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New York Indian Land Cessions

 Native American Nations | Indian Land Cessions in the United States                    

The discussion of the policy of New York while a colony must of necessity begin with the Dutch settlement at the mouth of the Hudson known as New Netherland. The exact date of the first white settlement of the area now embraced by New York city does not appear to be known. It is stated by the "Report of the Board of Accounts on New Netherland," made in 1644, that "In the years 1622 and 1623, the Pest India Company took possession, by virtue of their charter, of the said country, and conveyed thither, in their ship, the New Netherland, divers Colonists under the direction of Cornelis Jacobsz. Mey, and Adriaen Jorissz. Tienpoint, which Directors, in the year 1624, built Fort Orange on the North River, and Fort Nassau on the South River, and after that, in 1626, Fort Amsterdam on the Manhattes."1 However, it appears to have been subsequent to 1623 and previous to June, 1626.

On November 5,1626, Pieter J. Schagen, deputy of the West India Com pany, reported to the States general of Holland as follows: "Yesterday, arrived here the Ship the Arms of Amsterdam, which sailed from New Netherland, out of the River Mauritius, on the 23rd September. They report that our people are in good heart and live in peace there; the Women also have borne some children there. They have purchased the Island Manbattes from the Indians for the value of 60 guilders; 'tis 11,000 morgens in size. They had all their grain sowed by the middle of May, and reaped by the middle of August;" etc.2 The West India Company had instructed Peter Minuet to treat with the Indians for their hunting grounds before he took any steps toward the erection of buildings. According to Martha J. Lamb3 the purchase was made the 6th of May, 1626. The price paid, it is true, was very small (but little more than one dollar for a thousand acres), yet we are told the simple natives accepted the terms with unfeigned, delight.

.The patent issued to Kiliaen Van Rensselaer, August 13, 1630, was based on a purchase from the Indians, acknowledged before the director and council by them at the time it was issued:

We, the Director and Council of New, Netherlands, residing on the Island Manhatas and in Fort Amsterdam, under the authority of their High Mightinesses the Lords States General of the United Netherlands and the Incorporated West India Company, Chamber at Amsterdam, do hereby acknowledge and declare, that on this day, the date under written, before us appeared and presented themselves in their proper persons: Kottomack, Nawanemit, Albautzeene, Sagiskwa and Kanaomack, owners and proprietors of their respective parcels of land, extending up the River, South and North, from said Fort unto a little south of Moeneminnes Castle, to the aforesaid proprietors, belonging jointly and in common, and the aforesaid Nawanemit's particular land called Semesseerse, lying on the East Bank opposite Castle Island off unto the above mentioned Fort; Item, from Petanock, the Millstream, away North to Negagonse, in extent about three miles,4 and declared freely and advisedly for and on account of certain parcels of Cargoes, which they acknowledge to have received in their hands and power before the execution hereof, and, by virtue and bill of sale, to hereby transport, convey and make over to the Mr. Kiliaen van Rensselaer, absent, and for whom We, ex officio and with due stipulation, accept the same; namely: the respective parcels of land here in before specified, with the timber, appendences and dependencies thereof, together with all the action, right and jurisdiction to them the grantors conjointly or severally belonging, constituting and surrogating the said Mr. Rensselaer in their stead, state and right, real and actual possession thereof, and at the same time giving him full, absolute and irrevocable power, authority and special command to hold, in quiet possession, cultivation, occupancy and use, tanquam actor et procurator in rem suam ac propriam, the land aforesaid, acquired y said Mr. Van Rensselaer, or those who may hereafter acquire his interest; also, to dispose of, do with and alienate it, as he or others should or might do with his other and own Lands and domains acquired by good and lawful title, without the grantors therein retaining, reserving or holding any, the smallest part, right, action or authority whether of property, command or ,jurisdiction, but rather, hereby, desisting, retiring and renouncing there from forever, for the behoof aforesaid.5

In the undated "New Project of Freedoms and Exemptions,"6 but probably drawn up in 1629, the patrons are required by article 27 to purchase the lands from the Indians: "The Patrons of New Netherland, shall be bound to purchase from the Lords Sachems in New Netherland, the soil where they propose to plant their colonies, and shall acquire such right thereunto as they will agree for with the said Sachems." By article 33 "All private and poor [unauthorized] people (onvermogen personen) are excluded from these Exemptions Privileges and Freedoms, and are not allowed to purchase any lands or grounds from the Sachems or Indians in New Netherland, but must repair under the jurisdiction of the respective Lords Patrons."' This, however, was modified in 1640 so that "In the selections of lands, those who shall have first notified and presented themselves to the Company, whether Patrons or private colonists, shall be preferred to others who may follow."6

It would seem from these facts that the colony commenced its dealings with the Indians on the just policy of purchasing from them the land they wished to settle. It was the boast of one of the early governors, in his correspondence with the New England authorities, that the Dutch had not planted a colony with a desire to seize the land of the natives or grasp their territory unjustly, but that whatever land they obtained was and would be fairly and honorably purchased to the satisfaction of both parties. Nor does this boast appear to have been without justification. Their dealings with and treatment of the Indians in other respects may have been in some, possibly many, instances far from proper or honorable, yet their method of extinguishing the Indian title to lands appears, as a rule, to have been just.

In their attempts to plant colonies on the banks of Connecticut river and on Delaware bay they purchased the desired sites from the Indians.

The patrons, in their communication to the States General, refer more than once to the fact that they obtained their lands from the Indians by purchase. For example, in that of June, 1634, they say, 1, The Patrons proceeding on daily, notwithstanding, bought and paid for, not only the grounds belonging to the chiefs and natives of the lands in New Netherland, but also their rights of sovereignty and such others as they exercised within the limits of the Patrons' purchased territories.' And again, October 25,1634, that they have purchased not only lands on "the said river" but likewise on "the South river and others lying to the east of the aforesaid North river." And again, in 1651, it is asserted that "Immediately after obtaining the Charter, the Honorable. Directors sent divers ships to New. Netherland with people and cattle, which people, being for the most part servants of the aforesaid Company, purchased many and various lands; among others, on the North (alias Maurice) river, Staten island, Pavonia, Hoboocken, Nut Island and the Island of Manhattans with many other lands thereabouts... . A very extensive tract of country was also purchased from the Natives, being Mahikanders, 36 leagues up the North river, where Fort Orange was founded."

It is started by James Macauley7 that
Both the English and the Dutch on Long Island, respected the rights of the Indians, and no land was taken up y the several towns, or y individuals, until it had been fairly purchased of the chiefs, of the tribe who claimed it. The consideration given for the laud was inconsiderable in value, and usually consisted of different articles of clothing, implements of hunting and fishing, domestic utensils, and personal ornaments; but appears to have been such in all cases, as was deemed satisfactory y the Indians.

The same author also remarks8 that

In the Dutch towns it seems that the lands were generally purchased y the governor, and were y him granted to individuals. In the English towns in the Dutch territory, the lands were generally purchased of the natives y the settlers, 'With the consent of the Dutch governor; and in the towns under the English, the lands were purchased of the natives by the settlers, originally with the consent of the agent of the Earl of Sterling; and, after his death, the purchases of the Indians were made y the people of the several towns for their common benefit.

It will be observed from this that the method of obtaining the Indian title was not uniform and systematic, nor kept as strictly under control of the chief colonial authority as it should have been. The practice of permitting individuals, or companies other than municipal authorities acting on behalf of towns, etc, to purchase lands of the natives, even with the consent of the governor or other proper officer, was calculated to, and did afterward, become the cause of much discontent and dispute in New York.

The first action of the English on this question after coming into possession is shown by permits to purchase granted by Colonel Richard Nicolls. The following are a few examples, though the lands are not all embraced in the present bounds of the state of New York:9

License to purchase Indian Lands at the Nevesinks

Upon the request of Wm. Goldinge, James Grover and John Browne, in behalf of themselves and their associates, I, do hereby authorize them to treate and conclude with the several Sachims of the Nevisans or any others concerned, about the purchase of a parcel of lands lyeing and being on the maine extending from Chawgoranissa near the month of the Raritans River unto Pontopecke for the doeing whereof this shall be their warrant. Given under my hand at fort James in New Yorke on Manhattans island this 17th day of October 1664.
R. NICOLLS

 

Upon the petition of Philipp Pietersen Schuyler That he may have liberty to Purchase a certain Parcel of Land of the Natives, lying and being near Fort Albany, as in the said Petition is esprest; I do hereby grant Liberty unto the said Philips Pietersen Schuyler so to do of which when hee shall bring a due Certificate unto nice, hee shall have a Patent for the said Lauds by Authority from his Royale Highnesses the Duke of Yorke for the farther Confirmation thereof. Given under my hand at Fort James in New Yorke on Manhatans Island this 3011, day of March 1665.
RiCH. NICOLLS.

 

Upon the petition of Johannes Clute and Jan Hendricksen Bruyns, That they may have leave and Liberty to Purchase of the Indians, a certain parcel of Land lying and being on the west side of ye North River and against Clave Rack near Fort Albany, as in their Peticon is esprest and that they may likewise Plant the same, I do hereby Grant leave and Liberty unto the said Johannes Clute and Jan Hendricksen Bruyns to make Purchase, thereof and to Plant it Accordingly, as is desired, of which, when they shall bring unto me a due certificate, They shall have a patent for the said Lands by Authority from his Royall Highnesses the Duke of Yorke for their farther Confirmation therein. Given under my hand at Fort James in New Yorke this 111 day of April 1665.
RICH". NICOLLS

 

Whereas. Jan Cloet, Jan Hendrickson Bruyu and Jurian Teuuissen have produced before the Court of Albany the consent given to their petition, of his Honor the Governour of New York, to purchase from the Indians a certain parcel of land situate on the west side of the North river opposite to the Claverrack near Fort Albany.

Therefore appeared before me, the undersigned Secretary of Albany, five savages, named Sachamoes, Mawinata, also called Schermerhoorn, Keesie Wey, Papenua, Maweha, owners and proprietors of the said land, representing the other co-owners, who declared in the presence of the undersigned witnesses; that they have sold, ceded and transferred, as they herewith cede and transfer the same to the real and actual possession of and fox the benefit of the aforesaid Jan Cloet and Jan Hendricksen Bruyn, to wit, the land called Caniskok, which stretches along the river from the land of Pieter Brouk down to the valley, lying near the point of the main laud behind the Baeren Island, called Machawameck, and runs into the woods both at the North and South ends to the Katskil road. The price for it is a certain sum to be paid in merchandise, which they, the sellers, acknowledge to have received from the purchasers to their full satisfaction; they therefore renounce their former claims and declare Jan Cloet and Jan Hendricksen Bruyn to be the lawful owners of the land, promising, etc.

Thus done at Albany in the presence of Harmen Bastiansen and Hendrick Gerritsen, called in as witnesses, the 2001 of April 1665 Old Style.

In another case Colonel Nicolls, acting as " Governor under his Royall Highnesses the Duke of York," purchased a tract of the "Sachems and people called the Sapes Indyans."

It is perhaps proper to notice a statement by Macauley10 alluding to an earlier transaction not relating directly to the colony, which, however, shows the disposition of the Dutch to purchase such lands as they wished to settle or occupy: "Between the years 1616 and 1620, about twenty persons belonging to the [Dutch East India] Company went from the fort on Dunn's island, below Albany, to Ohnowalagantle, now Schenectady, where they entered into a compact with the Mohawks, from whom they bought some land on which they erected a trading house."

There is but little on record by which to judge of the policy adopted in relation to the dealings of New York with the Indians in reference to their lands, from the close of Dutch control up to the middle of the eighteenth century. A few items noticed are presented here as having some bearing upon the question.

By the instructions to the Earl of Bellomont, August 31, 1697, he is directed to call before him the Five Nations, and upon their renewing their submission to His Majesty's government he is to assure them that he will protect them as subjects against the French King; and when an opportunity offered for purchasing "great tracts of land for His Majts from the Indians for small sums," he was to use his discretion therein as he judged for the convenience of or advantage to His Majesty. This was a clear recognition of the Indians' possessory right and an indication of an intention not to disregard it. However, it appears that under the preceding governor (Fletcher) large grants had been made to individuals with little regard to the Indians' rights, or unauthorized or pretended purchases from the Indians. For example, a considerable portion of the Mohawks' land was obtained by fraudulent and unauthorized purchases, and the grants, notwithstanding the protests of the Indians, were confirmed by Governor Fletcher.11

One of these grants was to Colonel Nicholas Bayard, a member of the council, for a tract on both sides of Schoharie creek, some 24 to 30 miles in length. Another to Godfrey Dellius, 70 miles in length from Battenkill, Washington county, to Vergennes, in Vermont. One to Colonel Henry Beckman, for 16 miles square in Dutchess county; and another on Hudson river, 20 miles in length by 8 in width. One to William Smith, a member of the council, on the island of Nassau, containing about 50 square miles. One to Captain Evans, 40 miles in length by 20 in width, embracing parts of Ulster, Orange, and Rockland counties, etc.

However, it should be remarked that Governor Fletcher, in his reply to the charges made against him, stated that one of the instructions received from the King was "that when any opportunity should offer for purchasing great tracts of land for him from the Indians for small sums he was to use his discretion therein, as he should judge for the convenience or advantage which might arise to His Majesty by the same"' and that the parties to whom the grants were made had presented evidence of their purchases from ,the Indians. It will be observed, however, that these purchases do not appear to have been made for or on behalf of the King, but solely for the individuals named.

On July 19, 1701, the deed presented above, under the section relating to the English policy, by the Five Nations to their "Beaver Hunting Ground" was executed. As this has already been referred to, it is unnecessary to add anything concerning it, except to say that it had no lasting effect nor formed the basis of land claims save in regard to some two or three grants made by the governor of New York under an erroneous construction. It was, in fact, a step on the part of the Iroquois tribes in the effort to bring themselves more directly under the sovereignty and protection of the English and induce them to take more active measures against the French.

In regard to this effort Sir William Johnson remarks as follows:

In this Situation therefore the 5 Nations, who were at the head of a Confederacy of almost all the Northern Nations, and in whom all their interests were united, did in 1701, resolve upon a measure the most wise and prudent with regard to their own interests, and the most advantageous with regard to Ours, that could have been framed; they delineated upon paper in the most precise manner the Limits of what they called their hunting grounds, comprehending the great Lakes of Ontario and Erie, and all the circumjacent Lands for the distance of Sixty miles around them, The sole and absolute property of this Country thy desired might be secured to them; and as a proof of perpetual Alliance, and to support Our Rights against any Claims which the French might make, founded on the vague and uncertain pretence of unlimited Grants or accidental local discovery, they declared themselves killing to yield to Great Britain, the Sovereignty and absolute dominion of it, to be secured and protected y Forts to be erected whenever it should be thought proper.

A Treaty was accordingly entered into and concluded upon these terms by Mr. Nonfat then Lieutenant Governor of New York; and a Deed of surrender of the Lands, expressing the Terms and Conditions, executed by the Indians.

The advantages of such a concession on the part of the Indians were greater than our most sanguine hopes could have expected; and had the Judgment, Zeal and Integrity of those, whose Duty it was faithfully to execute the Conditions of the Engagement, been equal to those of him who made it, the Indians might have been forever secured in Our Interest and all disputes with France about American Territory prevented; but by neglect of Government on one hand, and the enormous abuses of Individuals in the purchase of Lands on the other hand, all the solid advantages of this Treaty and concession were lost, and with them the memory even of the Transaction itself; The Indians were disobliged and disgusted, and many of them joined with the Enemy in the War which followed this Treaty, and disturbed our Settlements, whilst the French, to whom this Transaction pointed out what their plan should be, took every measure to get possession of the Country by Forts and Military Establishments; and although they were compelled at the Treaty of Utrecht to acknowledge in express terms our Sovereignty over the Six Nations, yet finding We took no Steps to avail Ourselves of such a favorable declaration either by a renewal of Our Engagement with the Indians, or taking measures to support Our sovereignty y forts erected in proper parts of the Country, thy ceased not to pursue that Plan, in which they had already made so considerable a progress, and it was not 'till the year 1725, when they had by their Establishment at Niagara, secured to themselves the possession of Lake Ontario, that We saw too late our Error in neglecting the advantages which might have been derived from the Treaty of 1701.12

As referring to the same subject, and as being confirmatory of what is said above in regard to the want of a settled policy, the following remark from the same authority is added:

The Experience We had had of the mischief's, which followed from a want of a proper regard and attention to our engagement in 1701, increased by the danger which now threatened Our Colonies from the daily and enormous encroachments of the French, ought to have been a Lesson to Us to have been now more careful of Our Interests, but Yet the, same avidity after Possession of Indian Lands, aggravated by many other. Abuses, still remained unchecked and uncontrolled y any permanent Plan.13

The change of policy about the middle of the eighteenth century, by which the control of Indian affairs was brought more immediately under the English government, has been referred to in the section relating to the English policy, and need not be repeated here. One additional item, however, may be cited, as it mentions some of the special grants which were the cause of much complaint on the part of the Indians, and served to induce the government to introduce this change.

In a communication from the Lords of Trade to Justice DeLancey, March 19, 1756, is the following statement:

We have lately had under our consideration the present State of Indian Affairs, and as it appears clearly to us, that the Patents of Lands commonly called the Kayoderosseras, Conojohary and that at the Oneida carrying place, which have been made at different times, upon pretence of purchases from the Indians, is one of the principal causes of the decline of our Interest amongst them, and that they can never be induced heartily and zealously to join in the just and necessary measures, His Majesty has been compelled to take, for the recovery of his undoubted Rights, until full satisfaction is given them with respect to these grievances, they have so long and so justly complained of; We have thought it our duty, to recommend this matter to Sir Charles Hardy's serious attention, and to desire he will lay it fully before the Council and Assembly to the end that proper measures may be taken for vacating and annulling these exorbitant grants, as were done upon a former occasion of the like kind in 1699. The many difficulties which will attend the doing this by a legal process in the Courts are so many and so great, as leave us little room to hope for success from such a measure; and we see no remedy to this great evil, but from the interposition of the Legislature by passing a Law for this purpose, which we have directed the Governor earnestly to recommend to them, as a measure which will be for His Majtyes service, for their honor and Interest, and for the advantage, security and welfare of their constituents in general.14

Numerous protests against the Kayoderosseras purchase were presented by the Indians, and the matter was a subject of controversy for a number of years. This is described as "beginning at the half Moon and so up, along Hudson's river to the third Fall and thence to the Cacknawaga or Canada creek which is 4 or 5 miles above the Mohawks." A more exact description has doubtless been published, but is not at present at hand; but it is not essential for the present purpose. The tract was a large one, and the regularity of the purchase was disputed by the Indians. However, in 1768 the patentees produced. the original Indian deed, and having had the boundaries surveyed, the Indians, on receiving "a handsome sum of money were at length prevailed on to yeild their Claim to the Patentees."

It was about the time of the above mentioned communication that Governor Morris stated to the Five Nations that "he found by woeful experience that making purchases of lands was the cause of much blood being shed; he was determined, therefore, to buy no more."'

In a "Review of the trade and affairs of the Indians in the northern district of America," written about this period by Sir William Johnson, he remarks as follows on the subject of Indian lands.

Whilst the Indian Trade was in this State at the Posts and frontiers, the inhabitants were not idle; the reduction of Canada raised the value of Lands, and those who thought they had not enough (who may be presumed to amount to a very large number), now took every step & employed every low Agent, who understood a little of the Indian language to obtain Tracts for them; on this head I need not be particular, having so often explained their conduct and pointed out its consequences; however their avidity in pursuit of grants, and these in the most alarming places, the irregular steps which they took to obtain them, the removal [renewal?] of dormant titles, and the several greater strides, which were taken as herein before is mentioned, concerned the Indians so nearly, that a general uneasiness took place and spread itself throughout them all.14

Although Johnson speaks more than once in this review of the improper methods" though forbade by the royal proclamation and express interposition of the Government" to obtain grants from the Indians, yet he does not inform us how these were perfected. However, as the power of granting lands to individuals remained in the governor of the state, they must have been perfected, so far as this was accomplished, through him. It is proper to add, however, that Cadwallader Colden, writing to the Lords of Trade in 1764, seems to differ somewhat from Johnson:

As to that part of the plan, which respects the purchasing of Land from the Indians, I think it necessary to observe, that the regulations which have been established, and constantly followed in this province, for upwards of twenty* years, appears to have been effectual and convenient, no complaints having been made by Indians, or others, on any purchases made by authority of this Government since that time. By these regulations all lauds purchased of the Indians, are previously to be surveyed by the King's surveyor General of Lands, or his Deputy, in the presence of some Indians deputed for that purpose, by the Nation from whom the purchase is made. Of late years the Deputy Surveyors are not only sworn, but give Bonds, to the Surveyor General, for the due and faithful execution of their work. By thin means the employing of persons, who have not sufficient skill, or of whose integrity one can not be so well assured, is prevented, and the Surveyor General is enabled, to complete a general Map of the Province and to locate the several grants precisely, which cannot be done, if Surveyors, not under the Direction of the Surveyor General, be employed. The Surveyor General in this Province, makes a return of the Survey, upon every Indian purchase, into the Secretaries Office.15

This relates apparently to the officially authorized purchases, and not to those which Johnson alludes to as obtained by fraud. However, as the evidence shows, and as a remedy was applied, it is presumable that Johnson's statement is correct.

A close of this ill-advised and unfortunate course was at last at hand. Orders, proclamations, and instructions, as already shown, had been promulgated by the English government for the purpose of remedying this, but a practical and satisfactory method of solution was not reached until 1765. It was then proposed that a fixed and well, defined boundary or dividing line between the whites and the Indians should be marked out, and that the whites should be absolutely prohibited from settling beyond it under any pretense. This agreement was perfected at the treaty of Fort Stanwix in 1768. The line agreed upon at this treaty with the Six Nations was as follows:

We the said Indians HAVE for us and our Heirs and Successors granted bargained sold released and confirmed and y these presents do Grant bargain sell release and confirm unto our said Sovereign Lord King George the third, All that Tract of Land situate in North America at the Back of the British Settlements bounded y a Line which we have now agreed upon and do hereby establish as the Boundary between ns and the British Colonies in America beginning at the Mouth of Cherokee or Hogohege River where it emptys into the River Ohio and running from thence upwards along the South side of said River to Kittaning which is above Fort Pitt from thence y a direct Line to the nearest Fork of the west branch of Susquehanna thence through the Allegany Mountains along the South side of the said West Branch untill it comes opposite to the mouth of a Creek called (sic) Tiadaghton thence across the West Branch and along the South Side of that Creek and along the North Side of Burnetts Hills to a Creek called Awandāe thence down the same to the East Branch of Susquehanna and across the same and up the East side of that River to Oswegy from thence East to Delawar River and up that River to opposite where Tianaderha falls into Susquehanna thence to Tianaderha and up the West side of its West Branch to the head thereof and thence by a direct Line to Canada Creek where it emptys into the wood Creek at the West of the Carrying Place beyond Fort Stan wig and extending Eastward from every part of the said Line as far as the Lands formerly purchased so as to comprehend the whole of the Lands between the said Line and the purchased Lands or settlements, except what is within the Province of Pensilvania.17

But it was provided "that the lands occupied by the Mohocks around their villages, as well as by any other nation affected by this cession, may effectually remain to them and to their posterity."

As the Indian titles subsequent to this date were obtained by treaties on the part of the state government or the United States, it is unnecessary to allude to them, especially as most of them are mentioned by Mr Royce in the Schedule. The policy pursued by the United States had now been fully adopted, and the Indian titles, with some minor reserves, were finally extinguished in accordance therewith.

This policy was incorporated in the state constitution of 1777, as shown by the following clause:

And whereas, it is of great importance to the safety of this State, that peace and amity with the Indians within the same be at all times supported and maintained: And whereas, the frauds too often practiced towards the said Indians, in contracts made for their lands, have in divers instances, been productive of dangerous discontents and animosities:

Be it ordained, That no purchase or contracts for the sale of lands made since the fourteenth day of October, in the year of our Lord, one thousand seven hundred and seventy-five, or which may hereafter be made with any of the said Indians, within the limits of this State, shall be binding on the said Indians, or deemed valid, unless made under the authority, and with the consent, of the Legislature of this State.18

It will be observed that the state acknowledged, in the most solemn manner possible, the frauds practiced on the Indians in regard to their lands.

Numerous acts were subsequently passed by the legislature in regard to Indian lands, but one only of these, which is general in its scope, is here noticed. This act, which was passed in 17881 is as follows:

AN ACT to punish infractions of that article of the Constitution of this state, prohibiting purchases of lands from the Indians, without the authority and consent of the Legislature, and more effectually to provide against intrusions on the un-appropriated lands of this State.
Whereas, y the thirty-seventh section of the Constitution of this State, reciting that it is of great importance to the safety of this State, that peace and amity with the Indians within the same be at all times supported and maintained; and that the frauds too often practiced towards the said Indians, in contracts made for their lands, have, in divers instances, been productive of dangerous discontents and animosities; it is ordained, that no purchases or contracts for the sale of lands, made since the fourteenth 'day of October, one thousand seven hundred and seventy-five, or which might thereafter be made with, or of the said Indians within the limits of this State, shall be binding on the said Indians, or deemed valid, unless made under the authority, and with the consent of the Legislature of this State. In order, therefore, more effectually to provide against infractions of the Constitution in this respect,
1. Be it enacted by the people of the State of New York, represented in Senate and Assembly, and it is hereby enacted by the authority of the same, That if any person shall hereafter, unless under the authority, and with the consent of the Legislature of this State, in any manner or form, or any terms whatsoever, purchase any lauds within the limits of this State, or make contracts for the sale of lands within the limits of this State, with any Indian or Indians residing within the limits of this State, every person so purchasing, or so making a contract, shall be deemed to have offended against the people of this State, and shall, on conviction, forfeit one hundred pounds to the people of this State, and shall be further punished by fine and imprisonment, in the discretion of the court.

2. And be it further enacted by the authority aforesaid, That every person who shall hereafter give, convey, sell, demise, or otherwise dispose of or offer to give, convey, sell, demise, or otherwise dispose of any lands within the limits of this State, or any right, interest, part or share, of or in any lands within the limits of this State, to intrude, or enter on, or take possession of, or settle on any lands within the limits of this State, pretending or claiming any right, title, or interest in such lands by virtue, under color, or in consequence of any purchase from, or contract for the sale of lauds made with any such Indian or Indians as aforesaid, at any time since the fourteenth day of October, one thousand seven hundred and seventy-five, and not under the authority, and with the consent of the Legislature of this State, every such person shall be deemed to have offended against the people of this State, and shall on conviction, forfeit the sum of one hundred pounds to the people of this State, and be further punished by fine and imprisonment, in the discretion of the court.

And be it further enacted by the authority aforesaid, That if any persons other than Indians, shall, after the passing of this act, take possession of, or intrude or settle on any of the waste or ungranted lands of this State, lying eastward of the lands ceded y this State to the Commonwealth of Massachusetts, and westward of the line or lines commonly called the Line of Property, agreed on between the Indians and the Superintendent of Indian affairs, in the year one thousand seven hundred and sixty-eight, every person so taking possession of, or intruding or settling on any such waste or ungranted lands within the limits aforesaid, shall be deemed as holding such lands by a foreign title, against the right and sovereignty of the people of this State; and it shall and may be lawful for the person administering the government of this State for the time being, and it is hereby declared to be his duty to remove, or cause to be removed, from time to time, by such means, and in such manner as he shall judge proper, all persons other than Indians who shall so take possession of or settle or intrude on any of the waste or ungranted lands of this State, within the limits aforesaid, and to cause the buildings or other improvements of such intruders on such lands, to be destroyed; and for that purpose, in his discretion, to order out any proportion of the militia from any part of this State, and such an occasion to be deemed: an emergency, intended in the second section of the act entitled "An act to regulate the militia," passed the fourth day of April, 1786. And the detachments so from time to time to be ordered out, shall receive the same pay and rations, and be subject to the same rules and regulations, as is provided in the said section of the said act.17

Before closing this section, the following remarks by Yates and Moulton2 in regard to the policy of the State of New York in this respect are presented, in order that they may be considered in connection with the facts which have been given:

In New York, prior to the confederacy of the Union, the same principle as that which was confirmed in Virginia was adopted as an article (37) of the constitution of 17 77, and reincorporated in that of 1822 (article 7, section 12). It rendered contracts made with the Indians void unless sanctioned by the legislature. Before and since the adoption of the constitution of the United States various legislative provisions have been made relative to the different Indian tribes and nations within the State. Judicial decisions have also followed some of which were deemed to run counter to the broad principle as settled in the last case by the courts, and were therefore reversed directly or virtually. But it had been early settled that possession of Indians did not invalidate a patent from the State, and that sales by Indians were void made to the whites without legislative sanction. But in the final decision of the Court of Errors, it was considered, that from the constitutional provisions of the State, from the object and policy of the act relative to the different tribes and nations within this State, declaring such purchases (without legislative sanction) a penal offence; from the construction in pari materia of the whole code of Indian statute law, from the special act of 1778 to that of 1810; from a review of the history of the Six Nations from their first alliance with the Dutch until the surrender of the o colony to the English, and from the time when they placed themselves under the protection of the latter to the present period, having for more than a century been under their and our protection; from the resolutions of Congress and our public treaties, all combining to elucidate the principle of preeminent claim, and from the whole scope and policy of these constitutional and legislative provisions originating in the cautious and parental policy of government to protect the Indians in the possession of their lands from the frauds and imposition, superior cunning, and sagacity of the whites; they were to be deemed as incapable of aliening as inoper concilii, and therefore, that, although they are regarded not as citizens, but as independent allies, or alien communities, still continuing under the. protection of government, and exempt from the civil municipal laws which regulate citizens, (though not from the operation of our criminal code for crimes committed within our jurisdictional limits, though among themselves) nevertheless, all contracts for lands, whether from a tribe or nation from Indians or from an individual Indian, whether such individual be an Indian heir deriving from a military grant from government, (which though presumed from lapse of time to have issued lawfully, must be construed as a grant to the Indian and his Indian heirs and assigns) yet such is their total incapacity to convey to whites, that all contracts for lands are not only void, but reciprocally inoperative, except such individual sales as shall first receive, pursuant to the act of the legislature, the approval of the Surveyor General of the State, to be indorsed on the deed from such Indian.

Such being the principles of international law, as sanctioned before and since our revolution, such the municipal regulations of our general and State governments since, and such the foundation to the domain of this State; no title derived from the grant of any Indians, unless received immediately from our government, can be recognized in our courts of justice so long as all title is vested in, and must emanate from the United States, or a State, under which so ever jurisdiction the land may be a part of its sovereignty.

This is undoubtedly a correct statement of the law and theory of the United States as already noticed, and is also applicable to New York subsequent to the treaty of Fort Stanwix in 1768, but the facts as given above, which might be greatly multiplied, do not indicate such a regular, systematic, and just policy prior to this date as that portrayed by Yates and Moulton.


1 New York Colonial Documents, vol. I, p. 149.
2 Ibid., p. 37.
3 History of the City of New York, p. 53.
4 Three Dutch miles equal 12 English miles.
5 New York Colonial Documents, vol. I, p. 44
6 Ibid., vol. u, pp. 96-100.
7 Ibid., p. 119
8 History of the state of New York (1829), vol. it, p. 260.
9 Ibid., vol. it, p. 320.
10 Colonial Documents of New York, vol. XIII, pp. 395 of seq.
11 New York Colonial Documents, vol. iv, pp. 345, 346.
12 Documentary History of New York, vol. II, p. 778.
13 Documentary History of New York, vol. n, p. 780.
14 New York Colonial Documents, vol. vii, p. 78.
15 New York Colonial Documents, vol. vii, p. 961.
16 Ibid p. 670.
17 New York Colonial Documents, vol. VIII, p. 136.
18 Laws of Colonial and Sate Governments in Regard to Indian Affairs, 1832, p. 61.


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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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