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New Hampshire and Delaware Indian Land Cessions

 

 Native American Nations | Indian Land Cessions in the United States                    

As the policy adopted by the colonies of New Hampshire and Delaware in treating with the Indians in regard to their lands was so intimately connected with that of the older adjoining colonies as to form in reality but a part of the history thereof, it is thought unnecessary to give the details.

Policy of the United States

As already observed, the policy of the United States respecting the process of obtaining or extinguishing the Indian title to their lands was outlined, while the government was condncted under the Articles of Confederation. By a 14 clause of No. ix" of the "Articles of Confederation," it was agreed that "The United States in Congress assembled shall have the sole and exclusive right and power 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."

By the proclamation of September 22, 1783, all persons were prohibited "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 will be seen from this that the prohibition was not limited to lands in the actual use and possession of and occupied by the Indians, but extended to that claimed by them. It will also be observed that by the Articles of Confederation and as implied in this proclamation (or act of Congress) the sole authority in this respect is limited to "The United States in Congress assembled."

Although the theory and policy implied in the prohibitory clause have been maintained under the Constitution, there has been a change as to the "authority" which may act. The clause of the Articles of Confederation was not inserted in the Constitution, either in words or in substance. As power to regulate the commerce with the Indians is the only specific mention therein of relations with the natives, the authority to act must be found in this clause, in that relating to making treaties, and in the general powers granted to the Congress and the Executive.

An examination of the treaties, agreements, executive orders, acts of Congress, etc, referred to in the schedule which follows, will show that there are various methods of dealing with the Indians in regard to lands, and that these methods have not been entirely uniform.

According to the Annual Report of the Commissioner of Indian Affairs for 1890 (page xxix), "From the execution of the first treaty made between the United States and the Indian tribes residing within its limits (September 17, 1778, with the Delaware) to the adoption of the act of March 3,18711 that ' no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty,' the United States has pursued a uniform course of extinguishing the Indian title only with the consent of those tribes which were recognized as having claim to the soil by reason of occupancy, such consent being expressed in treaties.... Except only in the case of the Sioux Indians in Minnesota, after the outbreak of 1862, the Government has never extinguished. an Indian title as by right of conquest; and in this case the Indians were provided with another reservation, and subsequently were paid the net proceeds arising from the sale of the land vacated."

It would appear from this that until March 3, 1871, Indian titles to lands were extinguished only under the treaty: making clause of the Constitution. Treaties with Indians, even though the tribe had been reduced to an insignificant band, were usually clothed in all the stately
verbiage that characterized a treaty with a leading European power; as, for example, the following:1

Whereas a treaty between the United States of America and the mingles, chiefs, captains and warriors, of the Choctaw nation, was entered into at Dancing Rabbit creek, on the twenty-seventh clay of September, in the year of our Lord one thousand eight hundred and thirty, and of the independence of the United States the fifty-fifth, by John H. Eaton and John Coffee, commissioners on the part of the United States, and the chiefs, captains, and headmen of the Choctaw nation, On the part of said nation; which treaty, together with the supplemental article thereto, is in the words following, to wit:

Now, therefore, be it known that I, Andrew Jackson, President of the United States of America, having seen and considered said treaty, do, in pursuance of the advice and consent of the Senate, as expressed by their resolution of the twenty-first clay of February, one thousand eight hundred and thirty-one, accept, ratify, and confirm the same, and every clause and article thereof, with the exception of the preamble.

In testimony where of, I have caused the seal of the United States to be here unto affixed, having signed the same with my hand.

Done at the City of Washington, this twenty-fourth day of February, in the year of our Lord one thousand eight hundred and thirty-one, and of the independence of the United States the fifty-fifth.
ANDREW .JACKSON.
By the President :
M. VAN BUREN, Secretary of State.

By the act of March 3, 18717 the legal fiction of recognizing the tribes as independent nations with which the United States could enter into solemn treaty was, after it had continued nearly a hundred years, finally clone away with. The effect of this act was to bring under the immediate control of the Congress the transactions with the Indians and reduce to simple agreements what had before been accomplished by solemn treaties.

from the report of the Commissioner of Indian Affairs above referred to, we learn that the Indian title to all the public domain had then been extinguished, except in Alaska and in the portions included in one hundred and sixty two Indian reservations and those acquired by the Indians through purchase.

Of these one hundred and sixty-two reservations there were established.

By Executive order 56
By Executive order under authority of act of Congress 6
By act of Congress 28
By treaty, with boundaries defined or enlarged by Executive order 15
By treaty or agreement and act of Congress 5
By unratified treaty 1
By treaty or agreement 51

It appears from this list that the method of establishing reservations has not been uniform, some being by treaty, some by Executive order, and others by act of Congress. Those established by Executive order, independent of the act of Congress, were. not held to be permanent before the "general allotment act" of 1887, under which "the tenure has been materially changed and all reservations, whether by Executive order, act of Congress, or treaty, are held permanent."

Reservations by Executive order under authority of an act of Congress are those which have been authorized or established by acts of Congress and their limits defined by Executive order; or have been first established by Executive order and subsequently confirmed by Congress.

Other respects in which the power of Congress intervenes in reference to Indian lands, or is necessary to enable the Indians to carry out 'their desires in regard thereto, are the following:

Allotments of land in severalty, previous to the act of February 8, 1887, could only be made by treaty or by virtue of an act of Congress, but by this act general authority is given to the Commissioner of Indian Affairs for this purpose.

Leases of land, sale of standing timber, granting of mining privileges, and right of way to railroads are all prohibited to the Indians without some enabling act of Congress. On the other hand, it is obligatory upon the government to prevent any intrusion, trespass, or settlement on the lands of any nation or tribe of Indians except where the tribe or nation has given consent by agreement or treaty.

The different titles held by Indians which have been recognized by the government appear to be as. follows: The original right of occupancy, which has been sufficiently referred to. The title to reservations differs from the original title chiefly in the fact that it is derived from the United States. The tenure since the act of 1887 is the same, and the inability to alienate or transfer is the same, the absolute right being in the government. A third class is that where reservations have been patented to Indian tribes. According to the report of the Commissioner of Indian Affairs,' patents to the Cherokee, Choctaw, and Creek nations for the tracts respectively defined by the treaty stipulations were as follows:

December 31, 1838, to the Cherokee Nation, forever, upon conditions, one of which is "that the lands hereby granted shall revert to the United States if the said Cherokees become extinct or abandon the same."

March 23, 1842, to the Choctaw Nation, in fee simple to them and their descendants, "to inure to them while they shall exist as a nation and live on it, liable to no transfer or alienation, except to the United States or with their consent."

August 11, 1852, to the Muscogee or Creek tribe of Indians "so long as they shall exist as a nation and continue to occupy the country hereby conveyed to them."

The construction given to these titles by the Indian bureau and the courts is that they are not the same as the ordinary title by occupancy; but "a base, qualified, or determinable fee, with only a possibility of reversion to the United States, and the authorities of these nations may cut, sell, and dispose of their timber, and may permit mining and grazing within the limits of their respective tracts by their own citizens." However, the act of March 1, 1889, establishing a United States court in Indian Territory, repeals all laws having the effect to prevent the five civilized tribes in said territory from entering into leases or contracts with others than their own citizens for mining coal for a period not exceeding ten years.

Lands allotted and patented were held by a tenure of a somewhat higher grade than those mentioned, though their exact status in this respect does not appear to have been clearly defined. The chief paragraphs of the act of 1887 bearing on this point are as follows:
Section 1 of this act provides:

That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an Act of Congress or Executive order setting apart the same for their use, the President of the United States he, and he hereby is, authorized, whenever in his opinion any reservation, or any part thereof, of such Indians is advantageous for agricultural or grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed, if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon, etc.

The first clause of section 2 provides, in substance, that all allotments set apart under the provisions of this act shall be selected by the Indians, heads of families selecting for their minor children, and the agents shall select for each orphan child, and in such manner as to embrace the improvements of the Indians making the selection.

In this section it is also provided that if any person entitled to an allotment shall fail to make a selection, the Secretary of the Interior may, after four years from the time allotments shall have been authorized. by the President on a particular reservation, direct the agent for the tribe, or a special agent appointed for the purpose, to make a selection for such person, which shall be patented to him as other selections are patented to the parties making them.

Section 4 provides for making allotments from the public domain to Indians not residing upon any reservation or for whose tribe no reservation has been. provided by treaty, act of Congress, or executive order. Section 6 provides as follows:

That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian horn within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up within said limits his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property.

This would seem to make the Indian a true and complete citizen, entitled to all the rights of any other citizen, yet this does not appear to be conceded.

Acknowledgments

It is with pleasure that the author of this introduction acknowledges the valued assistance rendered by the Bureau of Indian Affairs, and especially by Mr. Robert F. Thompson of that office, in correcting errors in and obtaining data for the Schedule of Land Cessions which follows, as well as for the Schedule of Allotments of Land in Severalty.  with out his assistance the data relating to several treaties and cessions could not have been given.  Acknowledgments are due also to Mr. Robert H. Morton, of the General Land Office, for valuable and necessary information in reference to several items of the Schedule.


1 Laws, etc., Relating to Public Lands, vol. ii (1836) pp. 104:117.
 


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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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