The question of the honorableness of the United States' dealings with the Indians turns largely on a much disputed and little understood point. What was the nature of the Indians' right to the country in which they were living when the continent of North America was discovered? Between the theory of some sentimentalists that the Indians were the real owners of the soil, and the theory of some politicians that they had no right of ownership whatever in it, there
are innumerable grades and confusions of opinion. The only authority on the point must be the view and usage as accepted by the great discovering Powers at the time of discovery, and afterward in their disposition of the lands discovered.
Fortunately, an honest examination of these points leaves no doubt on the matter.
England, France, Spain, little Portugal-all quarrelling fiercely, and fighting with each other for the biggest share in the new continent-each claiming -"sovereignty of the soil" by right of priority of discovery - all recognized the Indians' " right of occupancy" as a right; a right alienable in but two ways, either by purchase or by conquest.
All their discussions as to boundaries, from 1603 down to 1776, recognized this right and this principle. They reiterated, firstly, that discoverers had the right of sovereignty-a right in so far absolute that the discoverer was empowered by it not only to take possession of, but to grant, sell, and convey lands still occupied by Indians-and that for any nation to attempt to take possession of, grant, sell, or convey any such Indian-occupied lands while said lands
were claimed by other nations under the right of discovery, was an infringement of rights, and just occasion of war; secondly, that all this granting, selling, conveying was to be understood to be " subject to the Indians' right of occupancy," which remained to be extinguished either through further purchase or through conquest by the grantee or purchaser.
Peters, in his preface to the seventh volume of the "United States Statutes at Large," says, "The history of America, from its discovery to the present day, proves the universal recognition of these principles."
Each discovering Power might regulate the relations between herself and the Indians; but as to the existence of the Indians' " right of occupancy," there was absolute unanimity among them. That there should have been unanimity regarding any one thing between them is remarkable. It is impossible for us to realize what a sudden invitation to greed and discord lay in this fair, beautiful, unclaimed continent-eight millions of square miles of land-more than twice the
size of all Europe itself. What a lure today would such another new continent prove! The fighting over it would be as fierce now as the fighting was then, and the " right of occupancy" of the natives would stand small chance of such unanimous recognition as the four Great Powers then justly gave it.
Of the fairness of holding that ultimate sovereignty belonged to the civilized discoverer, as against the savage barbarian, there is no manner or ground of doubt. To question this is feeble sentimentalism. But to affirm and uphold this is not in any wise to overlook the lesser right which remained; as good, of its kind, and to its extent, as was the greater right to which, in the just nature of things, it was bound to give way.
It being clear, then, that the Indians' "right of occupancy" was a right recognized by all the great discovering Powers, acted upon by them in all their dispositions of lands here discovered, it remains next to inquire whether the United States Government, on taking its place among the nations, also recognized or accepted this Indian "right of occupancy" as an actual right. Upon this point, also, there is no doubt.
"By the treaty which concluded the War of our Revolution, Great Britain relinquished all claims not only to the government, but to the proprietary and territorial rights of the United States whose boundaries were fixed in the second Article. By this treaty the powers of the government and the right to soil which had previously been in Great Britain passed definitely 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 right to extinguish that right was vested in that government which might
constitutionally exercise it."1
* Peters, United States Statutes at Large, vol. vii.
" Subject to the Indian right of occupancy." It is noticeable how perpetually this phrase reappears. In their desire to define, assert, and enforce the greater right, the " right of sovereignty," the makers, interpreters, and recorders of law did not realize, probably, how clearly arid equally they were defining, asserting, and enforcing the lesser right, the "right of occupancy."
Probably they did not so much as dream that a time would come when even this lesser right-this least of all rights, it would seem, which could be claimed by, or conceded to, an aboriginal inhabitant of a country, however savage-would be practically denied to our Indians. But if they had foreseen such a time, they could, hardly have left more explicit testimony to meet the exigency.
" The United States has unequivocally acceded to that great and broad rule by 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 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 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 territories 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 cannot 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 to the Indian right of occupancy, and recognize the absolute title of the Crown to extinguish the right. This is incompatible with an absolute and complete title in the Indians."2
Certainly. But it is also "incompatible with an absolute and perfect title " in the white man! Here again, in their desire to define and enforce the greater right, by making it so clear that it included the lesser one, they equally define and enforce the lesser right as a thing to be included. The word "subject" is a strong participle when it is used legally. Provisions are made in wills, "subject to" a widow's right of dower, for instance, and the provisions
cannot be carried out without the consent of the person to whom they are thus declared to be " subject." A title, which is pronounced to be "subject to" anything or anybody, cannot be said to be absolute till that subjection is removed.
There have been some definitions and limitations by high legal authority of the methods in which this Indian "right of occupancy" might be extinguished even by conquest.
"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. Usually they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected.
* * * When this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old. * * * 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 cannot neglect them without injury to his fame, and hazard to his power."3
3 Peters, United States Statutes at Large, vol. vii.
In the sadly famous case of the removal of the Cherokee tribe from Georgia, it is recorded as the opinion of our Supreme Court that "the Indians are acknowledged to have an unquestionable, and heretofore unquestioned, right to the lands they occupy until that right shall be extinguished by a voluntary cession to the Government." * * * "The Indian nations have always been considered as distinct independent political communities, retaining their original natural
rights as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed; and this was a restriction which those European potentates imposed on themselves as well as on the Indians. The very term 'nation,' so generally applied to them, means `a people distinct
from others.' The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words `treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and
well-understood meaning. We have applied them to Indians as we have applied them to other nations of the earth. They are applied to all in the same sense."4
* Worcester vs. State of Georgia, 6 Peters, 515.
In another decision of the Supreme Court we find still greater emphasis put upon the Indian right of occupancy, by stating it as a right, the observance of which was stipulated for in treaties between the United States and other nations.
"When the United States acquired and took possession of the Florida's, the treaties which had been made with the Indian tribes before the acquisition of the territory by Spain and Great Britain remained in force over all the ceded territory, as the law which regulated the relations with all the Indians who were parties to them, and were binding on the United States by the obligation they had assumed by the Louisiana treaty as a supreme law of the land.
"The treaties with Spain and England before the acquisition of Florida by the United States, which guaranteed to the Seminole Indians their lands, according to the right of property with which they possessed them, were adopted by the United States, who thus became the protectors of all the rights they (the Indians) had previously enjoyed, or could of right enjoy, under Great Britain or Spain, as individuals or nations, by any treaty to which the United States thus
became parties in 1803. * * *
"The Indian right to the lands as property was not merely of possession; that of alienation was concomitant; both were equally secured, protected; and guaranteed by Great Britain and Spain, subject only to ratification and confirmation by the license, charter, or deed from the government representing the king." * * *
The laws made it necessary, when the Indians sold their lands, to have the deeds presented to the governor for confirmation. The sales by the Indians transferred the kind of right which they possessed; the ratification of the sale by the governor must be regarded as a relinquishment of the title of the Crown to the purchaser, and no instance is known of refusal of permission to sell, or of the rejection of an Indian sale.5
5 United States vs. Clark, 9 Peters, 168.
"The colonial charters, a great portion of the individual grants by the proprietary and royal governments, and a still greater portion" by the States of the Union after the Revolution, were made for lands within the Indian hunting grounds. North Carolina and Virginia, to a great extent, paid their officers and soldiers of the Revolutionary War by such grants, and extinguished the arrears due the army by similar means. It was one of the great resources, which
sustained the war, not only by those States but by other States. The ultimate fee, encumbered with the right of occupancy, was in the Crown previous to the Revolution, and in the States afterward, and subject to grant. This right of occupancy was protected by the political power, and respected by the courts until extinguished." * * * "So the Supreme Court and the State courts have uniformly held."5
5 Clark vs. Smith, 13 Peters.
President Adams, in his Message of 1828, thus describes the policy of the United States toward the Indians at that time:
"At the establishment of the Federal Government the principle was adopted of considering them as foreign and independent powers, and also as proprietors of lands. As independent powers, we negotiated with them by treaties; as proprietors, we purchased of them all the land which we could prevail on them to sell; as brethren of the human race, rude and ignorant, we endeavored to bring them to the knowledge of religion and letters."
Kent says: "The European nations which, respectively, established colonies in America, assumed the ultimate dominion to be in themselves, and claimed the exclusive right to grant a title to the soil, subject only to the Indian right of occupancy. The natives were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion, though not to dispose of the soil at
their own will, except to the government claiming the right of pre-emption." "The United States adopted the same principle; and their exclusive right to extinguish the Indian title by purchase or conquest, and to grant the soil and exercise such a degree of sovereignty as circumstances required, has never been judicially questioned."
Kent also says, after giving the Supreme Court decision in the case of Johnson vs. M'Intosh: "The same court has since been repeatedly called upon to discuss and decide great questions concerning Indian rights and title, and the subject has of late become exceedingly grave and momentous, affecting the faith and the character, if not the tranquility and safety, of the Government of the United States."
In Gardner's "Institutes of International Law" the respective rights to land of the Indians and the whites are thus summed up: " In our Union the aborigines had only a possessory title, and in the original thirteen States each owned in fee, subject to the Indian right, all ungranted lands within their respective limits; and beyond the States the residue of the ungranted lands were vested in fee in the United States, subject to the Indian possessory right, to the
extent of the national limits."
Dr. Walker, in his "American Law," makes a still briefer summary: "The American doctrine on the subject of Indian title is briefly this: The Indians have no fee in the lands they occupy. The fee is in the Government. They cannot, of course, aliene them either to nations or individuals, the exclusive right of pre-emption being in the Government. Yet they have a qualified right of occupancy which can only be extinguished by treaty, and upon fair compensation; until
which they are entitled to be protected in their possession."
"Abbott's Digest," one of the very latest authorities, reiterates the same principle: " The right of occupancy has been recognized in countless ways, among others by many decisions of courts and opinions of attorney-generals."
It being thus established that the Indian's " right of occupancy" in his lands was a right recognized by all the Great Powers discovering this continent, and accepted by them as a right necessary to be extinguished either by purchase or conquest, and that the United States, as a nation, has also from the beginning recognized, accepted, and acted upon this theory, it is next in order to inquire whether the United States has dealt honorably or dishonorably by the
Indians in this matter of their recognized "right of occupancy."
In regard to the actions of individuals there is rarely much room for discussion whether they be honorable or dishonorable, the standard of honor in men's conduct being, among the civilized, uniform, well understood, and undisputed. Stealing, for instance, is everywhere held to be dishonorable, as well as impolitic; lying, also, in all its forms; breaking of promises and betrayals of trust are scorned even among the most ignorant people. But when it comes to the
discussion of the acts of nations, there seems to be less clearness of conception, less uniformity of standard of right and wrong, honor and dishonor. It is necessary, therefore, in charging a government or nation with dishonorable conduct, to show that its moral standard ought in nowise to differ from the moral standard of an individual; that what is cowardly, cruel, base in a man, is cowardly, cruel, base in a government or nation. To do this, it is only needful
to look into the history of the accepted " Law of Nations," from the days of the Emperor Justinian until now.
The Roman jurisconsults employed as synonymous, says Wheaton, "the two expressions, `jus gentium,' that law which is found among all the known nations of the earth, and ' jus naturale,' founded on the general nature of mankind; nevertheless, of these two forms of the same idea, the first ought to be considered as predominant, since it as well as the `jus civile' was a positive law, the origin and development of which must be sought for in history."
Nations being simply, as Vattel defines them, "societies men united together," it is plain that, if there be such a thing as the "law of nature," which men as individuals are bound to obey, that law is also obligatory on the "societies" made up of men thus " united."
Hobbes divides the law of nature into that of man and that of States, saying, "The maxims of each of these laws are precisely the same; but as States, once established, assume personal properties, that which is termed the natural law when we speak of the duties of individuals is called the law of nations when applied to whole nations or States." The Emperor Justinian said, "The law of nations is common to the whole human race."
Grotius draws the distinction between the law of nature and the law of nations thus: " When several persons at different times and in various places maintain the same thing as certain, such coincidence of sentiment must be attributed to some general cause. Now, in the questions before us, that cause must necessarily be one or the other of these two-either a just consequence drawn from natural principles, or a universal consent; the former discovers to us the law
of nature, and the latter the law of nations."'
Vattel defines the "necessary law of nations" to be the "application of the law of nature to nations." He says: " It is `necessary,' because nations are absolutely bound to observe it. This law contains the precepts prescribed by the law of nature to States, on whom that law is not less obligatory than on individuals; since States are composed of men, their resolutions are taken by men, and the law of nations is binding on all men, under whatever relation they
act. This is the law which Grotius, and those who follow him, call the Internal Law of Nations, on account of its being obligatory on nations in the point of conscience."
Vattel says again: "Nations being composed of men naturally free and independent, and who before the establishment of civil societies lived together in the state of nature, nations or sovereign States are to be considered as so many free persons living together in the state of nature."
And again: "Since men are naturally equal, and a perfect equality prevails in their right and obligations as equally proceeding from nature, nations composed of men, and considered as so many free persons living together in the state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not in this respect produce any difference. A dwarf is as much a man as a giant; a small republic no less a sovereign
State than the most powerful kingdom."
In these two last sentences is touched the keynote of the true law of nations, as well as of the true law for individuals-justice. There is among some of the later writers on jurisprudence a certain fashion of condescending speech in their quotations from Vattel. As years have gone on, and States have grown more powerful, and their relations more complicated by reason of selfishness and riches, less and less has been said about the law of nature as a component and
unalterable part of the law of nations. Fine subtleties 'of definition, of limitation have been attempted. Hundreds of pages are full of apparently learned discriminations between the parts of that law which are based on the law of nature and the parts which are based on the consent and usage of nations. But the two cannot be separated. No amount of legality of phrase can do away with the inalienable truth underlying it. Wheaton and President Woolsey today say, in
effect, the same thing which Grotius said in 1615, and Vattel in 1758.
Says Wheaton: "International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces as consonant to justice from the nature of the society existing among independent nations."
President Woolsey says: "International law, in a wide and abstract sense, would embrace those rules of intercourse between nations which are deduced from their rights and moral claims; or, in other words, it is the expression of the jural and moral relations of States to one another.
"If international law were not made up of rules for which reasons could be given satisfactory to man's intellectual and moral nature, if it were not built on principles of right, it would be even less of a science than is the code which governs the actions of polite society."
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A Century of Dishonor,
By Helen Hunt Jackson, New York, Harper & Brothers, Franklin Square, 1885
A Century of Dishonor