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Nature of the Indian Title to Lands

 Native American Nations | Indian Land Cessions in the United States                    

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. Nevertheless, 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 Congress.1

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 pour 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 whereas it is essential to the welfare of the United States, as well as necessary for the maintenance of harmony 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 f them, should be removed and prevented; therefore, the United States in Congress assembled, 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 purchasing 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, entitled "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 y 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 y 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 presence, 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

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 Louisiana 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, ou 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 tranquility with the Indian tribes who reside within the limits of Louisiana, as ceded y 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 y this act; and the sum of fifteen thousand dollars, of any money in the Treasury, not otherwise appropriated y law, is hereby appropriated, to enable the President of the United States to effect the object expressed in this section.3

As this law was not to take effect until October 1, 1804, it was provided 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 articles 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 lands, 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 occupancy 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.

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 understood 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 single instance occurs to the writer at present where land was taken possession 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 necessary 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 government 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 Government 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 distinct peoples or nations and treating with them as such is a "legal fiction." Nevertheless, if we study carefully all the circumstances which surround 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 straggles 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 broadened, restricted, or varied in accordance with new and imperative necessities which arise.

It is doubtless true that the recognition of the Indian tribes as distinct 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 hest 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 lands of the natives under their care and protection. Bozman;4 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 y 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 considered 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 properly 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 perhaps 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 oar 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 Quincy 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 possession itself stands, with regard to the greatest part of the country, upon a questionable foundation. Their cultivated fields, their constructed habitations, a space of ample sufficiency for their subsistence, and whatever they had annexed to themselves by personal labor, was undoubtedly y the laws of nature theirs. But what is the right of a huntsman to the forest of a thousand miles over which he has accidentally ranged in quest of prey? Shall the liberal bounties of Providence to the race of man be monopolized y one of ten thousand for whom they were created? Shall the exuberant bosom of the common mother, amply adequate to the nourishment of millions, be claimed exclusively y a few hundreds of her offspring? Shall the lordly savage not only disdain the virtues and enjoyments of civilization himself, 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 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 comparisons are here introduced. These are simple comparisons between the Indian population and the extent of territory claimed by them.

1 Old Journals, vol. iv (1783), p. 275, as copied in " Laws, etc., respecting the Public Lands," Washington, Gales & Seaton, 1828; pp. 338-339.
2 op. cit , pp. 414-415.
3 Op. cit, p.500
4 History of Maryland, p 509

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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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