recovered by due Course of Law And whereas the wholsome Laws that have at different times been passed in several of Our said Colonies and the instructions which have been given by Our Royal Predecessors for restraining per- sons from purchasing lands of the Indians without a Licence for that purpose and for regulating the proceedings upon such purchases have not been duly observed, It is therefore Our express Will and Pleasure that when any application shall be made to you for licence to purchase lands of the Indians you do forbear to grant such licence untill youshall have first transmitted to Us by Our Commissioners for Trade and Plantations the particulars of such applications as well as in respect to the situation as the extent of the lands so proposed to be purchased and shall have
THOMAS} ENGLISH POLICY TOWARD THE INDIANS 557
received Our further directions therein; And it is Our further Will and Pleasure that you do forthwith cause this Our Instruction to you to be made Publick not only within all parts of your said a inhabited by Our Subjects, but also amongst the several Tribes of Indians living within the same to the end that Our Royal Will ond Pleasure in the Premises may be known and that the Indians may be apprized of Our determin’d Resolution to support them in their just Rights, and inviolably to observe Our Engagements with them!
It was not surprising that the condition complained of should have resulted from a wavering and undefined policy and double-headed sys- tem. First, a total ignoring of the Indians’ rights, turning over the problem to the colonies; then appointing an agent of Indian affairs on behalf of the government, yet subject in most respects to the control of the colonial governors, who might, and did in more than one case, grant away tracts of the very lands reserved by this agent to the natives. Such a system, or rather lack of system. was likely to result in confusion and trouble.
Two agents were appointed, one for the northern district—that is to say, for certain of the northern colonies and the territory not embraced in the colonial limits—and another for the southern district.
Lord Egremont, writing on May 5, 1763, to the Lords of Trade in regard to questions relating to North America, remarks, among other things, as follows:
The second question which relates to the security of North America, seems to inclide two objects to be provided for; The first is the security of the whole against any European Power; The next is the preservation of the internal peace & tran- quility of the Country against any Indian disturbances. Of these two objects the latter appears to call more immediately for such Regulations and Precautions as your Lordships shall think proper to suggest &ca.
Tho in order to succeed effectually in this point it may become necessary to erect some Forts in the Indian Country with their consent, yet his Majesty’s Justice and Moderation inclines him to adopt the more eligible Method of conciliating the minds of the Indians by the mildness of His Government, by protecting their persons and property, & securing to them all the possessions rights and Privileges they have hitherto enjoyed & are entitled to most cautiously guarded against any Invasion or Occupation of their hunting Lands, the possession of which is to be acquired by fair purchase only, and it has been thought so highly expedient to give the earliest and most convincing proofs of his Majesty’s gracious and friendly Intentions on this head, that I have already received and transmitted the King’s commands to this pur- pose to the Governors of Virginia, the two Carolinas & Georgia, & to the Agent for Indian Affairs in the Southern Department, as your Lordships will see fully in the inclosed copy of my circular letter to them on this subject.?
In August of the same year the Lords of Trade informed Sir William Johnson that they had ‘‘ proposed to His Majesty that a proclamation should be issued declaratory of His Majesty’s final determination to permit no grants of lands nor any settlement to be made within certain fixed bounds under pretence of purchase, or any pretext whatever, leay- ing all the territory within these bounds free for the hunting grounds of the Indian Nations, and for the free trade of all his subjects.”
! New York Colonial Documents, vol. vu, pp. 478-479. 2Tbid., pp. 520-521.
558 INDIAN LAND CESSIONS IN THE UNITED STATES _ [ev#. ann. 18
That the management of Indian affairs was at last taken out of the hands of at least the governor of New York appears from a letter of Lieutenant-Governor Colden to the Ear] of Halifax, December 8, 1763,
As the territories of Quebec, East Florida, and West Florida had, by virtue of the treaty with France, February 10, 1763, come under the control of Great Britain, a proclamation for their government was issued October 7, 1763. The following clauses relating to the policy to be pursued with the Indians in these colonies, and some other sections mentioned, are inserted here:!
And whereas, it is just and reasonable, and essential to our interest and the security of our colonies, that the several nations or tribes of Indians with whom we are connected, and who live under ovr protection, should not be molested or dis- turbed in the possession of such parts of our dominions and territories as, not having been ceded to, or purchased by us, are reserved to them, or any of them, as their hunting grounds; we do, therefore, with the advice of our privy council, declare it to be our royal will and pleasure, that no Governor or commander in chief, in any of our colonies of Quebec, East Florida, or West Florida, do presume, upon any pretence whatever, to grant warrants of survey, or pass any patents for lands beyond the bounds of their respective goveruments, as described in their commis- sions; as, also, that no Governor or commander in chief of our other colonies or plantations in America, do presume for the present, and until our further pleasure be known, to grant warrants of survey, or pass patents for any lands beyond the heads or sources of any of the rivers which fall into the Atlantic ocean from the West or Northwest; or upon any lands whatever, which, not having been ceded to, or pur- | chased by, us, as aforesaid, are reserved to the said Indians or any of them.
And we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve under our soyereignty, protection, and dominion, for the use of the said Indians, all the land and territories not included within the limits of our said three new Governments, or within the limits of the territory granted to the Hndson’s Bay Company; as also all the lands and territories lying to the Westward of the sources of the rivers which fall into the sea from the West and Northwest as aforesaid; and we do hereby strictly forbid, on pain of our displeasure, all our loy- ing subjects from making any purchases or settlements whatever, or taking posses- sion of any of the lands above reserved, without our special leave and license for that purpose first obtained.
And we do further strictly enjoin and require all persons whatever, who have either wilfully or inadvertently seated themselves upon any lands within the coun- tries above described, or upon any other lands, which, not having been ceded to, or purchased by, us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such settlements.
And whereas great frauds and abuses have been committed in the purchasing lands of the Indians, to the great prejudice of our interests, and to the great dissat- isfaction of the said Indians; in order, therefore, to prevent such irregularities for the future, and to the end that the Indians may be convinced of our justice and determined resolution to remove all reasonable cause of discontent, we do, with the advice of our privy council, strictly enjoin and require that no private person do presume to make any purchase from the said Indians, of any lands reserved to the said Indians, within those parts of our colonies where we have thought proper to allow settlement; but that, if, at any time, any of the said Indians should be inclined to dispose of the said lands, the same shall be purchased only for us, in our name, at some public meeting or assembly of the said Indians, to be held for that pur- pose, by the Governor or commander-in-chief of our colony, respectively, within which they shall lie: and in ease they shall lie within the limits of any proprietaries,
1 Laws, ete, relating to Public Lands (1828), pp. 86-88.
THOMAS] ENGLISH POLICY TOWARD THE INDIANS 559
conformable to such directions and instructions as we or they shall think proper to give for that purpose.
Although primarily relating to the colonies of Quebec, East Florida, and West Florida, it is evident from the distinct statements therein that it was intended, as regards the points referred to in the quotation, to be of general application. The policy set forth in this proclamation is just and honorable, and appears to have been followed, as a general rule, by Great Britain in its subsequent dealings with the Indians, which, after 1776, were limited to its northern possessions.
In April, 1764, Sir William Johnson, as “Sole agent and superin- tendent of Indian affairs for the Northern parts of North America,” concluded articles of peace with the Seneca Indians in which they ceded to the King the following lands:
From the Fort of Niagara, extending easterly along Lake Ontario, about four miles, comprehending the Petit Marais, or landing »lace, and running from thence southerly, about fourteen miles to the Creek above the Fort Schlosser or Little Niagara, and down the same to the River, or Strait and across the same, at the great Cataract; thence Northerly to the Banks of Lake Ontario, at a Creek or small Lake about two miles west of the Fort, thence easterly along the Banks of the Lake Ontario, and across the River or Strait to Niagara, comprehending the whole carrying place, with the Lands on both sides the Strait, and containing a Tract of ab‘ fourteen miles in length and four in breadth.!
As the articles make no mention of payment it is presumed the grant was made by the Seneca to purchase jeace with the English.
Most of the foregoing facts relate, it is true, to the lands and Indians of New York, and might very properly be considered in referring to the policy of that colony; however, as they give some insight into the English policy in the latter days of British rule over the colonies, they are presented here. It must be admitted, however, as before stated, that they indicate an ill-defined system resulting apparently from a neglect to take the subject into consideration at the outset. Had some provision for the proper treatment of the Indians in regard to their possessory rights been made in the original charters, and the lords pro- prietary and governors of the colonies been required to observe these provisions, much of the trouble with the natives experienced by the gov- ernment and the colonies would, in all probability, have been avoided.
It is unnecessary to allude to the transactions of the English author- ities in the southern colonies, as these, so far as they relate to purchases and grants of lands by the Indians, will be referred to under the respec- tive colonies. However, there are two or three treaties in regard to lands in the south, outside of the colonies, which should be mentioned, as the boundaries fixed therein are referred to in one or two of the treaties in the accompanying schedule.
The first of these is ‘a treaty between Great Britain and the Chicka- saw and Choctaw Indians,” made at Mobile, March 26,1765. Article 5 is as follows:
And to prevent all disputes on account of encroachments, or supposed encroach- ments, committed by the English inhabitants of this or any other of His Majesty’s
1New York Colonial Documents, vol. Vu, p. 621.
560 INDIAN LAND CESSIONS IN THE UNITED STATES [ern. any. 18
Provinces, on the lands or hunting grounds reserved and claimed by the Chickasaw and Choctaw Indians, and that no mistakes, doubts, or disputes, may, for the future, arise thereupon, in consideration of the great marks of friendship, benevolence, and clemency, extended to us, the said Chickasaw and Choctaw Indians, by His Majesty King George the Third, we, the chiefs and head warriors, distinguished by great and small medals, and gorgets, and bearing His Majesty’s commissions as Chiefs and leaders of our respective nations, by virtue and in pursuance of the full right and power which we now have and are possessed of, have agreed, and we do hereby agree, that, for the future, the boundary be settled by a line extended from Gross Point, in the island of Mount Louis, by the course of the western coast of Mobile Bay, to the mouth of the Eastern branch of Tombecbee river, and north by the course of the said river, to the confluence of Alebamont and Tombecbee rivers, and afterwards along the western bank of Alebamont river to the mouth of Chickasaw river, and from the confluence of Chickasaw and Alebamont rivers, a straight line to the con- fluence of Bance and Tombecbee rivers; from thence, by a line along the western bank of Bance river, till its confluence with the Tallotkpe river; from thence, by a straight line, to Tombecbee river, opposite to Alchalickpe; and from Alchalickpe, by a straight line, to the most northerly part of Buckatanne river, and down the course of Buckatanne river to its confluence to the river Pascagoula, and down by the course of the river Pascagoula, within twelve leagues of the sea coast; and thence, by a due west line, as far as the Choctaw nation have a right to grant.
And the said chiefs, for themselves and their nations, give and confirm the prop- erty of all the lands contained between the above described lines and the sea to His Majesty the King of Great Britain, and his successors, reserving to themselves full right and property in all the lands to the northward of said lines now possessed by them; and none of His Majesty’s white subjects shall be permitted to settle on Tombechee river to the northward of the rivulet called Centebonck.!
The second is “a treaty between Great Britain and the Upper and Lower Creek Indians,” signed at Pensacola, Florida, May 28, 1765. Article 5 is as follows:
And to prevent all disputes on account of encroachments, or supposed encroach- ments, committed by the English inhabitants of this or any other of his Majesty’s provinces, on the lands or hunting grounds reserved and claimed by the Upper and Lower Creek nations of Indians, and that no mistakes, doubts, or disputes, may, for the future, arise thereupon, in consideration of the great marks of friendship, benev- olence, and clemency, extended to us, the said Indians of the Upper and Lower Creek nations, by His Majesty King George the Third, we, the said chiefs and head warriors, leaders of our respective nations, by virtue and in pursuance of the full rights and power we have and are possessed of, have agreed, and we do hereby agree, that, for the future, the boundary be at the dividing paths going to the nation and Mobile, where is a creek; that it shall run along the side of that creek until its confluence with the river which falls into the bay; then to run around the bay and take in all the plantations which formerly belonged to the Yanmasee Indians; that no notice is to be taken of such cattle or horses as shall pass the line; that, from the said dividing paths towards the west, the boundary is to run along the path leading to Mobile, to the creek, called Cassaba; and from thence, still in a straight line, to another creek or great branch, within forty miles of the ferry, and so to go up to the head of that creek; and from thence turn round towards the river so as to include all the old French settlements at Tassa; the eastern line to be determined by the flowing of the sea in the bays, as was settled at Augusta. And we do hereby grant and confirm unto His Majesty, his heirs, and successors, all the lands contained between the said lines and the sea coast.?
1 Laws, U.S., ete, respecting Public Lands, vol. 11, 1836, app., p. 275.* 2 Tbid., p. 276.*
THOMAS] ENGLISH POLICY TOWARD THE INDIANS 561
The third is a treaty between the same parties as the last, made at Picolata, Florida, November 18, 1765. The fifth article is as follows:
Tc prevent all disputes on account of encroachments, or supposed encroachments, made by the English inhabitants of his Majesty’s said province, on the lands or hunting grounds reserved and claimed by the Upper and Lower nations of Creek Indians, and that no doubts, mistakes, or disputes, may, for the future, arise; in consideration of the great marks of friendship, benevolence, and clemency, gener- osity, and protection, extended to us, the said Indians of the Upper and Lower Creek nations, by His Majesty King George the Third, we, the chiefs, head warriors, and leaders, of our respective nations, by virtue and in pursuance of the full rights and power which we now have, and are possessed of, have agreed, and we do hereby agree, that, for the future, the boundary line of His Majesty’s said province of East Florida shall be, all the sea coast as far as the tide flows, in the manner settled with the English by the Great Tomachiches, with all the country to the eastward of St. John’s river, forming nearly an island from its source to its entrance into the sea, and to the westward of St. John’s river by a line drawn from the entrance of the creek Ocklawagh into said river above the great lake, and near to Spalding’s upper trading storehouse, to the forks of Black creek at Colville’s plantation; and from thence to that part of St. Mary’s river which shall be intersected by the continu- ation of the line to the entrance of Turkey creek into the river Altamaha. That no notice is to be taken of such horses or cattle as shall pass the line. And we do hereby accordingly grant and confirm unto His Majesty, his heirs and successors, all the said lands within the said lines.!
But little need be said in regard to the English policy in the Cana- dian provinces from their acquisition in 1762. The system outlined in the proclamation of October 7, 1763, appears to have been followed from that time up to the present day, and it may truly be said that, as a general rule, it has been one of justice and humanity creditable to the Canadian authorities. Mr Joseph Howe, in retiring from his position as superintendent of Indian affairs in 1872, makes the follow- ing statement: ‘“‘Up to the present time the results are encouraging, and although I regret that the state of my health will soon compel me to relinquish the oversight of the work, I trust it will not be neglected by those who may come after me, and who ought never to forget that the crowning glory of Canadian policy in all times past, and under all administrations, has been the treatment of the Indians.” Though this statement is perhaps too broad, yet the course pursued under English control, with some exceptions relative to the seaboard provinces, has been an honorable one.
One precaution which the commissioners adopted and have generally followed was to require the assembled Indians to name the chiefs, or per- sons of their tribes, who were authorized by them to make the treaty and sign the grant. This fact and the names of the persons so selected were inserted in the deed or grant.
1 Laws, U.§., etc, respecting Public Lands, vol. 11, 1836, app., p. 276*.
562 INDIAN LAND CESSIONS IN THE UNITED STATES _ [ertH. ann. 18
COLONTAL POLICY TOWARD THE INDIANS THE POLICY IN GENERAL
In treating of the policy and methods adopted by the different colo- nies in their dealings with the Indians in regard to their lands, one object constantly kept in yiew will be to limit the investigation strictly to this subject. No attempt, therefore, will be made to enter into the general Indian history of colonial days, nor to discuss the rights or wrongs of settlers or Indians. As heretofore stated, the scope of the present work does not embrace the moral element in the numerous transactions referred to, nor the policy adopted; it is limited as strictly as possible to the facts seen from the legal point of view and to the usual custom of the nation or colony.
As the policy of the different colonies in the respect now treated of was seldom, if ever, expressed at the outset, it must, to a large extent, be ascertained from their practical dealings with the natives in regard to their lands and their titles thereto. Reference will be made, there- fore, to some of the more important purchases, cessions, grants, ete, by which possession of the lands of the different colonies was obtained and to the laws enacted; but no attempt to give a systematic list of the various cessions to or by the colonies, or of all the laws relating to the subject, will be made. The only object in view in presenting such as will be given is to furnish data by which to judge of the method of treating with the Indians and the policy adopted. Even where histo- rians have clearly defined the policy of a colony in this respect, the data are still furnished that the reader may be enabled to form his own opinion, for historians are often more or less influenced by the point of view from which they write.
It may be remarked here in regard to the lands purchased of the natives in the early days, that in many cases the bounds mentioned in the deeds are so indefinite that it is impossible to define them on a map. In some instances the limits actually adopted have been preserved by tradition, but in many others they were so indefinite that one purchase overlapped or duplicated or even triplicated, in part, another. As examples of this class, the purchases by the settlers of Connecticut may be referred to. This uncertainty hangs about almost every one of the earlier colonial purchases. Even those by William Penn, so lauded in history as examples of sturdy Quaker honesty, must be included in this category, as their bounds and extent are poorly defined and in some instances depend entirely on tradition. The extent, in some cases, was decided by a day’s travel on foot or horseback, while some of the grants overlapped one another.
A loose custom prevailed in some of the colonies of allowing individ- uals to purchase from the Indians without sufficient strictness as to the authoritative acknowledgment or recording of such deeds of purchase. Many of these are known only traditionally, others only through law-
THOMAS] VIRGINIA’S POLICY TOWARD THE INDIANS 563
suits which arose out of these claims. It is next to impossible at this day to ascertain all these individual purchases; moreover, it is not apparent that it would serve any good purpose in this connection to give them were it possible to do so.
It has been stated repeatedly that the policy of the colonies was the same as that afterward adopted by the United States. While this may be true in a broad sense, there were differences in method which had important bearings on the history of the different provinces. In fact, the theory in regard to the Indian tenure was not precisely the same” throughout, as will. become evident from a perusal of what is presented. It will also be seen that the idea on which the authorities based their proceedings was not always the same, those of one colony looking chiefly to meeting the claims of the Indians, while the main object in other cases was to obtain as much land as possible, thus differing, though dealing fairly.
VIRGINIA
Although the letters patent of James I to Sir Thomas Gage and oth- ers for “‘ two several colonies,” dated April 10, 1606, and his second charter, May 23, 1609, to “the Treasurer and Company of Adventurers and Planters of the City of London for the first Colony of Virginia,” granted full and complete right in the land, ‘in free and common socage,” yet neither contains any allusion to the rights or title of the natives. The third charter, granted the last-named company March 12, 1611-12, also fails to make any allusion to the title of the Indians or to the mode of dealing with them.
The “instructions” given by the council of the London Virginia Company to the first adventurers (1606) contains the following very slight indication of the policy to be adopted in dealing with the Indi- ans: ‘‘In all your passages you must have great care not to offend the naturals, if you can eschew it; and employ some few of your company to trade with them for corn and all other lasting victuals if you (they?) have any: and this you must do before that they perceive you mean to plant among them.” !
Burk,’ speaking of the London Company and the nature of its goy- ernment, summarizes its dealings with the Indians as follows:
At the coming of the English, the Indians naturally enjoyed the best and most convenient stations for fishing, and the most fertile lands: But in proportion as new settlers came in, they rapidly lost those advantages. Insome cases the colonists claimed by the right of conquest, and the imaginary title conferred by the king’s charter. In general however, they acted on better principles, anc purchased from the heads of tribes, the right of soil, in a fair and (as far as was practicable) in a legal manner. In the treaty entered into between sir G. Yeardley and Opechancanough,
we find a sweeping clause, granting to the English permission to reside and inhabit at such places on the banks of certain rivers, which were not already occupied by
1E. D. Neill, History of the London Virginia Company, p.8; Smith's Works, Arber’s edition, The English Scholar's Library, No. 16, p. xxxv. *History of Virginia (1804), vol., I, p. 312, appendix.
564 INDIAN LAND CfSSIONS IN THE UNITED STATES _ [erH. ann. 18
the natives. ’Tis true, the circumstances of the parties admitted not a fair and legal purchase; and after the massacre, the Indians were stripped of their inheritance without the shadow of justice.
The special items, however, upon which this verdict appears to have been founded are brief and unsatisfactory. It is only after the dissolu- tion of the company in 1624 and the records of the general assembly are reached, that the policy of Virginia in regard to the Indian title is clearly set forth.
According to Stith,! Powhatan’s “hereditary countries were only Powhatan, Arrohatock, about twelve miles down, which hath since been corrupted to Haddihaddocks, Appamatock, Youghtanund, Pamunkey, and Mattapony, to which may be added, Werowocomoco and Kiskiack, or as it hath since been called Cheesecake, between Williamsburg and York. <All the rest were his Conquests; and they were bounded on the South by James river, with all its Branches, from the Mouth to the Falls, and so across the Country, nearly as high as the Falls of all the great Rivers over Patowmack even to Patuxen in Maryland. And some Nations also on the Eastern Shore owned Subjection to him.”
In 1609 Smith purchased of Powhatan the place called Powhatan, which had formerly been this chief’s residence. The conditions of this agreement, aS given by Stith (page 104), were as follows: “That the English should defend him against the Manakins; that he [Powhatan] should resign to them the fort and the houses, with all that country, for a proportion of copper,” ete. The extent of territory included under “all that country” is unknown.
It also appears from Stith (page 140) that in 1616 the Indians, being much straitened for food, applied, through their chief, to Sir Thomas Dale, then governor of the English colony, for corn.
Sir Thomas Dale, among the many Praises, justly due to his Administration, had been particularly careful of the Supplies of Life; and had, accordingly, always caused so much Corn to be planted, that the Colony lived in great Plenty and Abun- dance. Nay, whereas they had formerly been constrained, to buy Corn of the Indians Yearly, which exposed them to much Scorn and Difficulty, the Case was so much altered under his Management, that the Indians sometimes applied to the English, and would sell the very Skins from their Shoulders for Corn. And to some of their petty Kings, Sir Thomas lent four or five hundred Bushels; for Repayment whereof the next Year, he took a Mortgage of their whole countries.
Whether the Indians’ claim that this was repaid was conceded, or was true, is not known. Nothing farther than an application for corn by Mr Yeardly and a refusal by the Indians to furnish it is recorded.
In 1618 a party of Chickahominy killed a number of persons, and complaint was made to Opechancanough, who was their chief. In reply he sent a basket of earth to the governor as an evidence that the town of the aggressors was given to the English.
It appears incidentally from Burk’s History that a treaty was con- cluded with the Indians in 1636, fixing their boundary line, but no par-
1 History of Virginia, Sabin's reprint, pp. 53-54.
THOMAS] VIRGINIA’S POLICY TOWARD THE INDIANS 565
ticulars are given nor does he say anything more in regard to it. In 1639-40 the Indians became restless and dissatisfied because of the encroachments made upon their lands by the vast and indiscriminate grants made by Hervey. These encroachments were on the lands secured to the Indians by the treaty of 1636, and led to a war with Opechancanough.' However, it seems that at some time between 1640 and 1642 peace was concluded through the general assembly. In this case, according to Burk, if was made separately with the heads of the tribes and in a spirit of humanity. It was attained “by mutual capitu- lations and articles agreed and concluded on in writing.” But these do not appear in any of the published records, therefore it is impossible to state what reference was made to lands or boundaries.
By an act of the “ Grand Assembly,” October 10, 1649, it was ordered as follows :”
Act. 1, Art.2. Thatit shall be free for the said Necotowance [‘ King” of the Indians] and his people, to inhabit and hunt on the north side of Yorke River, without any interruption from the English, Provided that if hereafter, It shall be thought fitt by the Governor and Council to permitt any English to inhabitt from Poropotanke downewards. that first Necotowance be acquainted therewith.
Art. 3. That Necotowance and his people leave free that tract of land between Yorke river and James river, from the falls of both the rivers to Kequotan, to the English to inhabitt on, and that neither he the said Necotowance nor any Indians do repaire to or make any abode ypon the said tract of land, vpon pain of death.
An act was passed July 5, 1653, securing such lands on York river as he should make choice of to Totopotomoy, the successor of Ope- chancanough, as follows:
The order of the last Assembly in the busines relateing to land in York River desired by Tottopottomoy, as information by some perticular members of this Assembly is now represented, is ordered to be and remaine in foree as formerly, Pro- vided he lives on the same; but if he leaves it then to devolve to Coll. William Clay- borne, according to former orders which gave him libertie to make his choice, whether he would haye Ramomak, or the land where now he is seated, and that he appear in person before the Governor and Council to make his choice the next quarter courte which of the two seates he will hold, and Capt. John West, and Mr. William Hocka- day are enabled to give a safe conduct to the said Tottopottomoy and his Indians for their coming to towne, and his returne home. And the commissioners of York are required that such persons as are seated ypon the land of Pamunkey or Chicka- hominy Indians be removed according to a late act of Assembly made to that pur- pose, And Coll. John Fludd to go to Tottopottomoy fo examine the proceedings of business and to deliver it vypon his oath.®
At the same time the commissioners of Gloster (the statute says Gloster but Burk says York) and Lancaster counties were directed ‘to proportion the Indians inhabiting the said counties their several tracts of land... and to set and assign them such places and bounds to hunt in as may be convenient both for the inhabitants and Indians.”
By act 4 of the same assembly the commissioners of Northampton county were empowered “to take acknowledgment of the Indians in
1 Burk, History of Virginia, vol. 111, p. 53. * Hening’s Statutes at Large, vol. 1 (1823), pp. 323-324. 8Tbid., p, 380,
566 INDIAN LAND CESSIONS IN THE UNITED STATES _ [eTH. any. 18
their county for sale of their lands.” But this was to be done only on condition that a majority of the Indians desired it, and that the terms were just. This policy of granting to county commissioners the right to purchase Indian lands was soon found to lead to fraud and injustice, hence the passage of the following laws relating to the sales by Indians.!
The first declaration of general policy in respect to Indian lands is found in the act of March 10, 1655, which is as follows:
Act. 1. What lands the Indians shall be possessed of by order of this or other ensueing Assemblyes, such land shall not be alienable by them the Indians to any man de futuro, for this will putt ys to a continnall necessity of allotting them new lands and possessions and they will be allwaies in feare of what they hold not being able to distinquish between our desires to buy or inforcement to haye, in case their grants and sales be desired; Therefore be it enacted, that for the future no such alienations or bargaines and sales be valid without the assent of Assembly. This act not to prejudice any Christian who hath land allready granted by pattent.?
The following acts of the same general tenor are extracted from Hening’s Statutes, and need no comment:
[March 13th, 1657-8. Act. 51. Pnacted:] That there be no grants of land to any Englishman whatsoewer (de futuro) vntil the Indians be first served with the proportion of ffiftie acres of land for each bowman; and the proportion for each per- ticular towne to lie together, and to be surveyed as well woodland as cleered ground, and to be layd out before pattented, with libertie of all waste and vnfenced land for hunting for the Indians. Further enacted, that where the land of any Indian or Indians bee found to be included in any pattent allreadie granted for land at Rappa- hannock or the parts adjacent, such pattentee shall either purchase the said land of the Indians or relinquish the same, and be therefore allowed satisfaction by the English inhabitants of the said places.*
[Act 72, same assembly:] All the Indians of this collonie shall and may hold and keep those seates of land which they now have, and that no person or persons what- soever be suffered to entrench or plant vpon such places as the said Indians claime or desire vntil full leave from the Governour and Councill or com’rs. for the place; Yet this act not to be extended to prejudice those English which are now seated with the Indians’ former consent vnles ypon further examination before the Grand Assemblie cause shall be found for so doeing . . . Further enacted. That the Indians as either now or hereafter shall want seates to live on, or shall desire to remove to any places void or vntaken vp, they shall be assisted therein, and order granted them, for confirmation thereof, And no Indians to sell their lands but at quarter courtes, And that those English which are lately gone to seate neare the Pamunkies and the Chichominyes on the north side of Pamunkie river shall be recalled and such English to choose other seates else where, and that the Indians as by a former act was granted them, shall have free liberty of hunting in the woods without the English fenced plantations, these places excepted between Yorke river and James river and between the Black water and the Manakin towne and James river, and noe pattent shall be adjudged valid which hath lately passed or shall pass contrary to the sense of this act, Nor none to be of force which shall intrench yppon the Indians’ lands to their discontent without expresse order for the same.*
The act of March 13, 1658, same assembly, ratifies the grant of the
“ Wiccacomoco Indians” of certain lands belonging to them in North- umberland county to the “honourable Samuel Mathewes,” governor.
1Burk, History of Virginia, vol, 11, p. 102. 8Tbid., p. 456-457. ?Hening's Statutes at Large, vol. 1, p. 396. 4 Ibid., p. 467.
THOMAS] VIRGINIA’S POLICY TOWARD THE INDIANS 567
The act of October 11, 1660, authorizes the governor to have sur- veyed and laid off for the “ Accomacke” Indians, on the east side of the bay, ‘“‘such a proportion of land as shall be sufficient for their maintenance, with hunting and fishing excluded.” This land was to be secured to the Indians, but they were to have no power to alienate it to the English.
An act passed March 23, 1661, brings to view the difficulty sometimes encountered by private purchases which were made before the passage of the act of March 10, 1655, or in disregard of it. It is as follows:
Upon the petition of Harquip the Mangai of the Chickahomini Indians to have all the lands from Mr. Malorys bounds to the head of Mattaponi river & into the woods to the Pamaunkes It is accordingly ordered that the said land be confirmed to the said Indians by pattent, and that no Englishman shall upon any pretence disturbe them in their said bounds nor purchase it of them unles the major part of the great men shall freely and voluntarily declare their consent in the quarter court or assembly.
Whereas a certaine grant hath been made to the Chickahomini Indians of certaine lands in which tract Major Gennerall Manwaring Hamond claimeth a devident of 2,000 acres granted him by pattent, It is ordered, that the same Major Gennerall Hamond be desired to purchase the same of the Indians or to procure their consent for the preservation of the countreys honour and reputation.1
Numerous disputes having arisen between the English and the Indians in regard to land purchases, and frequent complaints having been made by the latter of encroachments upon their territory, the following act was passed in 1660:
Act 138. Whereas the mutuall discontents, complaints, jealousies and ffeares of English and Indians proceed chiefly from the violent intrusions of diverse English made into their lands, The governor, councell and burgesses . . . enact, ordaine and confirme that for the future noe Indian king or other shall upon any pretence alien and sell, nor noe English for any cause or consideration whatsoever purchase or buy any tract or parcell of land now justly claymed or actually possest by any Indian or Indians whatsoever; all such bargaines and sales hereafter made or pretended to be made being hereby declared to be invalid, voyd and null, any acknowledgement, surrender, law or custome formerly used to the contrary not- withstanding.?
This is probably the act referred to by Charles Campbell’ where he makes the following statement:
The numerous acts relating to the Indians were reduced into one; prohibiting the English from purchasing Indian lands; securing their persons and property; pre- venting encroachments on their territory; ordering the English seated near to assist them in fencing their corn-fields; licensing them to oyster, fish, hunt and gather the natural frnits of the country; prohibiting trade with them without license, or im- prisonment of an Indian king without special warrant; bounds to be annually defined; badges of silver and copper plate to be furnished to Indian kings; no Indian to enter the English confines without a badge, under penalty of imprison- ment, till ransomed by one hundred arms length of roanoke (Indian shell money) ; Indian kings, tributary to the English, to give alarm of approach of hostile Indians; Indians not to be sold as slaves, &c.
'Hening’s Statutes at Large, vol. 11, p. 34. 2 Thid., p. 138. 8 History of the Colony and Ancient Dominion of Virginia (1847), p. 77
18 ETH, Pr 2——4
568 INDIAN LAND CESSIONS IN THE UNITED STATES [e7s. ann. 18
By the act of October 10, 1665, the bounds of the Indians on the south side of James river were fixed as follows: “ From the heads of the southern branches of the blackwater to the Appomatuck Indians, and thence to the Manokin Town.” This boundary was more accurately fixed in 1691, as will later be shown.
After the death of Opechancanough, no chief of sufficient prestige and authority to hold the Indians in confederation having arisen, a long peace followed. Several of the tribes retired westward and those which remained, reduced in numbers and wanting concert, lingered on the- frontiers, and exchanged with the settlers their superfluous prod- ucts at stated marts. This peace, however, was broken in 1675. The Indians at the head of Chesapeake bay and tribes farther south made sudden and furious inroads upon the frontier settlements “marked by devastation and blood.”! On the 6th of June, 1676, during the war which ensued, the following act was passed:
Act 3. Whereas this country is now engaged in a warr against the Indians, and will thereby inevitably be at great cost and charges in prosecuting the same, and whereas at or about the last conclusion of peace with the Indians, certain great quantities of land was assigned and sett apart, for them, which lands were they sold for the use of the country would in some measure help to defray the publique charge aforesaid, . . . Therefore enacted and ordained by governour, council and burgesses of this grand assembly, and by the authority of the same, that all lands whatsoever sett apart for Indians in the last conclusion of peace with them and other Indian lands as now are, or hereafter shall be by them deserted, bee not granted away by pattent to any perticuler person or persons, but that the same be reserved, and by due forme of law vested on the country, and dispose to the use of the publique towards defraying the charge of this warr. Provided alwaies that this act nor any thing therein contained shall prejudice any legall grants heretofore made to any person or persons whatsoever of any part or parcell of the said lands, and all such Indian lands as have bin pattented since the peace aforesaid, and before such deser- tion shall be held and deemed to be illegally pattented.?
The act of April 16, 1691, above referred to as determining the boundary of the Indian territory south of James river, is as follows:
Forasmuch as by a clause of the 8th act of assembly made at James Citty October the tenth, 1665, it is enacted that the bounds of the Indians on the south side James river, be from the heads of the Southern branches of the Black water to the Appomatuck Indians, and thence to the Manokin Town, for the better explaining and ascertain- ing the bounds betwixt the English and Indians on the south side of James River, Beit enacted . . . Thata line from the head of the cheife or principal branch of the black water, to the upper part of the old Appamattocks Indian Town feild, and thence to the upper end of Manokin Town be judged, deemed, held and taken, to be the said bounds, and that the right honourable the lieutenant governour, with the advice of the councell bee requested to appoint some surveyor or surveyors to lay out, ascertain and plainly marke the said lines, and that all pattents or other grants of any lands laying without the said bounds be, and hereby are declared void and null to all intents and purposes as if the same had never been granted.?
In 1722 Governor Spotswood concluded a treaty with the Six Nations by which they agreed never to appear to the east of the Blue ridge nor
1Burk, History of Virginia, vol. 11, pp. 155-157, 2 Hening’s Statutes at Large, vol. 1, p. 351. $Hening’s Statutes at Large, vol. 111, p. 84.
THOMAS] MARYLAND'S POLICY TOWARD THE INDIANS 569
south of the Potomac. But this boundary line was not sufficient to arrest the westward progress of English settlement, for it was not long before hardy pioneers had located themselves west of the dividing ridge. This, as a natural consequence, angered the Indians, and col- lisions ensued.
However, on July 31, 1743, a treaty of peace was concluded at Lan- caster, Pennsylvania, between Virginia, Maryland, and Pennsylvania on the one hand and the Six Nations on the other, in which, among other agreements, was one by which these Indians, for the considera- tion of four hundred pounds, reluctantly relinquished the country lying westward from the frontier of Virginia to Ohio river.
MARYLAND
The charter granted June 20, 1632, by Charles II to Cecilius Cal- vert, Baron of Baltimore, contains no reference to the Indians. By section 18, however, full and absolute power is given to the Baron of Baltimore, his heirs and assigns, to—
. assign, alien, grant, demise or enfeoff such and proportionate parts and par- cels of the premises, to any person or persons willing to purchase the same as they shall think convenient, to have and to hold to the same person or persons willing to take or purchase the same, and his and their heirs and assigns in fee simple, or fee- tail, or for term of life, lives or years; to hold of the aforesaid now Baron of Balti- more, his heirs and assigns, by so many, such and so great services, customs and rents of this kind, as to the same now Baron of Baltimore, his heirs and assigns, shall seem fit and agreeable, and not immediately of us our heirs or successors.
The King’s right of granting lands in the province being thereby fully and completely transferred to Lord Baltimore, his heirs and assigns, without any reservation or exception in regard to the natives, gave him full authority to deal with them in his own way in reference to their title to and possession of the lands.
The policy to be pursued was made evident first by action, several years having elapsed after the first settlement before it was announced in an official manner or enacted into a law.
The first settlers under Leonard Calvert, brother of the Baron, as leader and governor, landed on the 27th of March, 1634, on the north bank of the Potomac and planted themselves in the Indian town of Yoamaco (probably Wicomoco), which they named St Mary’s. This was done, however, with the consent of and by agreement with the Indians. In order to pave the way to a peaceable admission into the country, the governor presented to the chief and principal men of the Yoamacoes “some English cloth, axes, hoes, and knives,” which they accepted with pleasure, They also agreed to leave the whole town to the English as soon as their corn was gathered, which agreement was faithfully carried out. It is supposed that this agreement was facilitated by an antici- pated attack by the Susquehanocks, whom they feared.
That this was considered a purchase is asserted by Chalmers,! who
1 Annals, p. 207.
570 INDIAN LAND CESSIONS IN THE UNITED STATES _ [erH. ayy. 18
says that Calvert ‘‘purchased the rights of the aborigines for a con- sideration which seems to have given them satisfaction .. . and lived with them on terms of perfect amity till it was interrupted by Clay- borne.” It does not appear, however, that the extent of territory was indicated or that any metes and bounds were designated.
It will perhaps not be considered out of place to insert here the some- what strong defense of Maryland’s justice and humanity in dealing with the Indians, presented by her historian, Bozman,' It is given partly because of its bearing on a question which will be alluded to in speaking of the Pennsylvania policy:
As philanthropists have been excessively clamorous in the praises of William Penn for his ostentatious purchase of the lands of the aborigines, particularly at the time of his supposed treaty with the Indians under the great elm at Shackamaxon, (so brilliantly illustrated by the pencil of his Britannic majesty’s historical painter, ) it is here thought, that the conduct of Leonard Calvert, on a similar occasion will not shrink from a comparison with that of William Penn. It will not be fully admitted, that William Penn, or any other European colonist, or even the United States at this day, can with perfect honesty and integrity purchase the lands of the aboriginal natives of America; for several reasons ;—1irst, it is not a clear proposition, that savages can, for any consideration, enter into a contract obligatory upon them, They stand by the laws of nations, when trafficking with the civilized part of man- kind, in the situation of infants, incapable of entering into contracts, especially for the sale of their country. Should this be denied, it may be then asserted, that no monarch of a nation, (that is no sachem, chief, or headmen, or assemblage of sachems, &c.) has a power to transfer by sale the country, that is, the soil, of the nation over which they rule. But neither did William Penn, make, nor has any other European since made, a purchase of lands from any tribe or nation of Indians through the agency of any others than their sachems or headmen; who certainly could have no more right to sell their country, than any European monarch has to sell theirs. But should it be contended, that savages are capable of entering into contracts, and that their sachems have a power to transfer by sale the country of the people over whom they rule, it may be safely asked,—what could William Penn, or at least what did he give, which could be considered, in any point of view, as a consideration or compen- sation to those poor ignorant aborigines for their lands? If we are to follow Mr. West’s imagination, (in his celebrated picture of ‘‘Penn’s treaty with the Indians ;”) for, history recognizes no such treaty, and the late biographer of William Penn, (Clarkson,) fairly acknowledges, that ‘‘in no historian could he find any account of it;” but from ‘‘traditions in Quaker families,” and ‘‘relations in Indian speeches,” it might be inferred, that there was such a treaty; if then, the pencil of the artist is correctly warranted by ‘‘tradition,” William Penn gave nothing more than some English broad cloth, or perhaps some beads or other trinkets, which might have been contained in the trunk displayed in the fore ground of the picture, for all the lands, on which he built his city, including also a large portion of his province; and this he seems to have been induced to do, not from his own original perception of the justice of the thing, but, as he acknowledges in his letter to the lords of the council composing the committee of Plantations, dated August 14th, 1683, “‘that he might exactly follow the bishop of London’s counsel, by buying, and not taking away, the native’s land.” (See this letter at length in Chalmers’s Annals, ch. Xx1. note 38.) Now, the presents of Leonard Calvert really seem to have been of greater value; for, besides broad cloth, history says, that he gave them “‘axes and hoes ;” thereby endeav- oring to introduce among them, as it were the first rudiments of civilization—the implements of agriculture. With this, it seems, they were as well satisfied to give
1History of Maryland (1837), vol. 11, pp. 569-79.
THOMAS) MARYLAND’S POLICY TOWARD THE INDIANS 571
up the lands of St. Mary’s, as the Indians of Shackamaxon were to give up those where Philadelphia stands.
The foregoing remarks would, perhaps, not haye been made, had they not been drawn forth by a part of a speech, which the before-mentioned biographer of Wil- liam Penn has dressed up for him, on the occasion of this celebrated treaty, entirely from ‘‘ tradition,” as he acknowledges, in which he makes him to say to the Indians ;— “that he would not do as the Marylanders did, that is, call them children or brothers only; for, often parents were apt to whip their children too severely, and brothers sometimes would differ: but he should consider them as the same flesh and blood with the Christians, and the same as if one man’s body were to be divided
;
into two parts.” By section 3 of the act of March 19, 1638,' it was decreed that—
No subject of his majesty’s the king of England, or of any other foreign prince or state shall obtain, procure, or accept of any land within this province from any foreign prince or state, or from any person whatsoever, (the natives owners of the land excepted,) other than from the lord proprietary or his heirs or some person claiming under him or them.—Neither shall he obtain, procure, or accept of any land within this province from any Indian to his own or the use of any other than of ‘the lord proprietary or his heirs, nor shall hold or possess any land within this province by virtue of such grant, upon pain that every person offending to the contrary hereof shall forfeit and lose to the lord proprietary and his heirs all such lands so accepted or held without grant of the lord proprietary or under him,”
It is probable that this law was enacted at this time because of the fact that Lord Baltimore’s title to some of the lands of the province was disputed by William Clayborne and those who claimed under hin. This claim was based upon a royal license he had obtained to trade with the Indians and an alleged purchase from the Indians (Susque- hanocks?) of the Island of Kent. As it does not appear that the Indian title to this island was subsequently purchased or extinguished by the Maryland government, the inference is that, although the lords commissioners of the plantations decided the dispute in Lord Balti- more’s favor, the purchase by Clayborne was accepted as an extinguish- ment of the Indian title. This is confirmed by the fact that in the treaty with the Susquehanocks in 1652 (mentioned below) it is expressly stated that ‘the Isle of Kent and Palmer’s Island belong to Captain Olay borne.”
On April 21, 1649, an act entitled ‘An act concerning purchasing lands from the Indians” was passed, which Bozman says was, as to principle, a law of general utility even up to his day. The substance of this law as given in Bacon’s Collection (unpaged) is as follows:
Whereas divers Persons have heretofore purchased or accepted of lands, &c. from the Indians, and made use of and possesed the same, without any lawful Title and Authority derived from the Lord Proprietary, neglecting also to take out Grants from his Lordship, under the Great Seal, for such Lands as have been due to them by virtue of his Lordship’s Conditions of Plantations, or other Warrant from his Lordship, which Proceedings are not only very great Contempts and Prejudice to his Lordship’s Dignity and Rights, but also of such dangerous Consequence, if not timely prevented, that they may hereafter bring a great Confusion in the Govern- ment and public Peace of this Province. Je it therefore Enacted ete.
'Bozman, History of Maryland (1837), vol. 11, pp. 112-113.
572 INDIAN LAND CESSIONS IN THE UNITED STATES _ [ETH. ann. 18
(1) All Purchases or Acquisitions whatsoever, of any Lands, &e. within this Province, made or to be made, from any Person whatsoever, not deriving at the same Time a lawful Title thereto, by, from, or under, his Lordship or his Heirs, under the Great Seal, shall be void and null.
(2) It shall be lawful for his Lordship to enter upon, seize, possess and dispose of, any such Lands, &c. so purchased or acquired from, any Indian or other, at his Will and Pleasure, unless such Purchaser, at the Time of such Purchase or Acquisition, have some lawful right or Title to such Lands, &e. by some Grant from his Lordship, &c. under the Great Seal.
(Confirmed among the perpetual Laws, 1676, ch. 2.)
In regard to this law the author above mentioned remarks, in addi- tion to what has been noted, that ‘The principle upon which it was founded seems to have been adopted by the United States in the dis- position of all the territories conquered or purchased by them from the Indians.”
It is worthy of notice that the lords commissioners for plantations, in the decision between Clayborne and Lord Baltimore, declared that the principle enacted in the above law held good even against the King. “Their lordships having resolved and declared as abovesaid the right and title to the Isle of Kent and other places in question to be abso- lutely belonging to the said Lord Baltimore; and that no plantation or trade with the Indians ought to be within the precincts of his patent without license from him; did therefore think fit and declare that no grant from His Majesty should pass to the said Clayborne or any others, of the said Isle of Kent or other places within the said patent.”!
On the 5th of July, 1652, a treaty was made with the Susquehanocks, the first article of which contained the following cession of land to the English:
First, that the English nation shall have, hould, and enjoy to them their heires and assigns for ever, all the land lying from Patuxent river unto Palmer’s island on the westerne side of the baye of Chesepiake, and from Choptank river to the north east branch which lyes to the northward of Elke river on the eastern side of the said bay with all the islands, rivers, creeks, . . . fish, fowle, deer, elke, and whatsoever else to the same belonging, excepting the isle of Kent and Palmer’s island which belongs to captain Clayborne, But nevertheless it shall be lawful for the aforesaid English or Indians to build a howse or ffort for trade or any such like use or occasion at any tyme upon Palmer’s island.?
Bozman thinks that Patuxent river, the southern (or southwestern) limit, on the west side of the bay, of territory assigned by this treaty, was the extent of the Susquehanock’s claim in this direction, as Pow- hatan claimed from James river to the Patuxent. It does not appear, however, how far west the granted territory extended.
As nothing appears after this date to show that other cessions were obtained from Indians in this part of the state, it was probably assumed that this grant covered all the territory on the eastern side of the bay north of Dorchester county, and on the western side all east and north
1Bozman, History of Maryland, vol. 11, pp. 584-585; Hazard, Collections, vol. 1, p. 130; Chalmers, Annals, ch. rx, note 25. 2 Bozman, ibid., p. 682.
THOMAS] MARYLAND’S POLICY ‘TOWARD THE INDIANS 573
of Patuxent river. It is also probable that it was assumed that the purchase from the Yoamacoes embraced all the territory west of Patuxent river and north of the Potomac as far westward as no other claim intervened. There is nothing on record, so far as the writer has been able to find, showing any purchase of land from the Indians, or any treaty with them in regard to any lands west of Monocacy river.
That such was the construction in reference to the latter purchase seems to be indicated by the followiny fact:
By 1651 the white population in that part of Maryland comprehend-
ing St Mary’s county and part of Charles county, had increased to such a degree as to expel most of the aborigines thereof from their lands. These Indians were driven out and foreed to find homes in the more interior portions of the province. They consisted of the follow- ing tribes: The Mattapanians, the Wicomocons, Patuxents, Lamas- consons, Highawixons, and the Chapticons, probably divisions or bands of the Piscataway or Conoy. Lord Baltimore, being informed of their distress and their willingness to form a settlement by them- selves under his protection and government, directed his lieutenant- governor to cause a grant to be made to them under his great seal ‘“‘of a certain tract of land in the head of Wicomoco river, called Chaptico ” (in Charles county), containing about 8,000 or 10,000 acres. He further ordered that the land so granted should be erected into a manor, to be called the Calverton Manor, and that a thousand acres thereof should be set apart as the demesnes thereof, to be reserved for his own use, aS was usual in his grants of other manors. He also appointed Robert Clark to be the steward of said manor— «. ., and in his name to keep court baron and court leet, as occasion should require, in and for the said manor; and on his behalf to grant, by copy or copies of court roll, copyhold estates, for one, two, or three lives, of any part of the said manor, except the demesnes thereof, to any Indian or Indians that should desire the same, and as he the said steward, with the approbation of the governor, should think fit; provided, that no one copyhold exceed fifty acres, unless it be to the Werowance or chief head of every of the said six nations respectively; and not to any of them above two hundred acres a piece; and that upon every copy so to be granted there be reserved a rent of one shilling sterling, or the value thereof, to be paid yearly to Lord Baltimore and his heirs for every fifty acres of land respec- tively to be granted as aforesaid, and so proportionally for a lesser or a greater quantity of land.” !
As the acts of the assembly contain all the subsequent history of the state relating to Indian lands of any importance in this connee- tion, and within the scope of this work, the substance of these acts is given here as found in Bacon and Kilty’s (unpaged) Collections.
The first of these, after those already given, following the date, is the act of May 8, 1669—“An act for the continuation of peace with and pro- tection of our neighbors and confederates, Indians on Choptank river.”
This act, because of the fidelity of the Choptank Indians in deliver- ing up certain murderers, etc, settles upon them and their heirs for-
1 Bozman, ibid., p. 422.
574 INDIAN LAND CESSIONS IN THE UNITED STATES _ [ETH. any. 18
ever “All that land on the south side of Choptank river, bounded westerly by the free-hold now in possession of William Darrington, and easterly with Secretary Sewall’s creek for breadth, and for length three miles into the woods. To be held of his Lordship under the yearly rent of six Beaver-skins.”
This is confirmed among the perpetual laws by the act of 1676 (ch. 2). By the act of 1721 (ch. 12) commissioners were appointed for ascertaining the bounds of these lands, and the same lands are confirmed to them by the act of 1723 (ch. 18).
The next in order of date is an act passed November 12, 1698, ‘for ascertaining the bounds of a certain tract of land set apart to the use of the Nanticoke Indians, so long as they shall occupy and live upon the same.” This act falls under the general repeal of 1704 (ch. 77), and a new act in the very same words (the enacting clause excepted) was made in 1704; and by the act of 1723 the bounds ascertained in this act (which are the same verbatim with those described in the aforesaid act of 1704, ch. 58) are confirmed.
October 3, 1704. This is the act above referred to under that of November 12, 1698. The bounds of the Nanticoke tract as set forth in it are as follows:
That all the Land, lying and being in Dorchester County, and on the North Side of Nanticoke River, butted and bounded as followeth; (beginning at the Mouth of Chickawan. Creek, and running up the said Creek, bounded therewith to the Head of the main Branch of the same, and from the Head of the said main Branch, with a Line drawn to the Head of a Branch issuing out of the North West Fork of Nanti- coke, known by the name of Francis Anderton’s Branch, and from the Head of the said Branch, down the said Anderton’s Branch, bounded therewith, to the Mouth of the same, where it falls into the said North West Fork: And from thence down the aforesaid North West Fork, bounded therewith, to the main River: And so down the main River to the Mouth of the aforesiid Chickawan Creek;) shall be confirmed and assured, and, by virtue of this Act, is confirmed and assured unto Panquash and Annotoughquan, and the People under their Government, or Charge, and their Heirs and Suecessors for ever; any Law, Usage, Custom, or Grant, to the contrary in any wise notwithstanding: To be held of the Lord Proprietary, and his Heirs, Lord Proprietary or Lords Proprietaries of this Province, under the yearly rent of one Beaver Skin, to be paid to his said Lordship and his Heirs, as other Rents in this Province by the English used to be paid.!
By an act passed November 3, 1711, commissioners were appointed to set aside 3,000 acres on Broad creek, Somerset county, where the Nanticokes were then residing, for their use so long as they should occupy the same. The rights acquired by white settlers on these lands were purchased by the province. Instead of vesting the title in the Indians, it was conveyed by this act to certain trustees for their use, with the proviso that when abandoned by these Indians it should revert to the province.
By the act of October 26, 1723, “‘for quieting the possessions of the Indians inhabiting on Nanticoke and Choptank rivers,” their right to the lands heretofore granted them was reaffirmed as follows: “That
} Bacon's Laws of Maryland, 1765, chap. 58, under October 3, 1704.
THOMAS] NEW YORK’S POLICY 'TOWARD THE INDIANS 515
the Nanticoke Indians and their descendants shall have, hold, occupy, possess, and enjoy a free, peaceable, and uninterrupted possession of all that tract or parcel of land lying between the northwest fork of Nanticoke river and Chicucone creek, for and during such space of time as they or any of them shall think fit to use, and shall not wholly and totally desert and quit claim to the same, according as the same is butted and bounded.” To the Choptank Indians, with the same pro- visions, was granted “that tract of land lying in Dorchester county, on Choptank river, according to the metes and bounds thereof” as surveyed by the commissioners. f
The act of June 22, 1768, authorized the payment of $6662 to the Nanticokes for “three certain tracts of land and also 3,000 acres lying on Broad creek, all in the county of Summerset,” which the said Indians agreed to accept as full payment therefor.
By section 4 of the act of March 12, 1786, authority was given to the governor to purchase the Indian lands in Dorchester county. As this was an important act, and specifies somewhat particularly the steps to be adopted in dealing with the Indians in this instance, a copy of the section is given here.
Sec. 4. And be it enacted, That the governor and the council be authorized and requested to appoint some fit and proper person to treat with the Indians entitled, under any act of assembly, to any lands in Dorchester County, for the purchasing the said lands, or any part thereof, on behalf of this state, and to agree with them on the terms of said purchase for a certain annual sum to be paid to the said Indians as long as any of them shall remain, and to take a deed to the state expressing the conditions, which said deed shall be acknowledged before the general court of the eastern shore, or the court of Dorchester county, in open court, at the election of the said Indians; andif such purchase be made, the person so appointed shall sell the same, at auction, for current money, in such lots or parcels as will probably bring the best price, on a credit of one third of the purchase money annually until the whole 1s paid, with interest annually on the several sums, or the governor and the council may, in their discretion, direct a sale of the said lands for state or conti- nental government securities, and eight weeks notice shall be given previous to the sale in the Maryland, Pennsylvania, Virginia and New York papers.
A similar act, providing for the purchase of a part of the lands of the Choptank Indians and for limiting their reservation, was passed January 18, 1799. The reservation was limited to one hundred acres to be laid off so as to include their settlements.
NEW YORK
The discussion of the policy of New York while a colony must of necessity begin with the Dutch settlement at the mouth of the Hud- son known as New Netherland. The exact date of the first white set- tlement of the area now embraced by New York city does not appear tobe known. Itis stated by the “‘ Report of the Board of Accounts on New Netherland,” made in 1644, that ‘‘In the years 1622 and 1623, the West India Company took possession, by virtue of their charter, of the
576 INDIAN LAND CESSIONS IN THE UNITED STATES | [etH. Any. 18
divers Colonists under the direction of Cornelis Jacobsz. Mey, and Adriaen Jorissz. Tienpoint, which Directors, in the year 1624, built Fort Orange on the North River, and Fort Nassau on the South River, and after that, in 1626, Fort Amsterdam on the Manhattes.”' However, it appears to have been subsequent to 1623 and previous to June, 1626. On November 5, 1626, Pieter J. Schagen, deputy of the West India Com- ‘pany, reported to the States general of Holland as follows: “ Yester- -day, arrived here the Ship the Arms of Amsterdam, which sailed from New Netherland, out of the River Mauritius, on the 23" September. They report that our people are in good heart and live in peace there; the Women also have borne some children there. They have purchased : the Island Manhattes from the Indians for the value of 60 guilders; tis 11,000 morgens in size. They had all their grain sowed by the middle of May, and reaped by the middle of August,” etc.2, The West India Company had instructed Peter Minuet to treat with the Indians for their hunting grounds before he took any steps toward the erection of buildings. According to Martha J. Lamb* the purchase was made the 6th of May, 1626. The price paid, it is true, was very small (but little more than one dollar for a thousand acres), yet we are told the simple natives accepted the terms with unfeigned delight. The patent issued to Kiliaen Van Rensselaer, August 13, 1630, was based on a purchase from the Indians, acknowledged before the direetor and council by them at the time it was issued:
We, the Director and Council of New Netherlands, residing on the Island Man- hatas and in Fort Amsterdam, under the anthority of their High Mightinesses the Lords States General of the United Netherlands and the Incorporated West India Company, Chamber at Amsterdam, do hereby acknowledge and declare, that on this day, the date under written, before us appeared and presented themselves in their proper persons: Kottomack, Nawanemit, Albantzeene, Sagiskwa and Kanaomack, owners and proprietors of their respective parcels of land, extending up the River, South and North, from said Fort unto a little south of Moeneminnes Castle, to the aforesaid proprietors, belonging jointly and in common, and the aforesaid Nawane- mit’s particular land called Semesseerse, lying on the East Bank opposite Castle Island off unto the abovementioned Fort; Item, from Petanock, the Millstream, away North to Negagonse, in extent about three miles,t and declared freely and advisedly for and on account of certain parcels of Cargoes, which they acknowledge to have received in their hands and power before the execution hereof, and, by vir- tue and bill of sale, to hereby transport, convey and make over to tho Mr. Kiliaen van Rensselaer, absent, and for whom We, ex ofiicio and with due stipulation, accept the same; namely: the respective parcels of land hereinbefore specified, with the timber, appendencies and dependencies thereof, together with all the action, right and jurisdiction to them the grantors conjointly or severally belonging, consti- tuting and surrogating the said Mr. Rensselaer in their stead, state and right, real and actual possession thereof, and at the same time giving him full, absolute and irrevocable power, authority and special command to hold, in quiet possession, cul- tivation, occupancy and use, tanquam actor et procurator in rem suam ae propriam, the land aforesaid, acquired by said Mr. Van Rensselaer, or those who may hereafter acquire his interest; also, to dispose of, do with and alienate it, as he or others should
! New York Colonial Documents, vol. 1, p. 149. 3 History of the City of New York, p. 53. 2Tbid., p. 37. 4Three Dutch miles equal 12 English miles.
THOMAS) NEW YORK’S POLICY TOWARD THE INDIANS 577
or might do with his other and own Lands and domains acquired by good and law- ful title, without the grantors therein retaining, reserving or holding any, the smallest part, right, action or authority whether of property, command or jurisdic- tion, but rather, hereby, desisting, retiring and renouncing therefrom forever, for the behoof aforesaid,!
In the undated “‘ New Project of Freedoms and Exemptions,”? but probably drawn up in 1629, the patroous are required by article 27 to purchase the lands from the Indians: ‘‘The Patroons of New Nether- land, shall be bound to purchase from the Lords Sachems in New Neth- erland, the soil where they propose to plant their colonies, and shall acquire such right thereunto as they will agree for with the said Sachems.” By article 33 “All private and poor |unauthorized| people (onvermogen personen) are excluded from these Exemptions Privileges and Freedoms, and are not allowed to purchase any lands or grounds from the Sachems or Indians in New Netherland, but must repair under the jurisdiction of the respective Lords Patroons.” This, how- ever, was modified in 1640 so that ‘‘In the selections of lands, those who shall have first notified and presented themselves to the Company, whether Patroons or private colonists, shall be preferred to others who may follow.”*
It would seem from these facts that the colony commenced its deal- ings with the Indians on the just policy of purchasing from them the land they wished to settle. It was the boast of one of the early gov- ernors, in his correspondence with the New England authorities, that the Dutch had not planted a colony with a desire to seize the land of the natives or grasp their territory unjustly, but that whatever land they obtained was and would be fairly and honorably purchased to the satisfaction of both parties. Nor does this boast appear to have been without justification. Their dealings with and treatment of the Indians in other respects may have been in some, possibly many, instances far from proper or honorable, yet their method of extinguishing the Indian title to lands appears, as a rule, to have been just.
In their attempts to plant colonies on the banks of Connecticut river and on Delaware bay they purchased the desired sites from the Indians.
The patroons, in their communication to the States General, refer more than once to the fact that they obtained their lands from the Indians by purchase. For example, in that of June, 1634, they say, ‘“ The Patroons proceeding on daily, notwithstanding, bought and paid for, not only the grounds belonging to the chiefs and natives of the lands in New Netherland, but also their rights of sovereignty and such others as they exercised within the limits of the Patroons’ purchased territor- ies.” And again, October 25, 1634, that they have purchased not only lands on “the said river” but likewise on ‘“‘the South river and others lying to the east of the aforesaid North river.” And again, in 1651,
'New York Colonial Documents, vol. 1, p. 44. 2 Ibid., vol. 11, pp. 96-100. 3 Tbid., p. 119.
578 INDIAN LAND CESSIONS IN THE UNITED STATES _ [eTH. ann. 18
it is asserted that ‘Immediately after obtaining the Charter, the Hon”. Directors sent divers ships to New Netherland with people and cattle, which people, being for the most part servants of the aforesaid Com- pany, purchased many and various lands; among others, on the North (alias Maurice) river, Staten island, Pavonia, Hoboocken, Nut Island and the Island of Manhattans with many other lands thereabouts. .. . A very extensive tract of country was also purchased from the Natives, being Mahikanders, 36 leagues up the North river, where Fort Orange was founded.”
It is stated by James Macauley! that—
Both the English and the Dutch on Long Island, respected the rights of the Indians, and no land was taken up by the several towns, or by individuals, until it had been fairly purchased of the chiefs, of the tribe who claimed it. The consid- eration given for the Jand was inconsiderable in value, and usually consisted of different articles of clothing, implements of hunting and fishing, domestic utensils, and personal ornaments; but appears to have been such in all cases, as was deemed satisfactory by the Indians.
The same author also remarks? that—
In the Dutch towns it seems that the lands were generally purchased by the gov- ernor, and were by him granted to individuals. In the English towns in the Dutch territory, the lands were generally purchased of the natives by the settlers, with the consent of the Dutch governor; and in the towns under the English, the lands were purchased of the natives by the settlers, originally with the consent of the agent of the Earl of Sterling; and, after his death, the purchases of the Indians were made by the people of the several towns for their common benefit.
It will be observed from this that the method of obtaining the Indian title was not uniform and systematic, nor kept as strictly under control of the chief colonial authority as it should have been. The practice of permitting individuals, or companies other than municipal authorities acting on behalf of towns, etc, to purchase lands of the natives, even with the consent of the governor or other proper officer, was calculated to, and did afterward, become the cause of much dis- content and dispute in New York.
The first action of the English on this question after coming into possession is shown by permits to purchase granted by Colonel Richard Nicolls. The following are a few examples, though the lands are not all embraced in the present bounds of the state of New York:*
License to purchase Indian Lands at the Nevesinks.
Upon the request of Wm. Goldinge, James Grover and John Browne, in behalf of themselves and their associates, I do hereby authorize them to treate and conclude with the several Sachims of the Nevisans or any others concerned, about the pur- chase of a parcel of lands lyeing and being on the maine extending from Chaw- goranissa near the mouth of the Raritans River unto Pontopecke for the doving whereof this shall be their warrant. Given under my hand at’ fort James in New
Yorke on Manhattans island this 17'" day of October 1664. R. NICOLLs,
1 History of the State of New York (1829), vol. 11, p. 260. 2 Tbid., vol. 1, p. 320. § Colonial Documents of New York, vol. x11, pp. 395 et seq.
THOMAS] NEW YORK’S POLICY TOWARD THE INDIANS 579
Upon the Petition of Philipp Pietersen Schuyler That hee may have Liberty to Purchase a certaine Parcell of Land of the Natives, lying and being near tfort Albany, as in the said Petition is exprest; I do hereby grant Liberty unto the said Philips Pietersen Schuyler so to do of which when hee shall bring a due Certificate unto nee, hee shall have a Patent for the said Lands by Authority from his Royale High- nesse the Duke of Yorke for the farther Confirmation thereof. Given under my hand at ffort James in New Yorke on Manhatans Island this 30" day of March 1665,
Ricu. NIcOLis.
Upon the peticgon of Johannes Clute and Jan Hendrick Bruyns, That they may have leave and Liberty to Purchase of the Indyans, a certaine parcell of Land lying and being on the west side of y® North River and against Clave Rack near ffort Albany, as in their Peticon is exprest and that they may likewise Plant the same, I do hereby Grant leave and Liberty unto the said Johannes Clute and Jan Hendrick Bruyns to make Purchase, thereof and to Plant it Accordingly, as is desired, of which, when they shall bring unto mee a due certificate, They shall have a patent for the said Lands by Authority from his Royall Highnesse the Duke of Yorke for their farther Confirmagon therein. Given under my hand at ffort James in New Yorke this 1*t day of April 1665.
Ricu”?, NICOLLs.
Whereas Jan Cloet, Jan Hendricksen Bruyn and Jurian Teunissen have produced before the Court of Albany the consent given to their petition, of his Honour the Goyernour of New York, to purchase from the Indians a certain parcel of land situate on the west side of the North river opposite to the Claverrack near Fort Albany.
Therefore appeared before me, the undersigned Secretary of Albany, five savages, named Sachamoes, Mawinata, also called Schermerhoorn, Keesie Wey, Papenua, Maweha, owners and proprietors of the said land, representing the other co-owners, who declared in the presence of the undersigned witnesses, that they have sold, ceded and transferred, as they herewith cede and transfer the same to the real and actual possession of and for the benefit of the aforesaid Jan Cloet and Jan Hen- dricksen Bruyn, to wit, the land called Caniskek, which stretches along the river from the land of Pieter Bronk down to the valley, lying near the point of the main land behind the Baeren Island, called Machawameck, and runs into the woods both at the North and South ends to the Katskil road. ‘Che price for it is a certain sum to be paid in merchandise, which they, the sellers, acknowledge to have received from the purchasers to their full satisfaction; they therefore renounce their former claims and declare Jan Cloet and Jan Hendricksen Bruyn to be the lawful owners of the land, promising, ete.
Thus done at Albany in the presence of Harmen Bastiansen and Hendrick Gerrit- sep, called in as witnesses, the 20t of April 1665 Old Style.
In another case Colonel Nicolls, acting as “‘ Governor under his Royall Highnesse the Duke of York,” purchased a tract of the “Sachems and people called the Sapes Indyans.”
It is perhaps proper to notice a statement by Macauley ' alluding to an earlier transaction not relating directly to the colony, which, how- ever, shows the disposition of the Dutch to purchase such lands as they wished to settle or occupy: «Between the years 1616 and 1620, about twenty persons belonging to the [Dutch East India] Company went from the fort on Dunn’s island, below Albany, to Ohnowalagantle, now Schenectady, where they entered into a compact with the Mohawks, from whom they bought some land on which they erected a trading house.” ;
1 Op. cit., p. 284.
580 INDIAN LAND CESSIONS IN THE UNITED STATES [evn. any. 18
There is but little on record by which to judge of the poliey adopted in relation to the dealings of New York with the Indians in reference to their lands, from the close of Dutch control up to the middle of the eighteenth century. A few items noticed are presented here as having some bearing upon the question.
By the instructions to the Earl of Bellomont, August 31, 1697, he is directed to call before him the Five Nations, and upon their renewing their submission to His Majesty’s government he is to assure them that he will protect them as subjects against the French King; and when an opportunity offered for purchasing ‘“ great tracts of land for His Maj‘ from the Indians for small sums,” he was to use his discretion therein as he judged for the convenience of or advantage to His Majesty. This was a clear recognition of the Indians’ possessory right and an indication of an intention not to disregard it. However, it appears that under the preceding governor (Fletcher) large grants had been made to individuals with little regard to the Indians’ rights, or unau- thorized or pretended purchases from the Indians. For example, a considerable portion of the Mohawks’ land was obtained by fraudulent and unauthorized purchases, and the grants, notwithstanding the protests of the Indians, were confirmed by Governor Fletcher.!
One of these grants was to Colonel Nicholas Bayard, a member of the council, for a tract on both sides of Schoharie creek, some 24 to 30 miles in Jength. Another to Godfrey Dellius, 70 miles in length from Battenkill, Washington county, to Vergennes, in Vermont. One to Colonel Henry Beckman, for 16 miles square in Dutchess county; and another on Hudson river, 20 miles in length by 8 in width. One to William Smith, a member of the council, on the island of Nassau, containing about 50 square miles. One to Captain Evans, 40 miles in length by 20 in width, embracing parts of Ulster, Orange, and Rockland counties, ete.
However, it should be remarked that Governor Fletcher, in his reply to the charges made against him, stated that one of the instructions received from the King was “ that when any opportunity should offer for purchasing great tracts of land for him from the Indians for small sums he was to use his diseretion therein, as he should judge for the convenience or advantage which might arise to His Majesty by the same,” and that the parties to whom the grants were made had pre- sented evidence of their purchases from the Indians. It will be observed, however, shat these purchases do not appear to have been made for or on behalf of the King, but solely for the individuals named.
On July 19, 1701, the deed presented above, under the section relating to the English policy, by the Five Nations to their “ Beaver Hunting Ground” was executed. As this has already been referred to, itis unnecessary to add anything concerning it, except to say that it
1 New York Colonial Documents, vol. Iv, pp. 345, 346.
THOMAS] NEW YORK’S POLICY TOWARD THE INDIANS 581
had no lasting effect nor formed the basis of land claims save in regard to some two or three grants made by the governor of New York under an erroneous construction. It was, in fact, a step on the part of the Troquois tribes in the effort to bring themselves more directly under the sovereignty and protection of the English and induce them to take more active measures against the French.
In regard to this effort Sir William Johnson remarks as follows:
In this Situation therefore the 5 Nations, who were at the head of a Confederacy of almost all the Northern Nations, and in whom all their interests were united, did in 1701, resolve upon a measure the most wise and prudent with regard to their own interests, and the most advantageous with regard to Ours, that could have been framed; they delineated upon paper in the most precise manner the Limits of what they called their hunting grounds, comprehending the great Lakes of Ontario and Erie, and all the cireumjacent Lands for the distance of Sixty miles around them, The sole and absolute property of this Country they desired might be secured to them.; and as a proof of perpetual Alliance, and to support Our Rights against any Claims which the French might make, founded on the vague and uncertain pretence of unlimited Grants or accidental local discovery, they declared themselves willing to yield to Great Britain, the Sovereignty and absolute dominion of it, to be secured and protected by Forts to be erected whenever it should be thought proper.
A Treaty was accordingly entered into and concluded upon these terms by Mt Nanfan then Lieut Governor of New York; and a Deed of surrender of the Lands, expressing the Terms and Conditions, executed by the Indians.
The advantages of such a concession on the part of the Indians were greater than our most sanguine hopes could have expected; and had the Judgment, Zeal and Integrity of those, whose Duty it was faithfully to execute the Conditions of the Engagement, been equal to those of him who made it, the Indians might have been forever secured in Our Interest and all disputes with France about American Terri- tory prevented; but by neglect of Government on one hand, and the enormous abuses of Individuals in the purchase of Lands on the other hand, all the solid advantages of this Treaty and concession were lost, and with them the memory even of the Transaction itself; The Indians were disobliged and disgusted, and many of them joined with the Enemy in the War which followed this Treaty, and disturbed our Settlements, whilst the French, to whom this Transaction pointed out what their plan should be, took every measure to get possession of the Country by Forts and Military Establishments; and altho’ they were compelled at the Treaty of Utrecht to acknowledge in express terms our Sovereignty over the Six Nations, yet finding We took no Steps to avail Ourselves of such a favourable declaration either by a renewal of Our Engagement with the Indians, or taking measures to support Our sovereignty by forts erected in proper parts of the Country, they ceased not to pursue that Plan, in which they had aiready made so considerable a progress, and it was not ’till the year 1725, when they had by their Establishment at Niagara, secured to themselves the possession of Lake Ontario, that We saw too late our Error in neglecting the advantages which might have been derived from the Treaty of 1701.!
As referring to the same subject, and as being confirmatory of what is said above in regard to the want of a settled policy, the following remark from the same authority is added:
The Experience We had had of the mischiefs, which followed from a want of a proper regard and attention to our engagement in 1701, increased by the danger which now threatened Our Colonies from the daily and enormous encroachments of
! Documentary History of New York, vol. u, p. 778.
582 INDIAN LAND CESSIONS IN THE UNITED STATES [e1H. ann. 18
the French, ought to have been a Lesson to Us to have been now more carefull of Our Interests, but Yet the same avidity after Possession of Indian Lands, aggravated by many other Abuses, still remain’d unchecked and uncontroll’d by any permanent Plan.!
The change of policy about the middle of the eighteenth century, by which the control of Indian affairs was brought more immediately under the English government, has been referred to in the section relating to the English policy, and need not be repeated here. One additional item, however, may be cited, as it mentions some of the special grants which were the cause of much complaint on the part of the Indians, and served to induce the government to introduce this change.
In a communication from the Lords of Trade to LuSEe: De Lancey, March 19, 1756, is the following statement:
We set lately had under our consideration the present State of Indian Affairs, and as it appears Clearly to us, that the Patents of Lands commonly called the Kayoderosseras, Conojohary and that at the Oneida carrying place, which- have been made at different times, upon pretence of purchases from the Indians, is one of the principal causes of the decline of our Interest amongst them, and that they can never be induced heartily and zealously to join in the just and necessary measures, His Majesty has been compelled to take, for the recovery of his undoubted Rights, until full satisfaction is given them with respect to these grievances, they have so long and so justly complained of; We have thought it our duty, to recommend this matter to Sir Cha* Hardy’s serious attention, and to desire he will lay it fully before the Council and Assembly to the end that proper measures may be taken for vacating and annulling these exorbitant grants, as were done upon a former occasion of the like kind in 1699.—The many difficulties which will attend the doing this by a legal proces in the Courts are so many and so great, as leave us little room to hope for success from such a measure; and we see no remedy to this great evil, but from the interposition of the Legislature by passing a Law for this purpose, which we have directed the Goy', earnestly to recommend to them, as a measure which will be for His Maj'y’s service, for their honour and Interest, and for the advantage, security and welfare of their constituents in general.”
Numerous protests against the Kayoderosseras purchase were pre- sented by the Indians, and the matter was a subject of controversy for a number of years. This is described as “ beginning at the half Moon and so up along Hudson’s river to the third Fall and thence to the Cacknawaga or Canada creek which is 4 or 5 miles above the Mohawks.” A more exact description has doubtless been published, but is not at present at hand; but it is not essential for the present purpose. The tract was a large one, and the regularity of the purchase was disputed by the Indians. However, in 1765 the patentees produced the original Indian deed, and having had the boundaries surveyed, the Indians, on receiving ‘a handsome sum of money were at length prevailed on to yeild their Claim to the Patentees.”
It was about the time of the above-mentioned communication that Governor Morris stated to the Five Nations that “he found by woeful experience that making purchases of lands was the cause of much blood being shed; he was determined, therefore, to buy no more.”
1 Documentary History of New York, vol. 11, p. 780. 2New York Colonial Documents, vol. vu, p. 78.
THOMAS] NEW YORK’S POLICY TOWARD THE INDIANS 583
In a “Review of the trade and affairs of the Indians in the north- ern district of America,” written about this period by Sir William Johnson, he remarks as follows on the subject of Indian lands:
Whilst the Indian Trade was in this State at the Posts and Frontiers, the inhabit- ants were not idle; the reduction of Canada raised the yalue.of Lands, and those who thought they had not enough (who may be presumed to amount to a very large number), now took every step & employed every low Agent, who understood a little of the Indian language to obtain Tracts for them ;—on this head I need not be par- ticular, having so oftain explained their conduct and pointed out its consequences; however their avidity in pursuit of grants, and these in the most alarming places, * the irregular steps which they took to obtain them, the removal [renewal?] of dor- mant titles, and the several greater strides, which were taken as herein before is mentioned, concerned the Indians so nearly, that a general uneasiness took place and spread itself throughout them all.!
Although Johnson speaks more than once in this review of the improper methods—“though forbade by the royal proclamation and express interposition of the Government”—to obtain grants from the Indians, yet he does not inform us how these were perfected. How- ever, as the power of granting lands to individuals remained in the governor of the state, they must have been perfected, so far as this was accomplished, through him. It is proper to add, however, that Cadwallader Colden, writing to the Lords of Trade in 1764, seems to differ somewhat from Johnson: |
As to that part of the plan, which respects the purchasing of Land from the Indians, I think it necessary to observe, that the regulations which have been estab- lished, and constantly followed in this province, for upwards of twenty years, appears to have been effectual and convenient, no complaints having been made by Indians, or others, on any purchases made by authority of this Gov" since that time. By these regulations all lands purchased of the Indians, are previously to be surveyed by the King’s surveyor General of Lands, or his Deputy, in the presence of some Indians deputed for that purpose, by the Nation from whom the purchase is made. Of late years the Deputy Surveyors are not only sworn, but give Bonds, to the Surveyor General, for the due and faithful execution of their work. By thir means the employing of persons, who have not sufficient skill, or of whose integrity one can not be so well assured, is prevented, and the Surveyor Gen! is enabled, to compleat a general Map of the Province and to locate the several grants precisely, which cannot be done, if Surveyors, not under the Direction of the Surveyor Gen- eral, be employed. The Surveyor General in this Province, makes a return of the Survey, upon every Indian purchase, into the Secretaries Office.”
This relates apparently to the officially authorized purchases, and not to those which Johnson alludes to as obtained by fraud. However, as the evidence shows, aud as a remedy was applied, it is presumable that Jolnson’s statement is correct.
A close of this ill-advised and unfortunate course was at last at hand. Orders, proclamations, and instructions, as already shown, had been promulgated by the English government for the purpose of remedying this, but a practical and satisfactory method of solution was not reached until1765. It was then proposed that a fixed and well-defined
1New York Colonial Documents, vol. vu, p. 961. 2Tbid., p. 670. 18 ETH, PT 2 5)
584 INDIAN LAND CESSIONS IN THE UNITED STATES _ [etTH. any. 18
boundary or dividing line between the whites and the Indians should be marked out, and that the whites should be absolutely prohibited from settling beyond it under any pretense. This agreement was perfected at the treaty of Fort Stanwix in 1768. The line agreed upon at this treaty with the Six Nations was as follows:
We the said Indians Have for us and our Heirs and Successors granted bargained sold released and confirmed and hy these presents do Grant bargain sell release and confirm unto our said Sovereign Lord King George the third, All that Tract of Land situate in North America at the Back of the British Settlements bounded by a Line which we have now agreed upon and do hereby establish as the Boundary between us and the British Colonies in America beginning at the Mouth of Cherokee or Hogohege River where it emptys into the River Ohio and running from thence upwards along the South side of said River to Kittaning which is above Fort Pitt from thence by a direct Line to the nearest Fork of the west branch of Susquehanna thence through the Allegany Mountains along the South side of the said West Branch untill it comes opposite to the mouth of a Creek callek (sic) Tiadaghton thence across the West Branch and along the South Side of that Creek and along the North Side of Burnetts Hills to a Creek called Awandie thence down the same to the East Branch of Susquehanna and across the same and up the East side of that River to Oswegy from thence East to Delawar River and up that River to opposite where Tianaderha falls into Susquehanna thence to Tianaderha and up the West side of its West Branch to the head thereof and thence by a direct Line to Canada Creek where it emptys into the wood Creek at the West of the Carrying Place beyond Fort Stanwix and extending Eastward from every part of the said Line as far as the Lands formerly purchased so as to comprehend the whole of the Lands between the said Line and the purchased Lands or settlements, except what is within the Prov- ince of Pensilvania.!
But it was provided “that the lands occupied by the Mohocks around their villages, as well as by any other nation affected by this cession, may effectually remain to them and to their posterity.”
As the Indian titles subsequent to this date were obtained by treaties on the part of the state government or the United States, it is unneces- sary to allude to them, especially as most of them are mentioned by Mr Royce in the Schedule. The policy pursued by the United States had now been fully adopted, and the Indian titles, with some minor reserves, were finally extinguished in accordance therewith.
This policy was incorporated in the state constitution of 1777, as shown by the following clause:
And whereas, it is of great importance to the safety of this State, that peace and amity with the Indians within the same be at all times supported and maintained: And whereas, the frauds too often practised towards the said Indians, in contracts made for their lands, have in divers instances, been productive of dangerous dis- contents and animosities:
Be it ordained, That no purchase or contracts for the sale of lands made since the fourteenth day of October, in the year of our Lord, one thousand seven hundred and seventy-five, or which may hereafter be made with any of the said Indians, within the limits of this State, shall be binding on the said Indians, or deemed valid, unless made under the authority, and with the consent, of the Legislature of this State.2
1 New York Colonial Documents, vol. v1, p. 136, 2Laws of Colonial and State Governments in Regard to Indian Affairs, 1832, p. 61.
THOMAS] NEW YORK’S POLICY TOWARD THE INDIANS 585
It will be observed that the state acknowledged, in the most solemn manner possible, the frauds practiced on the Indians in regard to their lands.
Numerous acts were subsequently passed by the legislature in regard to Indian lands, but one only of these, which is general in its scope, is here noticed. This act, which was passed in 1788, is as follows:
AN ACT to punish infractions of that article of the Constitution of this State, prohibiting pur- chases of lands from the Indians, without the authority and consent of the Legislature, and more effectually to provide against intrusions on the unappropriated lands of this State.
Whereas, by the thirty-seventh section of the Constitution of this State, reciting that it is of great importance to the safety of this State, that peace and amity with the Indians within the same be at all times supported and maintained; and that the frauds too often practiced