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In attempting to determine from history and the records the
British policy in dealing with the Indians in regard to their
possessory rights, the investigator is somewhat surprised to find
(except so far as they relate to the Dominion of Canada and .near
the close of the government 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 it 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
granting away 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
colonization twenty years before was well known, and the history of
the discovery 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 called "Great Patent of New England," granted "absolutely" to
the "said council called the council established at Plymouth, etc.,"
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 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
evident 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 treatment. 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 Faster 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 purchase or
other proper means consistent with national honor.
Soon after Charles II ascended the throne he sent (1664)
commissioners 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 Massachusetts, 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.
A "Deed from the Five Nations to the King, of their Beaver Hunting
Ground," made at Albany, New York: July 19, 1701. This, which is
somewhat peculiar, is as follows:1
| To all Christian &
Indian people in this parts of the world and in Europe
over the great salt waters, to whom the presents shall
come Wee the Sachims Chief men, Captains and
representatives of the Five nations or Cantons of
Indians called the Maquase Onoydes Onnandages and
Sinnekes living in the Government of New York in
America, to the north west of Albany on this side the
Lake Cadarachquli sendeth greeting, Bee it known unto
you that our ancestors to our certain knowledge have
had, time out of mind a fierce and bloody warr with
leaven nations of Indians called the Aragaritkas2
whose Chief command was called successively Chobahise.
The land is scituate lyeing and being northwest and y
west from Albany beginning on the south west3
side of Cadarachqui lake and includes all that waste
Tract of Land lyeing between the great lake off Ottowawa4
and the lake called y the natives Sahiquage and by the
Christians the lake of Swegej5
and runns till it butts upon the Twicbtwichs and is
bounded on the right hand by a place called Quadoges6
conteigning in length about eight hundred miles and in
bredth four hundred miles including the country where
the bevers the deer, Elk 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 predecessors did four score years ague
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 caused 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 leaven 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
scoured by the French of Canada, and whereas the
Governour of Canada aforesaid hath lately sent a
considerable force to a place called Tjeugbsaghronde the
principall passé 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 manor of wild beasts in such
quantities that there is no manor of trouble in killing
of them and also will be sole masters of the Boar7
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 Captains and
representatives of the Five nations after mature
deliberation out of a deep sense of the many Royall
favors extended to us y the present great Monarch of
England King William 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 settle Albany
on this river which covenant chain hath been yearly
renewed and kept bright and clear by all the Governours
successively and many neighboring Governments, 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 moveing 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 y 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 Caniqnage and by the
Christians the lake of Swege and runes till it butts
upon the Twichtwichs and is bounded on the westward by
the Twichtwichs by a place called Quadoge containing in
length about eight hundred miles and in breath four
hundred miles including the Country where Beavers 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 called the Aragaritka whom y a
fair warr wee subdued and drove from thence four score
years ague bringing many of them captives to our country
and soe became to be the true owners of the same y
conquest which said land is Scituate lyeing and being as
is above expressed with the whole Boyle 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 persons for its 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
bunting 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 use the said Sachims of the
Five Nations of Indians called the Maquase, Oneydes,
Onnandages, Cayouges and Sinnekes and our heires the
said tract of laud or Colony, lakes and rivers and
premises and every part and parcel] thereof with their
and every of their appurtenances unto our souveraigne
Lord the King William the third & his heires and
successors Dings of England to his and their proper use
and uses against us our heires and all and every other
person lawfully claming by from or under its 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 Honorable John Naufan Esquire Lieutenant
Governor 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 Carachkon our dread
souveraigne Lord and that he would be graciously pleased
to accept of thy, same Actual in Albany in the middle of
the high street this nineteenth day of July in the
thirteenth year of His Majty" 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:8
| 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 Sinnekes Cayouges & Onnondages) Ratify
Confirme Submit and Grant unto Our Most Sovereign Lord
George y 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
all so of our own Accord free and Voluntary will Give
Render Submit and Grant and by these presents do for our
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 called 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 Cayhunghage Belonging to the Onnondages all 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
Annoq" 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 Couno
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 there from.9
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 tho
reluctantly to take up the Hatchet against us and
desolate the Settlement on the Frontiers but encouraged
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 y
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
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 Amherst 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 frequently 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
direction of their affairs and that no steps should be taken with
them without 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, 17617 the Lords of Trade submitted to the King a
draft of instructions to the governors of the colonies, which were
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 Continent of North America does
greatly depend upon the Amity and Alliance of the
several Nations or Tribes of Indiana bordering upon the
said Colonies and upon a just and faithfull Observance
of those Treaties and Compacts which have been
heretofore solemnly entered into with the said Indians y
Our Royall Predecessors Dings & Queens of this Realm.
And whereas notwithstanding the repeated Instructions
which have been from time to time given by Our Royal
Grandfather to the Governors of Our several Colonies
upon this bead 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 y
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
dome of Our Governors or other Chief Officers of Our
said Colonies regardless of the Duty they owe to Us and
of the Welfare and Security of our Colonies have
countenanced such unjust claims and pretensions y
passing Grants of the Lands so pretended to have been
purchased of the Indians We there for 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 Colony of do province 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 y
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
willfully or inadvertently have seated themselves on any
Lands so reserved to or claimed y the said Indians
without any lawfull Authority for so doing forthwith to
remove there from and in case you shall find upon strict
enquiry to be made for that purpose that any person or
persons do claim to hold or possess any lands within Our
said Province "upon pretence of purchases made of the
said Indians without a proper license 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 have made such
fraudulent purchases to the end that the land may be
recovered y 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 y Our Royal Predecessors for restraining
persons from purchasing lands of the Indians without a
License 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
license to purchase lands of the Indians you do forbear
to grant such license untill you shall have first
transmitted to Us y 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
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 Public not only
within all parts of your said inhabited by Our Subjects,
but also amongst the several Tribes of Indians living
within the same to the end that Our Royal Will and
Pleasure in the Premises may be known and that the
Indians may be apprized of Our determined Resolution to
support them in their just Rights, and inviolably to
observe Our Engagements with them.10 |
1 New York Colonial Documents, vol. IV, p. 909
2 Huron.
3 Northwest. See next page, line 12.
4 Lake Huron.
5 Lake Erie.
6 At the head of 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,
80, Dublin, 1766.
7 Sic. Query-Bearer
8 New York Colonial Documents, vol. v, p 800
9 Colonial documents, number five, vol. vu, p. 473.
10 New York Colonial Documents, vol. VIII,
pp478-479
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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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