|
|
Perhaps the best estimate of the Indian population of the United
States (exclusive of Alaska), at different periods up to 1876, are
those given by Honorable John Eaton.1
His summary is as follows:
| 1820 |
Report of Morse on Indian Affairs |
471,036 |
| 1825 |
Report of Secretary of War |
129,366 |
| 1829 |
Report of Secretary of War |
312,930 |
| 1834 |
Report of Secretary of War |
312,610 |
| 1836 |
Report of Superintendent of Indian Affairs |
253,464 |
| 1837 |
Report of Superintendent of Indian Affairs |
302,498 |
| 1850 |
Report of H.R. Schooleraft |
388,229 |
| 1853 |
Report of United States Census, 1850 |
400,764 |
| 1855 |
Report of Indian Office |
314,622 |
| 1857 |
Report of II. R.Schoolcraft |
379,264 |
| 1860 |
Report of Indian Office |
254,300 |
| 1865 |
Report of Indian Office |
294,574 |
| 1870 |
Report of United States Census |
313,712 |
| 1870 |
Report of Indian Office |
313,371 |
| 1875 |
Report of Indian Office |
305,068 |
| 1876 |
Report of Indian Office |
291,882 |
Examining these estimates at the different dates, we see that the
average, in round numbers, is 315,000. Now, assuming this to be a
correct estimate, and allowing five persons to a family, this would give
63,000 as the whole number of Indian families in the United States.
Assuming the area of the United States, exclusive of Alaska, to be
3,025,000 square miles, this would give to each Indian family a manor of
48 square miles, or 30,720 acres. Now, supposing, for further
illustration, that the families were distributed uniformly over the
whole territory, the state of Rhode Island, which now supports a
population of 345,506 persons, or 69,101 families (allowing five persons
to a family), would be apportioned among 26 Indian families; the state
of Delaware would be allotted to but 43, and the whole state of New
York, which now supports more than a million families, would be assigned
to 1,025 lordly savages.
It is apparent, therefore, that the requirements of the human race and
the march of civilization could not permit such an apportionment of the
soil of the American continent as this, even were the estimates trebled.
It is true that practically no such equal distribution of the lands as
that mentioned would be possible. Moreover, it is also true that some
portions are unsuitable for the ordinary purposes of life; but the
supposition given will be understood as an illustration of the theory of
the Indian claim, and is correct in principle. That a population whose
territorial needs would be amply supplied by the area embraced in the
single state of Illinois should, on the score of being the first
occupants of the country, be allowed the exclusive use of the whole
territory of the United States is inconsistent with any true theory of
natural rights. Moreover, it is not required by humanity, religion, nor
any principle of human rights. This must be conceded. But what is the
necessary consequence of such concession?
There were few, if any, areas in the United States which the Indians did
not claim. If this claim could not be admitted in its entirety as a just
and valid one; if it could not be admitted as a just bar to any
settlements by other peoples; if civilization could not consent to such
a claim, where should the restriction begin? How should it be
accomplished? Who should fix the metes and bounds and who decide the
proper apportionment? This brings us back precisely to the point which
the European settlers on the continent were forced to meet, and where
the governments to which they pertained were forced to act, whether they
did so in accordance with a settled theory and policy or not.
Foreign Policy Toward The Indians
In the preceding section attention is called to the principle maintained
by the United States and by other civilized governments in regard to the
rights of the Indians to the soil. As theory and practice are not
necessarily identical and are sometimes quite variant from each other,
reference will now be made to the policy and methods adopted in putting
into practical operation this theory. However, to cover the range of
acquisitions from the Indians of land within the bounds of the United
States, it will be necessary to refer not only to the policy of the
Government since the adoption of its constitution, but also to that of
the colonies and of the other powers from which territory has been
obtained by the United States.
It will perhaps be best to begin with the policy of the powers from
which territory has been obtained by the United States since the
adoption of the constitution. By so doing the policy adopted by the
colonies can be connected with that of the United States without being
interrupted by reference to that of other governments.
The Spanish Policy
Although the cruelty of the Spaniards in their treatment of the Indians
during the conquest of Mexico and Central America is proverbial, yet an
examination of the laws of Spain and ordinances of the King show that
these acts were not only not warranted thereby, but in direct conflict
therewith. So early as 1529, in the commission constituting Cortes
captain-general of New Spain, he was directed to give his principal care
to the conversion of the Indians; that he should see that no Indians be
given to the Spaniards to serve them; that they paid such tribute to His
Majesty as they might easily afford, and that there should be a good
correspondence maintained between the Spaniards and the Indians and no
wrong offered to the latter either in their goods, families, or persons.
Bishop Don Sebastian Ramirez, who was acting governor under Cortes
subsequent to his commission, earnestly endeavored, be it said to his
honor, to put into practice these humane orders. We are informed by
Antonio de Herrera2 that he not only
abrogated the enslavement of any Indians whatsoever, but also took care
that none of them should be made to carry burdens about the country, "
looking upon it as a labor fit only for beasts." He was no less exact in
the execution of all the ordinances sent by the Council of Spain for the
ease, improvement, and conversion of the natives. " By that means," adds
the old historian, "the Country was much improv'd and all Things carried
on with Equity, to the general Satisfaction of all good Men."
The laws enacted for the government of the "Kingdoms of the Indies" were
still more pointed in the same direction, and fully recognized the
rights of the Indians to their landed possessions. However, as will
become apparent from an examination of these, no claim by the natives to
unoccupied lands or uninhabited territory appears to have been
recognized. Such territory was designated " waste lands," and formed
part of the royal domain. As evidence of this the following brief
extracts from the Recopilacion de las Leyes de los Reynos de las
Indias are presented:3
| We decree and command,
that the laws and good customs anciently in force in the
Indies, for their good government and police, and the
usages and customs observed and retained from the
introduction of Christianity among them, which are not
repugnant to our sacred religion, or to the laws
contained in this book, and to those which have been
framed anew, be observed and fulfilled; and it having
become expedient to do so, we hereby approve and confirm
them, reserving to ourselves the power of adding thereto
whatever we shall think fit and will appear to us
necessary for the service of God our Lord, and our own,
and for the protection of, and Christian police among,
the natives of those Provinces, without prejudice to
established usages among them, or to their good and
wholesome customs and statutes.-Lib. II, tit. 1, law 4,
vol. It being our
wish that the Indians be protected and well treated, and
that they be not molested nor injured in their person or
property; We command that in all cases, and on all
occasions, when it shall be proposed to institute an
inquiry, whether any injury is to accrue to any person
in consequence of any grant of land, whether for
tillage, pasture, or other purposes, the Viceroys,
Presidents, and Judges shall cause summonses to be
directed to all persons whom it may really concern, and
to the Attorneys of our Royal Audiences, wherever
Indians may be interested, in order that all and every
person may take such measures as may be expedient to
protect his rights against all injuries which might
result there from.-Lib. II, tit. 18, law 36, vol. I, p.
412.
Whereas some grazing farms, owned y Spaniards for the
use of their cattle, have been productive of injury to
the Indians, y being located upon their lands, or very
near their fields and settlements, whereby said cattle
eat and destroy their produce and do them other damage:
We command that the Judges who shall examine the lands,
make it their duty to visit such farms, without previous
request to do so, and ascertain whether any injury
accrues there from to the Indians or their property;
and, if so, that, after due notice to the parties
interested, they forthwith, and by summary or legal
process, according as they may think most fit, remove
them to some other place without damage or prejudice to
any third person.-Lib. II, tit. 31, law 13, vol. I, p.
484.
Should the natives attempt to oppose the settlement [of
a colony], they shall be given to understand that the
intention in forming it, is to teach them to know God
and His holy law, y which they are to be saved; to
preserve friendship with them, and teach them to live in
a civilized state, and not to do them any harm or take
from them their settlements. They shall be convinced of
this y mild means, through the interference of religion
and priests, and of other persons appointed by the
Governor, y means of interpreters, and y endeavoring y
all possible good means, that the settlement may be made
in peace and with their consent; and if,
notwithstanding, they do withhold their consent, the
settlers, after having notified them pursuant to Law 9,
Tit. 4, Lib. 3, shall proceed to make their settlement
with out taking any thing that may belong to the
Indians, and without doing them any greater damage than
shall be necessary for the protection of the settlers
and to remove obstacles to the settlement.-Lib. IV, tit.
7, law 23, vol. II, p. 24.
We command that the farms and lands which may be granted
to Spaniards, be so granted without prejudice to the
Indians; and that such as may have been granted to their
prejudice and injury be restored to whoever they of
right shall belong. Lib. IV, tit. 12, law 9, vol. II, p.
41.
In order to avoid the inconveniences and damages
resulting from the sale or gift to Spaniards of
caballerias or peonias, and other tracts of land, to the
prejudice of the Indians, upon the suspicious testimony
of witnesses, we order and command, that all sales or
gifts shall be made before the Attorneys of our Royal
Audioncias, to be summoned for that purpose, who shall
be bound to examine, with due care and diligence, the
character and depositions of witnesses; and the
Presidents and Audiences, where they shall administer
the government, shall give or grant such lands y the
advice of the Board of Treasury, where it shall appear
that they belong to us, at auction, to the highest
bidder, as other estates of ours, and always with an eye
to the benefit of the Indians. And where the grant or
sale shall be made y the Viceroys, it is our will that
none of the officers above mentioned shall interfere.
Upon the letters which shall be granted to the parties
interested, they shall sue out confirmations within the
usual time prescribed in cases of grants of Indians
[eneomiendas de Indios].-Lib. IV, tit. 12, law 16, vol.
II, p. 43.
In order more effectually to favor the Indians, and to
prevent their receiving any injury, we command that no
composition shall be admitted of lands which Spaniards
shall have acquired front Indians, in violation of our
royal letters and ordinances, and which shall be held
upon illegal titles: it being our will that the
Attorneys-Protectors should proceed according to right
and justice, as required y letters and ordinances, in
procuring such illegal contracts to be annulled. And we
command the Viceroys, Presidents, and Audiences to grant
them their assistance for its entire execution.-Lib. IV,
tit. 12, law 17, vol. II, p. 43.
We command that the sale, grant, and composition of
lands be executed with such attention, that the Indians
shall be left in possession of the. full amount of lands
belonging to them, either singly or in communities,
together with their rivers and waters; and the lands
which they shall have drained or otherwise improved,
whereby they may, by their own industry, have rendered
them fertile, are reserved in the first place, and can
in no case be sold or aliened. And the Judges who shall
have been sent thither, shall specify what Indians they
may have found on the land, and what lands they shall
have left in possession of each of the elders of tribes,
caciques, governors, or communities.-Lib. IV. tit. 12,
law 17 [18], vol. II, p. 44.
No one shall be admitted to make composition of lands
who shall not have been in possession thereof for the
term of ten years, although he should state that he is
in possession at the time; for such circumstance by
itself is not sufficient; and communities of Indians
shall be admitted to make such compositions in
preference to other private individuals, giving them all
facilities for that purpose.-Lib. IV, tit. 12, law 19,
vol. II, p. 44.
Whereas the Indians would sooner and more willingly be
reduced into settlements, if they were allowed to retain
the lands and improvements which they may possess in the
districts from which they shall remove; we command that
no alteration be made therein, and that the same be left
to them to be owned as before, in order that they may
continue to cultivate them and to dispose of their
produce.-Lib. VI, tit. 3, law 9, vol. II, p. 209. |
According to the royal ordinance given at San
Lorenzo el Real, October 15, 1754, it was decreed that, " The
Judges and Officers, to whom jurisdiction for the sale and
composition of the royal lands [realengos] may be sub-delegated,
shall proceed with mildness, gentleness, and moderation, with
verbal and not judicial proceedings, in the case of those lands
which the Indians shall have possessed, and of others when
required, especially for their labor, tillage, and tending of
cattle."
It appears, however, that the Spanish government
never accepted the idea that the Indians had a possessory right
to the whole territory, but only to so much as they actually
occupied, or that was necessary for their use. This policy
toward the natives seems to be indicated by the following
extract:
| Whereas we have
fully inherited the dominion of the Indies; and
whereas the waste lands and soil which were not
granted by the Kings, our predecessors, or by
ourselves, in our name, belong to our patrimony and
royal crown, it is expedient that. all the land
which is held without just and true titles be
restored, as belonging to us, in order that we may
retain, before all things all the lands which may
appear to us and to our Viceroys, Audiences, and
Governors, to be necessary for public squares,
liberties, [exidos,] reservations, [propios,]
pastures, and commons, to be granted to the villages
and councils already settled, with due regard as
well to their present condition as to their future
state, and to the increase they may receive, and
after distributing among the Indians whatever they
may justly want to cultivate, sow, and raise cattle,
confirming to them what they now hold, and granting
what they may want besides all the remaining land
may be reserved to us, clear of any incumbrance, for
the purpose of being given as rewards, or disposed
of according to our pleasure. Lib. IV, tit. 12, law
14, vol. II, p. 42. |
The same idea appears to be embraced in law
18, lib. 4, tit. 12, given above; also in the following
sections in the " Regulations of intendant Morales regarding
grants of land:"
24. As it is
impossible, considering all the local
circumstances of these provinces, that all the
vacant lands belonging to the domain should be
sold at auction, as it is ordained by the law
15th, title 12th, book 4th of the collection of
the laws of these Kingdoms, the sale shall be
made according as it shall be demanded, with the
intervention of the King's Attorney for the
Board of Finances, for the price they shall be
taxed, to those who wish to purchase;
understanding, if the purchasers have not ready
money to pay, it shall be lawful for them to
purchase the said lands at redeemable quitrent,
during which they shall pay the five per cent.
yearly.
31. Indians who possess lands within the limits
of the Government shall not, in any manner, be
disturbed; on the contrary, they shall be
protected and supported; and to this, the
Commandants, Syndics, and Surveyors, ought to
pay the greatest attention, to conduct
themselves in consequence.
32. The granting or sale of any lands shall not
be proceeded in without formal information
having been previously received that they are
vacant; and, to avoid injurious mistakes, we
premise that, beside the signature of the
Commandant or Syndic of the District, this
information ought to be joined y that of the
Surveyor, and of two of the neighbors, well
understanding. If, notwithstanding this
necessary precaution, it shall be found that the
land has another owner besides the claimant, and
that there is sufficient reason to restore it to
him, the Commandant, or Syndic, Surveyor, and
the neighbors, who have signed the information,
shall indemnify him for the losses he has
suffered.4 |
In 1776 one Maurice Conway, who had made a
purchase on New Orleans island from the Houma Indians, which
purchase had been approved, asked of the Spanish authorities an
additional grant by which he might obtain some timber land
adjoining thereto. This was granted by Onzaga with the following
restrictions: "Provided it be vacant, and that no injury is
thereby done to any of the adjoining inhabitants; to which
effect he shall establish his boundaries and limits; and of the
whole proceedings he shall make a process verbal, of which he
shall make a return to us, signed by himself and the parties, in
order to issue the complete title, in due form, to the
claimant."
In carrying out the orders to mark off this grant the Houma
chief was taken upon the ground in order that he might see that
the lands of his tribe were not encroached on.
It does not appear that the Spanish government at any time
adopted the policy of purchasing the Indian title, though
clearly and distinctly recognizing it, to the lands they
occupied. It, however, seems to have been a rule that the
Indians should be compensated for their village sites and lands
in actual use which were taken from them. This, however, was
done usually by granting them other lands. Grantees' were
usually the purchasers of the Indian title where it was deemed
necessary that this should be extinguished.
The foregoing laws and ordinances applying
generally to the Spanish possessions known as "New Spain" were,
of course, equally applicable to Louisiana and Florida and other
portions of territory acquired by the United States, directly or
indirectly, from Spain. However, as West Florida was a
dependency of Louisiana, which most of the time had its own
government, and East Florida was attached to the intendency of
Cuba, there were some differences in the local administration of
the laws and in the customs adopted in dealing with the Indians.
1 Ibid. for 1877
2 Historia General. dec. III bk. 7, chap 3 (Steven's
translation)
3 From Laws, U.S. Treaties. etc. Respecting Public
Lands Vol II, 1836
4 Laws Relating to Public Lands, 1928, pp 984-985
This site includes some historical
materials that may imply negative stereotypes reflecting the culture
or language of a particular period or place. These items are
presented as part of the historical record and should not be
interpreted to mean that the WebMasters in any way endorse the
stereotypes implied
First annual Report of the Bureau of Ethnology,
1879-80
Indian
Land Cessions in the United States
 |
