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Commissions were Authorized by Congress

 Native American Nations | Indian Land Cessions in the United States                   

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 interested 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 Jose de Estrada, governor pro tempore of Florida (July 29, 1811).1 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 planting a colony, he remarks:

But the greatest objection to the project of Don Cristoval Gios [who proposed planting a colony] remains 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 preservation 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 purchase, or by a solemn treaty made with the Chiefs. The Anglo-Americans follow this same rule with the Indians were under their dominion, and it is certain that the same rule has been religiously observed in the two Florida's, no white man being permitted to purchase land from the Indians without the intervention of the Government to prevent frauds, and prohibiting strictly that any person should establish himself in the territory known as theirs.

He further adds:

In virtue of this, I am of opinion 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.

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 distinction between Indians who had partaken of the rite of baptism and other Indians. The former appear to have been considered capable of holding and enjoying lands in as full and complete a manner as any other subjects of the Crown of 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 purchases 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 Louisiana, except O'Reilly, y which the Indians, inhabiting lands in the province, were limited in their possessions to one league square about their villages, but this regulation has not been adhered to y 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 commandant uniformly made the conveyance according to the limits pointed out y 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 y the Government against all the world, and has always passed from one generation to another so long as it was possessed y 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 permission of the Government, and so on, as often as such permission was obtained, and 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 of 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 Louisiana, it might be replied, that the evidence is to he found in the various acts of the Spanish Government, in relation to the Indians, evincing that the Government recognized no title in them, independently of that derived from the crown, a mere right of occupancy at the will of the Government; 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 Laypardi and why was it not necessary to have such sanction of the sales made by other subjects of the Spanish Government? The force and effect of prescription, in abolishing the Indian title to lands in Louisiana, is further established y 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 ratification of the Government.2

1 Laws etc., Relating to Public Lands, vol. II (1836), appendix, pp. 233-234.
2 Ibid., p 224


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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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