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Right to the Soil Dependent on Discovery

 Native American Nations | Indian Land Cessions in the United States                   

Each of the great nations of Europe was eager to appropriate to itself so much of the new continent as it could acquire. Its extent afforded an ample field for the ambition and enterprise of all, and the character, low culture status, and religious beliefs of the aborigines afforded an apology for considering them a people over whom the superior genius of Europe might rightfully claim an ascendancy. The sovereigns of the Old World therefore found no difficulty in convincing themselves that they made ample compensation to the natives by bestowing on them the benefits of civilization and Christianity in exchange for control over them and their country. However, as they were all in pursuit of the same object, it became necessary, in order to avoid conflicting settlements and consequent war with one another, to establish a principle which all would acknowledge as the law by which the right, as between themselves, to the acquisition of territory on this continent, should be determined. This principle was, that discovery of lands gave title therein to the government by whose subjects or by whose authority such discovery was made, against all other European or' civilized governments, which title might be consummated by possession. This is clearly shown, not only by the express declarations officially made in behalf of the different powers, but also by the wording of the various grants and charters allowed by them. However, the opinion of the United States Supreme Court1 is so full and decisive on this point that a summary of the statements therein contained will dispense with the necessity of furnishing proof of the acknowledgment of this principle from the history of the discovery and settlement of the continent.

Although Spain obtained immense territory in the western continent, she did not rest her title solely on the grant of the Pope. On the contrary, her discussions with France, Great Britain, and the United States respecting boundaries all go to show very clearly that she based her claims on the rights given by discovery.

France also founded her title to the territories she claimed in America on discovery. Her claim to Louisiana, comprehending the immense territory watered by the Mississippi and its tributaries, and her claims in Canada as well, were based expressly on discovery. In the treaties made with Spain and Great Britain by the United States this title was recognized by the latter. The claims by the states of Holland to American territory were based on the same title, and the contest with them by the English was not because of a dispute of this principle, but because the latter claimed prior discovery. All the transfers of American territory from one European nation to another were based on the title by discovery; nor did any one of the European powers give more complete or more unequivocal assent to this principle than England. In 1496 her monarch commissioned the Cabots to discover countries "then unknown to all Christian people," with authority to take possession of them in the name of the King of England. To the discovery made by these navigators have the English traced the title to their possessions in North America.

In all these claims and contests between the civilized nations of Europe, the Indian title to the soil is nowhere allowed to intervene, it being conceded that the nation making the discovery had the sole right of acquiring the soil from the natives and of establishing settlements on it. This was understood to be a right with which no other European government could interfere; it was a right which each government asserted for itself and to which all others assented. Those relations which were to exist between the discoverers and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.

Nevertheless, it must not be understood that the Indians' rights were wholly disregarded by the powers in planting colonies in the territories taken possession of by them.

Continuing, the court remarks:

In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded, but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it [or rather so much as was necessary for their use], and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it.

While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence f this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.

The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.

In these statements the court, of course, speaks only from the legal point of view or theory, for it is well known that in their practical dealings with the natives the nations of Europe, and the United States also, often failed to carry out this theory. It is also doubtful whether it cart truly be said that France fully recognized the Indian title, even theoretically, to the extent indicated.

The right to take possession regardless of the occupancy of the natives was not only claimed by all the nations making discoveries, but the same principle continued to be recognized. This is shown by the following instances adduced by the court, to which many others might be added:

The charter granted to Sir Humphrey Gilbert, in 1578, authorizes him to discover and take possession of such remote, heathen and barbarous lands as were not actually possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh in nearly the same terms.

By the charter of 1606, under which the first permanent English settlement on this continent was made, James I. granted to Sir Thomas Gates and others, those territories in America lying on the seacoast between the thirty-fourth and forty-fifth degrees of north latitude, and which either belonged to that monarch, or were not then possessed by any other Christian prince or people. The grantees were divided into two companies at their own request. The first, or southern colony, was directed to settle between the thirty-fourth and forty-first degrees of north latitude; and the second, or northern colony, between the thirty-eighth and forty-fifth degrees.

In 1609, after some expensive and not very successful attempts at settlement had been made, a new and more enlarged charter was given by the Crown to the first colony, in which the King granted to the " Treasurer and Company of Adventurers of the city of London for the first colony in Virginia," in absolute property, the lands extending along the seacoast 400 miles, and into the land throughout. from sea to sea. This charter, which is a part of the special verdict in this cause, was annulled, so far as respected the rights of the company, by the judgment of the Court of King's Bench on a writ of quo warranto; but the whole effect allowed to this judgment was to revest in the crown the powers of government, and the title to the land within its limits.

At the solicitation of those who held under the grant to the second or northern colony, a new and more enlarged charter was granted to the Duke of Lenox and others, in 1620, who were denominated the Plymouth Company, conveying to them in absolute property all the lands between the fortieth and forty-eighth degrees of north latitude.

Under this patent, New England has been in a great measure settled. The company conveyed to Henry Rosewell and others, in 1627, that territory which is now Massachusetts; and in 1628, a charter of incorporation, comprehending the powers of government, was granted to the purchasers.

Great part of New England was granted by this company, which at length divided their remaining lands among themselves; and, in 1635, surrendered their charter to the crown. A patent was granted to Gorges for Maine, which was allotted to him in the division of property.

All the grants made by the Plymouth Company, so far as we can learn, have been respected. In pursuance of the same principle, the King, in 1664, granted to the Duke of York the country of New England as far south as the Delaware bay. His Royal Highness transferred New Jersey to Lord Berkeley and Sir George Carteret.

In 1663, the Crown granted to Lord Clarendon and others, the country lying between the thirty-sixth degree of north latitude and the river St Mathes; and, in 1666, the proprietors obtained from the crown a new charter, granting to them that province in the King's dominions in North America which lies from thirty-sixth degrees thirty minutes north latitude to the twenty-ninth degree; and from the Atlantic Ocean to the South sea.

Thus has our whole country been granted. y the crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the Crown, or was vested in the colonial government, the king claimed and exercised the right of granting lands and of dismembering the government at his will. The grants made out of the two original colonies, after the resumption of their charters y the crown, are examples of this. The governments of New England, New York, New Jersey, Pennsylvania, Maryland, and a part of Carolina, were thus created. In all of them, the soil, at the time the grants were made, was occupied y the Indians. Yet almost every title within those governments is dependent on these grants. In some instances, the soil was conveyed y the crown unaccompanied y the powers of government, as in the case of the northern neck of Virginia. It has never been objected to this, or to any other similar grant, that the title as well as possession was in the Indians when it was made, and that it passed nothing on that account.

These various patents can not be considered as nullities; nor can they be limited to a mere grant of the powers of government. A charter intended to convey political power only, would never contain words expressly granting the land, the soil and the waters. Some of them purport to convey the soil alone; and in those cases in which the pours of government, as well as the soil, are conveyed to individuals, the crown has always acknowledged itself to be bound y the grant. Though the pour to dismember regal governments was asserted and exercised, the power to dismember proprietary governments was not claimed; and, in some instances, even after the powers of government were revested in the crown, the title of the proprietors to the soil was respected.

Charles II. was extremely anxious to acquire the property of Maine, but the grantees sold it to Massachusetts, and he did not venture to contest the right of that colony to the soil. The Carolinas were originally proprietary governments. In 1721 a revolution was effected y the people, who shook off their obedience to the proprietors, and declared their dependence immediately on the crown. The king, however, purchased the title of those who were disposed to sell. One of them, Lord Carteret, surrendered his interest in the government, but retained his title to the soil. That title was respected till the revolution, when it was forfeited by the laws of war.

Further proofs of the extent to which this principle has been recognized, will be found in the history of the wars, negotiations and treaties which the different nations, claiming territory in America, have carried on and held with each other.

Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognized in others, the exclusive right of the discoverer to appropriate the lands occupied y the Indians. Have the American States rejected or adopted this principle?

By the treaty which concluded the war of our Revolution, Great Britain relinquished all claim, not only to the government, but to the "propriety and territorial rights of the United States," whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these states. We had before taken possession of them, by declaring independence; but neither the declaration of independence, nor the treaty confirming it, could give us more than that which we before possessed, or to which Great Britain was before entitled. It has never been doubted, that either the United States, or the several states, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive pour to extinguish that right was vested in that government which might constitutionally exercise it.

That this rule has been adopted also by the United States is asserted by the Supreme Court in the same opinion:

The United States, then, have unequivocally acceded to that great and broad rule y which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.

The power now possessed by the Government of the United States to grant lands resided, while we were colonies, in the crown or its grantees. The validity of the titles given by either has never been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with, and control it. An absolute title to lands can not exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the crown, subject only too the Indian right of occupancy, and recognized the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.

We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the courts of the conqueror can not deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave to them. These claims have been maintained and established as far west as the river Mississippi, by the sword. The title to a vast portion of the lands we now bold, originates in them. It is not for the courts of this country to question the validity of this title or, to sustain one which is incompatible with it.

Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.

The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually they are incorporated with the victorious nation and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimparied; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections, and united y force to strangers.

When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he can not neglect them without injury to his fame and hazard to his power.

But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness; to govern them as a distinct people was impossible because they are as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims y the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighborhood and exposing themselves and their families to the perpetual hazard of being massacred.

Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers and skill, prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighborhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied y its ancient inhabitants, was parceled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies.

That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty.

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and can not be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported y reason, and certainly can not be rejected by courts of justice.

It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned.. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right. The object of the crown was to settle the seacoast of America; and when a portion of it was settled, without violating the rights of others, y persons professing their loyalty, and soliciting the royal sanction of an act, the consequences of which were ascertained to be beneficial, it would have been as unwise as ungracious to expel them from their habitations because they had obtained the Indian title otherwise than through the agency of government. The very grant of a charter is an assertion of the title of the crown, and its words convey the same idea. The country granted is said to be "our island called Rhode Island;" and the charter contains an actual grant of the soil, as well as of the powers of government.

1 Johnson and Graham's lessee v. McIntosh, 8 Wheaton, p. 543 et seq.

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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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