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The Policy in General
In treating of the policy and methods adopted by the different
colonies in their dealings with the Indians in regard to their
lands, one object constantly kept in view will be to limit the
investigation strictly to this subject. No attempt, therefore, will
be made to enter into the general Indian history of colonial days,
nor to discuss the rights or wrongs of settlers or Indians. As
heretofore stated, the scope of the present work does not embrace
the moral element in the numerous transactions referred to, nor the
policy adopted; it is limited as strictly as possible to the facts
seen from the legal point of view and to the usual custom of the
nation or colony.
As the policy of the different colonies in the respect now treated
of was seldom, if ever, expressed at the outset, it must, to a large
extent, be ascertained from their practical dealings with the
natives in regard to their lands and their titles thereto. Reference
will be made, therefore, to some of the more important purchases,
cessions, grants, etc, by which possession of the lands of the
different colonies was obtained and to the laws enacted; but no
attempt to give a systematic list of the various cessions to or by
the colonies, or of all the laws relating to the subject, will be
made. The only object in view in presenting such as will be given is
to furnish data by which to judge of the method of treating with the
Indians and the policy adopted. Even where historians have clearly
defined the policy of a colony in this respect, the data are still
furnished that the reader may be enabled to form his own opinion,
for historians are often more or less influenced by the point of
view from which they write.
It may be remarked here in regard to the lands purchased of the
natives in the early days, that in many cases the bounds mentioned
in the deeds are so indefinite that it is impossible to define them
on a map. In some instances the limits actually adopted have been
preserved by tradition, but in many others they were so indefinite
that one purchase overlapped or duplicated or even triplicate, in
part, another. As examples of this class, the purchases by the
settlers of Connecticut may be referred to. This uncertainty hangs
about almost every one of the earlier colonial purchases. Even those
by William Penn, so lauded in history as examples of sturdy Quaker
honesty, must be included in this category, as their bounds and
extent are poorly defined and in some instances depend entirely on
tradition. The extent, in some cases, was decided by a day's travel
on foot or horseback, while some of the grants overlapped one
another.
A loose custom prevailed in some of the colonies of allowing
individuals to purchase from the Indians without sufficient
strictness as to the authoritative acknowledgment or recording of
such deeds of purchase. Many of these are known only traditionally,
others only through lawsuits which arose out of these claims. It is
next to impossible at this day to ascertain all these individual
purchases; moreover, it is not apparent that it would serve any good
purpose in this connection to give them were it possible to do so.
It has been stated repeatedly that the policy of the colonies was
the same as that afterward adopted by the United States. While this
may be true in a broad sense, there were differences in method which
had important bearings on the history of the different provinces. In
fact, the theory in regard to the Indian tenure was not precisely
the same throughout, as will become evident from a perusal of what
is presented. It will also be seen that the idea on which the
authorities based their proceedings was not always the same, those
of one colony looking chiefly to meeting the claims of the Indians,
while the main object in other cases was to obtain as much land as
possible, thus differing, though dealing fairly.
Virginia
Although the letters patent of James I to Sir Thomas Gage and
others for a two several colonies," dated April 10, 1606, and his
second charter, May 23, 1609, to "the Treasurer and Company of
Adventurers and Planters of the City of London for the first Colony
of Virginia," granted full and complete right in the land, "in free
and common socage," yet neither contains any allusion to the rights
or title of the natives. The third charter, granted the last named
company March 12, 1611-12, also fails to make any allusion to the
title of the Indians or to the mode of dealing with them.
The "instructions" given by the council of the London Virginia
Company to the first adventurers (1606) contains the following very
slight indication of the policy to be adopted in dealing with the
Indians: "In all your passages you must have great care not to
offend the naturals, if you can eschew it; and employ some few of
your company to trade with them for corn and all other lasting
victuals if you (they?) have any: and this you must do before that
they perceive you mean to plant among them."1
Burk,2 speaking of the London Company
and the nature of its government, summarizes its dealings with the
Indians as follows:
| At the coming of the
English, the Indians naturally enjoyed the best and most
convenient stations for fishing, and the most fertile
lands: But in proportion as new settlers came in, they
rapidly lost those advantages. In some cases the
colonists claimed by the right of conquest, and the
imaginary title conferred y the king's charter. In
general however, they acted on better principles, and
purchased from the heads of tribes, the right of soil,
in a fair and (as far as was practicable) in a legal
manner. In the treaty entered into between sir G.
Yeardley and Opechancanough, we find a sweeping clause,
granting to the English permission to reside and inhabit
at such places on the banks of certain rivers, which
were not already occupied by the natives.
'Tis true, the circumstances
of the parties admitted not a fair and legal purchase;
and after the massacre, the Indians were stripped of
their inheritance without the shadow of justice. |
The special items, however, upon which this verdict appears to
have been founded are brief and unsatisfactory. It is only after the
dissolution of the company in 1624 and the records of the, general
assembly are reached, that the policy of Virginia in regard to the
Indian title is clearly set forth.
According to Stith,3 Powhatan's
"hereditary countries were only Powhatan, Arrohatock, about twelve
miles down, which hath since been corrupted to Haddihaddocks,
Appamatock, Youghtanund, Pamunkey, and Mattapony, to which may be
added, Werowocomoco and Kiskiack, or as it hath since been called
Cheesecake, between Williamsburg and York. All the rest were his
Conquests; and they were bounded on the South by James river, with
all its Branches, from the Mouth to the Falls, and so across the
Country, nearly as high as the Falls of all the great Rivers over
Patowmack even to Patuxen in Maryland. And some Nations also on the
Eastern Shore owned Subjection to him."
In 1609 Smith purchased of Powhatan the place called Powhatan, which
had formerly been this chief's residence. The conditions of this
agreement, as given by Stith (page 104), were as follows: "That the
English should defend him against the Manakin; that he [Powhatan]
should resign to them the fort and the houses; with all that
country, for a proportion of copper," etc. The extent of territory
included under "all that country" is unknown.
It also appears from Stith (page 140) that in 1616 the Indians,
being much straitened for food, applied, through their chief, to Sir
Thomas Dale, then governor of the English colony, for corn.
| Sir Thomas Dale, among
the many Praises, justly due to his Administration, had
been particularly careful of the. Supplies of Life; and
had, accordingly, always caused so much Corn to be
planted, that the Colony lived in great Plenty and
Abundance. Nay, whereas they had formerly been
constrained, to buy Corn of the Indians Yearly, which
exposed them to much Scorn and Difficulty, the Case was
so much altered under his Management, that the Indians
sometimes applied to the English, and would sell the
very Skins from their Shoulders for Corn. And to some of
their petty Kings, Sir Thomas lent four or five hundred
Bushels; for Repayment whereof the next Year, he took a
Mortgage of their whole countries. |
Whether the Indians' claim that this was repaid was conceded, or
was. true, is not known. Nothing further than an application for
corn by Mr Yeardly and a refusal by the Indians to furnish it is
recorded.
In 1618 a party of Chickahominy killed a number of persons, and
complaint was made to Opechancauougb, who was their chief. In reply
he sent a basket of earth to the governor as an evidence that the
town of the aggressors was given to the English.
It appears incidentally from Burk's History that a treaty was
concluded with the Indians in 1636, fixing their boundary line, but
no particulars are given nor does he say anything more in regard to
it. In 1639-40 the Indians became restless and dissatisfied because
of the encroachments made upon their lands by the vast and
indiscriminate grants made by Hervey. These encroachments were on
the lands secured to the Indians by the treaty of 1636, and led to a
war with. Opechancanough.l However, it seems that at some time
between 1640 and 1642 peace was concluded through the general
assembly. In this case, according to Burk, it was made separately
with the heads of the tribes and in a spirit of humanity. It was
attained "by mutual capitulations and articles agreed and concluded
on in writing." But these do not appear in any of the published
records, therefore it is impossible to state what reference was made
to lands or boundaries.
By an act of the "Grand Assembly," October 10, 1649, it was ordered
as follows:4
Act. l. Art. 2. That it
shall be free for the said Necotowance ["King" of the
Indians] and his people, to inhabit and hunt on the
north side of Yorke River, without any interruption from
the English. Provided that if hereafter, It shall be
thought fitt y the Governor and Council to permitt any
English to inhabitt from Poropotanke downewards, that
first Necotowance be acquainted therewith.
Art. 3. That Necotowance and his people leave free that
tract of land between Yorke river and James river, from
the falls of both the rivers to Koquotan, to the English
to inhabitt on, and that neither he the said Necotowance
nor any Indians do repaire to or make any abode upon the
said tract of land, upon pain of death. |
An act was passed July 5, 1653, securing such lands on York river
as he should make choice of to Totopotomoy, the successor of
Opechaneanough, as follows:
| The order of the last
Assembly in the busines relateing to land in York River
desired by Tottopottomoy, as information by some
perticular members of this Assembly is now represented,
is ordered to be and remaine, in force as formerly,
Provided he lives on the same; but if lie leaves it then
to devolve to Coll. William Clayborne, according to
former orders which gave him libertie to make his
choice, whether he would have Ramomak, or the land where
now he is seated, and that he appear in person before
the Governor and Council to make his choice the next
quarter courte which of the two seates he will hold, and
Capt. John West, and Mr. William Hockaday are enabled to
give a safe conduct to the said Tottopottomoy and his
Indians for their coming to towne, and his returne home.
And the commissioners of York are required that such
persons as are seated upon the land of Pamunkey or
Chickahominy Indians be removed according to a late act
of Assembly made to that purpose, And Coll. John Fludd
to go to Tottopottomoy to examine the proceedings of
business and to deliver it upon his oath.5 |
At the same time the commissioners of Gloster (the statute says
Gloster but Burk says York) and Lancaster counties were directed "to
proportion the Indians inhabiting the said counties their several
tracts of land . . . and to set and assign them such places and
bounds to hunt in as may be convenient both for the inhabitants and
Indians."
By act 4 of the same assembly the commissioners of Northampton
county were empowered "to take acknowledgment of the Indians in
their county for sale of their lands.' But this was to be done only
on condition that a majority of the Indians desired it, and that the
terms were just. This policy of granting to county commissioners the
right to purchase Indian lands was soon found to lead to fraud and
injustice, hence the passage of the following laws relating to the
Sales
by Indians.6
The first declaration of general policy in respect to Indian lands
is found in the act of March 10, 1655, which is as follows:
| Act. 1. What lands the
Indians shall be possessed of by order of this or other
ensueing Assemblyes, such land shall not be alienable by
them the Indians to any man de future, for this will
putt vs to a continual) necessity of allotting them new
lands and possessions and they will be always in fears
of what they hold not being able to distinguish between
our desires to buy or inforcement to have, in case
their. grants and sales be desired; Therefore be it
enacted, that for the future no such alienations or
bargaines and sales be valid without the assent of
Assembly. This act not to prejudice any Christian who
hath land allready granted by pattent.7 |
The following acts of the same general tenor are extracted from
Hening's Statutes, and need no comment:
[March 13th, 1657-8.
Act. 51. Enacted:] That there be no grants of land to
any Englishman whatsoever (de future) until the Indians
be first served with the proportion of fifty acres of
land for each bowman; and the proportion for each
perticular towne to lie together, and to be surveyed as
well woodland as cleered ground, and to be layd out
before pattented, with libertie of all waste and
unfenced land for hunting for the Indians. Further
enacted, that where the land of any Indian or Indians
bee found to be included in any pattent allready granted
for land at Rappahannock or the parts adjacent, such
pattentee shall either purchase the said land of the
Indians or relinquish the same, and be therefore allowed
satisfaction by the English inhabitants of the said
places.8
[Act 73, same assembly:] All the Indians of this colony
shall and may hold and keep those seates of land which
they now have, and that no person or persons whatsoever
be suffered to entrench or plant upon such places as the
said Indians claime or desire until full leave from the
Governor and Council or commanders for the place; Yet
this act not to be extended to prejudice those English
which are now seated with the Indiana' former consent
unless upon further examination before the Grand
Assemblie cause shall be found for so doeing. Further
enacted. That the Indians as either now or hereafter
shall want seates to live on, or shall desire to remove
to any places void or untaken up, they shall be assisted
therein, and order granted them, for confirmation
thereof, And no Indians to sell their lands but at
quarter courtes, And that those English which are lately
gone to seate neare the Pamunkies and the Chichominyes
on the north side of Pamunkie river shall he recalled
and such English to choose other seates else where, and
that the Indians as by a former act was granted them,
shall have free liberty of hunting in the woods without
the English fenced plantations, these places excepted
between Yorke river and James river and between the
Black water and the Manakin towns and James river, and
no pattent shall be adjudged valid which hath lately
passed or shall pass contrary to the sense of this act,
Nor none to be of force which shall intrench upon the
Indians' lands to their discontent without express order
for the same.9 |
The act of March 13, 1658, same assembly, ratifies the grant of
the "Wiceacomoco Indians" of certain lands belonging to them in
Northumberland county to the "honorable Samuel Mathewes," governor.
The act of October 11, 1660, authorizes the governor to have
surveyed and laid off for the "Accomacke" Indians, on the east side
of the bay, "such a proportion of land as shall be sufficient for
their maintenance, with hunting and fishing excluded." This land was
to be secured to the Indians, but they were to have no power to
alienate it to the English.
An act passed March 23, 1661, brings to view the difficulty
sometimes encountered by private purchases which were made before
the passage of the act of March 10, 1655, or in disregard of it. It
is as follows:
Upon the petition of
Harquip the Mangai of the Chickabomini Indians to have
all the lands from Mr. Malorys bounds to the head of
Mattaponi river & into the woods to the Pamaunkes It is
accordingly ordered that the said land be confirmed to
the said Indians by pattent, and that no Englishman
shall upon any pretence disturbe. them in their said
bounds nor purchase it of them unless the major part of
the great men shall freely and voluntarily declare their
consent in the quarter court or assembly.
Whereas a certain grant hath been made to the
Chickahomini Indians of certain lands in which tract
Major General Manwaring Hamond claimeth a devident of
2,000 acres granted him by pattent, It is ordered, that
the same Major General Hamond be desired to purchase the
same of the Indians or to procure their consent for the
preservation of the countries honor and reputation.10 |
Numerous disputes having arisen between the English and the
Indians in regard to land purchases, and frequent complaints having
been made by the latter of encroachments upon their territory, the
following act was passed in 1660:
| Act 13. Whereas the mutual discontents, complaints,
jealousies and fears of English and Indians proceed
chiefly from the violent intrusions of diverse English
made into their lands, The governor, counsel and
burgesses enact, ordain and confirm that for the future
no Indian king or other shall upon any pretence alien
and sell, nor no English for any cause or consideration
whatsoever purchase or buy any tract or parcel of land
now justly clammed or actually possest by any Indian or
Indians whatsoever; all such bargains and sales
hereafter made or pretended to be made being hereby
declared to be invalid, void and null, any
acknowledgement, surrender, law or custom formerly used
to the contrary notwithstanding.11 |
This is probably the act referred to by Charles Campbell12
where he makes the following statement:
| The numerous acts relating to the Indians were
reduced into one; prohibiting the English from
purchasing Indian lands; securing their persons and
property; preventing encroachments on their territory;
ordering the English seated near to assist them in
fencing their corn fields; licensing them to oyster,
fish, hunt and gather the natural fruits of the country;
prohibiting trade with them without license, or
imprisonment of an Indian king without special warrant;
bounds to be annually defined; badges of silver and
copper plate to be furnished to Indian kings; no Indian
to enter the English confines without a badge, under
penalty of imprisonment, till ransomed by one hundred
arms length of roanoke (Indian shell money); Indian
kings, tributary to the English, to give alarm of
approach of hostile Indians; Indians not to be sold as
slaves, &c. |
By the act of October 10, 1665, the bounds of the Indians on the
south side of James river were fixed as follows: CL From the beads
of the southern branches of the blackwater to the Appomatuck
Indians, and thence to the Manokin Town." This boundary was more
accurately fixed in 1691, as will later be shown.
After the death of Opechancanough, no chief of sufficient prestige
and authority to hold the Indians in confederation having arisen, a
long peace followed. Several of the tribes retired westward and
those which remained, reduced in numbers and wanting concert,
lingered on the frontiers, and exchanged with the settlers their
superfluous products at stated marts. This peace, however, was
broken in 1675. The Indians at the head of Chesapeake bay and tribes
farther south made sudden and furious inroads upon the frontier
settlements "marked by devastation and blood."13
On the 6th of June, 1676, during the war which ensued, the following
act was passed:
| Act 3. Whereas this
country is now engaged in a warr against the .Indians,
and will thereby inevitably be at great cost and charges
in prosecuting the same, and whereas at or about the
last conclusion of peace with the Indians, certain great
quantities, of land was assigned and sett apart, for
them, which lands were they sold for the use of the
country would in some measure help to defray the public
charge aforesaid, Therefore enacted and ordained by
Governour, council and burgesses of this grand assembly,
and by the authority of the same, that all lands
whatsoever sett apart for Indians in the last conclusion
of peace with them and other Indian lands as now are, or
hereafter shall be by them deserted, bee not granted
away by patents to any particular person or persons, but
that the same be reserved, and by due forme of law
vested on the country, and dispose to the use of the
public towards defraying the charge of this warr.
Provided always that this act nor any. thing therein
contained shall prejudice any legal grants heretofore
made to any person or persons whatsoever of any part or
parcel of the said lands, and all such. Indian lands as
have bin pattented since the peace aforesaid, and before
such desertion shall be held and deemed to be illegally
pattented.14 |
The act of April 16, 1691, above referred to as determining the
boundary of the Indian territory south of James river, is as
follows:
| Forasmuch as y a clause of the 8th act of assembly
made at James Citty October the tenth, 1665, it is
enacted that the bounds of the Indians on the south side
James river, be from the heads of the Southern branches
of the Black water to the Appomatuck Indians, and thence
to the Manokin Town, for the better explaining and
ascertaining the bounds betwixt the English and Indians
on the south side of James River, Be it enacted. That a
line from the head of the chief or principal branch of
the black water, to the upper part of the old
Appamattocks Indian Town field, and thence to the upper
end of Manokin Town be judged, deemed; held and taken,
to be the said bounds, and that the right honorable the
lieutenant Governour, with the advice of the council bee
requested to appoint some surveyor or surveyors to lay
out, ascertain and plainly mark the said lines, and that
all patents or other grants of any lands laying without
the said bounds be, and hereby are declared void and
null to all intents and purposes as if the same had
never been granted.15 |
In 1722 Governor Spotswood concluded a treaty with the Six
Nations by which they agreed never to appear to the east of the Blue
ridge or south of the Potomac. But this boundary line was not
sufficient to arrest the westward progress of English settlement,
for it was not long before hardy pioneers had located themselves
west of the dividing ridge. This, as a natural consequence, angered
the Indians, and collisions ensued.
However, on July 31, 1743, a treaty of peace was concluded at
Lancaster, Pennsylvania, between Virginia, Maryland, and
Pennsylvania on the one hand and the Six Nations on the other, in
which, among other agreements, was one by which these Indians, for
the consideration of four hundred pounds, reluctantly relinquished
the country lying westward from the frontier of Virginia to Ohio
river.
1 E. D. Neill, History of the London Virginia
Company, p. 8; Smith's Works, Arbor's edition, The English Scholar's
Library, No. 16, p. xxxv.
2 History of Virginia (1804), vol., I, p. 312,
appendix.
3 History of Virginia, Sabin's reprint, pp. 53-54.
4 Burk, History of Virginia, vol. m, p. 53.
5 Hening's statutes at Large, vol. 1 (1533), pp.
323-324.
6 Ibid., p. 380.
7 Burk, History of Virginia, vol, n, p. 102.
8 Ibid., p. 456-457.
9 Hening's statutes at Large, vol. I, p. 396.
10 Ibid., p. 467.
11 Hening's Statutes at Large, vol. n, p. 34. 2
Ibid., p. 138.
12 History of the Colony and Ancient Dominion of
Virginia (1847), p. 77
13 Burk, History of Virginia, vol. u, pp. 155-157.
14 Hening's statutes at Large, vol. n, p. 351.
15 Hening's Statutes at Large, vol, in, p. 84.
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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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