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Colonial Policy Towards the Indians

 Native American Nations | Indian Land Cessions in the United States                   

The Policy in General

In treating of the policy and methods adopted by the different colonies in their dealings with the Indians in regard to their lands, one object constantly kept in view 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, therefore, to some of the more important purchases, cessions, grants, etc, 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 historians 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 triplicate, 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 individuals 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 lawsuits 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 others for a 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 Indians: "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."1

Burk,2 speaking of the London Company and the nature of its government, 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. In some cases the colonists claimed by the right of conquest, and the imaginary title conferred y the king's charter. In general however, they acted on better principles, and 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 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 dissolution 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,3 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 Manakin; that he [Powhatan] should resign to them the fort and the houses; with all that country, for a proportion of copper," etc. 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 Abundance. 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 further 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 Opechancauougb, 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 concluded with the Indians in 1636, fixing their boundary line, but no particulars 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.l However, it seems that at some time between 1640 and 1642 peace was concluded through the general assembly. In this case, according to Burk, it was made separately with the heads of the tribes and in a spirit of humanity. It was attained "by mutual capitulations 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:4

Act. l. Art. 2. That it 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 y 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 Koquotan, to the English to inhabitt on, and that neither he the said Necotowance nor any Indians do repaire to or make any abode upon the said tract of land, upon 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 Opechaneanough, 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 force as formerly, Provided he lives on the same; but if lie leaves it then to devolve to Coll. William Clayborne, according to former orders which gave him libertie to make his choice, whether he would have 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 Hockaday 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 upon the land of Pamunkey or Chickahominy Indians be removed according to a late act of Assembly made to that purpose, And Coll. John Fludd to go to Tottopottomoy to examine the proceedings of business and to deliver it upon his oath.5

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 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.6

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 future, for this will putt vs to a continual) necessity of allotting them new lands and possessions and they will be always in fears of what they hold not being able to distinguish between our desires to buy or inforcement to have, 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.7

The following acts of the same general tenor are extracted from Hening's Statutes, and need no comment:

[March 13th, 1657-8. Act. 51. Enacted:] That there be no grants of land to any Englishman whatsoever (de future) until the Indians be first served with the proportion of fifty acres of land for each bowman; and the proportion for each perticular 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 unfenced 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 allready granted for land at Rappahannock 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.8

[Act 73, same assembly:] All the Indians of this colony shall and may hold and keep those seates of land which they now have, and that no person or persons whatsoever be suffered to entrench or plant upon such places as the said Indians claime or desire until full leave from the Governor and Council or commanders for the place; Yet this act not to be extended to prejudice those English which are now seated with the Indiana' former consent unless upon 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 untaken up, 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 he 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 towns and James river, and no 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 upon the Indians' lands to their discontent without express order for the same.9

The act of March 13, 1658, same assembly, ratifies the grant of the "Wiceacomoco Indians" of certain lands belonging to them in Northumberland county to the "honorable Samuel Mathewes," governor.

The act of October 11, 1660, authorizes the governor to have surveyed 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 Chickabomini 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 unless the major part of the great men shall freely and voluntarily declare their consent in the quarter court or assembly.

Whereas a certain grant hath been made to the Chickahomini Indians of certain lands in which tract Major General Manwaring Hamond claimeth a devident of 2,000 acres granted him by pattent, It is ordered, that the same Major General Hamond be desired to purchase the same of the Indians or to procure their consent for the preservation of the countries honor and reputation.10

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 13. Whereas the mutual discontents, complaints, jealousies and fears of English and Indians proceed chiefly from the violent intrusions of diverse English made into their lands, The governor, counsel and burgesses enact, ordain and confirm that for the future no Indian king or other shall upon any pretence alien and sell, nor no English for any cause or consideration whatsoever purchase or buy any tract or parcel of land now justly clammed or actually possest by any Indian or Indians whatsoever; all such bargains and sales hereafter made or pretended to be made being hereby declared to be invalid, void and null, any acknowledgement, surrender, law or custom formerly used to the contrary notwithstanding.11

This is probably the act referred to by Charles Campbell12 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; preventing 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 fruits of the country; prohibiting trade with them without license, or imprisonment 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 imprisonment, 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.

By the act of October 10, 1665, the bounds of the Indians on the south side of James river were fixed as follows: CL From the beads 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 products 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."13 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 public 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 patents to any particular 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 public towards defraying the charge of this warr. Provided always that this act nor any. thing therein contained shall prejudice any legal grants heretofore made to any person or persons whatsoever of any part or parcel of the said lands, and all such. Indian lands as have bin pattented since the peace aforesaid, and before such desertion shall be held and deemed to be illegally pattented.14

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 y 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 ascertaining the bounds betwixt the English and Indians on the south side of James River, Be it enacted. That a line from the head of the chief or principal branch of the black water, to the upper part of the old Appamattocks Indian Town field, and thence to the upper end of Manokin Town be judged, deemed; held and taken, to be the said bounds, and that the right honorable the lieutenant Governour, with the advice of the council bee requested to appoint some surveyor or surveyors to lay out, ascertain and plainly mark the said lines, and that all patents 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.15

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 or 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 collisions ensued.

However, on July 31, 1743, a treaty of peace was concluded at Lancaster, 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 consideration of four hundred pounds, reluctantly relinquished the country lying westward from the frontier of Virginia to Ohio river.


1 E. D. Neill, History of the London Virginia Company, p. 8; Smith's Works, Arbor's edition, The English Scholar's Library, No. 16, p. xxxv.
2 History of Virginia (1804), vol., I, p. 312, appendix.
3 History of Virginia, Sabin's reprint, pp. 53-54.
4 Burk, History of Virginia, vol. m, p. 53.
5 Hening's statutes at Large, vol. 1 (1533), pp. 323-324.
6 Ibid., p. 380.
7 Burk, History of Virginia, vol, n, p. 102.
8 Ibid., p. 456-457.
9 Hening's statutes at Large, vol. I, p. 396.
10 Ibid., p. 467.
11 Hening's Statutes at Large, vol. n, p. 34. 2 Ibid., p. 138.
12 History of the Colony and Ancient Dominion of Virginia (1847), p. 77
13 Burk, History of Virginia, vol. u, pp. 155-157.
14 Hening's statutes at Large, vol. n, p. 351.
15 Hening's Statutes at Large, vol, in, p. 84.


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First annual Report of the Bureau of Ethnology, 1879-80

Indian Land Cessions in the United States

 

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