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Estimate of Indian Population of the United States

 Native American Nations | Indian Land Cessions in the United States                   

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.1 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 253,464
1837 Report of Superintendent of Indian Affairs 302,498
1850 Report of H.R. Schooleraft 388,229
1853 Report of United States Census, 1850 400,764
1855 Report of Indian Office 314,622
1857 Report of II. R.Schoolcraft 379,264
1860 Report of Indian Office 254,300
1865 Report of Indian Office 294,574
1870 Report of United States Census 313,712
1870 Report of Indian Office 313,371
1875 Report of Indian Office 305,068
1876 Report of Indian Office 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 miles, this would give to each Indian family a manor of 48 square miles, or 30,720 acres. Now, supposing, for further illustration, that the families were distributed uniformly over the whole territory, 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 state of Delaware would be allotted to but 43, and the whole state of New York, which 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 population whose territorial needs would be amply supplied by the area embraced in the single state of Illinois 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 maintained 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 adoption of the constitution. By so doing the policy adopted by the colonies can be connected with that of the United States without being interrupted by reference to that of other governments.

The Spanish Policy
Although the cruelty of the Spaniards in their treatment of the Indians during the conquest of Mexico and Central America is proverbial, 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 constituting 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 Spaniards 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 Herrera2 that he not only abrogated the enslavement of any Indians whatsoever, but also took care 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 means," adds the old historian, "the Country was much improv'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 recognized. 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:3

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 Christian police among, the natives of those Provinces, without prejudice to established usages among them, or to their good and wholesome customs and statutes.-Lib. II, tit. 1, law 4, vol.

It being our wish that the Indians be protected and well treated, and that they be not molested nor injured in their person or property; We command that in all cases, and on all occasions, when it shall be proposed to institute an inquiry, whether any injury is to accrue 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 there from.-Lib. II, tit. 18, law 36, vol. I, p. 412.

Whereas some grazing farms, owned y Spaniards for the use of their cattle, have been productive of injury to the Indians, y 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 there from to the Indians or their property; and, if so, that, after due notice to the parties interested, they forthwith, and by summary 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. II, 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, y which they are to be saved; to preserve friendship with them, and 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 y mild means, through the interference of religion and priests, and of other persons appointed by the Governor, y means of interpreters, and y endeavoring y 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. II, 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. II, 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 Audioncias, to be summoned 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 y 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 y 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 [eneomiendas de Indios].-Lib. IV, tit. 12, law 16, vol. II, 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 front Indians, in violation of our royal letters and ordinances, and which shall be held upon illegal titles: it being our will that the Attorneys-Protectors should proceed according to right and justice, as required y letters and 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 can in no case 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. II, 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, tit. 12, law 19, vol. II, p. 44.

Whereas the Indians would sooner and more willingly be reduced into settlements, 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 alteration 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. II, 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, gentleness, and moderation, with verbal and not judicial proceedings, in the case 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 cultivate, 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 pleasure. Lib. IV, tit. 12, law 14, vol. II, p. 42.

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 intervention of the King's Attorney for the Board of Finances, 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 redeemable quitrent, 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 having been previously received that they are vacant; and, to avoid injurious mistakes, we premise that, beside the signature of the Commandant or Syndic of the District, this information ought to be joined y 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 Syndic, Surveyor, and the neighbors, who have signed the information, shall indemnify him for the losses he has suffered.4

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 limits; 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 distinctly 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, however, was done usually by granting them other lands. Grantees' were usually the purchasers of the Indian title where it was deemed necessary that this should be extinguished.

The foregoing laws and ordinances applying generally to the Spanish possessions known as "New Spain" were, of course, equally applicable to Louisiana and Florida and other portions of territory acquired 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 intendency of Cuba, there were some differences in the local administration of the laws and in the customs adopted in dealing with the Indians.

1 Ibid. for 1877
2 Historia General. dec. III bk. 7, chap 3 (Steven's translation)
3 From Laws, U.S. Treaties. etc. Respecting Public Lands Vol II, 1836
4 Laws Relating to Public Lands, 1928, pp 984-985

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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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