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The decision in this case is of course conclusive in regard to
the nature of the Indian title to lands as held by our Government.
Nevertheless, a brief reference to the history of the subject
preceding the date of decision (1823) will be appropriate here
before alluding to the policy adopted in regard to the
extinguishment of this title.
As early as September 22, 1783, while yet operating under the
Articles of Confederation, the following " proclamation" was ordered
by Congress.1
| Whereas by the 9th of
the Articles of Confederation, it is among other things
declared, that "the United States in Congress assembled
have the sole and exclusive right and pour 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." And whereas it is
essential to the welfare of the United States, as well
as necessary for the maintenance of harmony and
friendship with the Indians, not members of any of the
States, that all cause of quarrel or complaint between
them and the United States or any f them, should be
removed and prevented; therefore, the United States in
Congress assembled, have thought proper to issue their
proclamation, and they do hereby prohibit and forbid all
persons 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 is, moreover, declared that every such purchase or settlement,
gift or cession, not having the authority aforesaid, is null and
void, and that no right or title will accrue in consequence of any
such purchase, gift, or settlement.
By the eighth section of the act of Congress of March 1, 1793,
entitled "An act to regulate trade and intercourse with the Indian
tribes," the same principle was enacted into law, as follows:
| And be it
further enacted, That no purchase or grant of lands,
or of any title or claim thereto, from any Indians, or
nation or tribe of Indians, within the bounds of the
United States, shall be of any validity, in law or
equity, unless the same be made y a treaty or convention
entered into pursuant to the constitution. And it shall
be a misdemeanor in any person, not employed under the
authority of the United States in negotiating such
treaty or convention, punishable y fine not exceeding
one thousand dollars, and imprisonment not exceeding
twelve months, directly or indirectly to treat with any
such Indians, nation or tribe of Indians, for the title
or purchase of any lands by them held or claimed:
Provided, nevertheless, That it shall be lawful for the
agent or agents of any State, who may be present at any
treaty held with the Indians, under the authority of the
United States, in the presence, and with the approbation
of, the Commissioner or Commissioners of the United
States appointed to hold the same, to propose to, and
adjust with, the Indians, the compensation to be made
for their claims to lands within such State, which shall
be extinguished by the treaty.2 |
This is repeated in section 12 of the act of May 19, 1796,
entitled "An act to regulate trade and intercourse with the Indian
Tribes, and to preserve peace on the frontier;" also in section 12
of the act of March . 30,1802. By section 15 of the act of March 26,
1804, "erecting Louisiana into two Territories, and providing for
the temporary government thereof," it is ordered that:
| The President of the
United States is hereby authorized to stipulate with any
Indian tribes owning lands on the East side of the
Mississippi, and residing thereon, for an exchange of
lands the property of the United States, ou the West
side of the Mississippi, in case the said tribe shall
remove and settle thereon; but, in such stipulation, the
said tribes shall acknowledge themselves to be under the
protection of the United States, and shall agree that
they will not hold any treaty with any foreign Power,
individual State, or with the individuals of any State
or Power; and that they will not sell or dispose of the
said lands, or any part thereof, to any sovereign Power,
except the United States, nor to the subjects or
citizens of any other sovereign Power, nor to the
citizens of the United States. And in order to maintain
peace and tranquility with the Indian tribes who reside
within the limits of Louisiana, as ceded y France to the
United States, the act of Congress, passed on the
thirtieth day of March, one thousand eight hundred and
two, entitled "An act to regulate trade and intercourse
with the Indian tribes, and to preserve peace on the
frontiers," is hereby extended to the Territories
erected and established y this act; and the sum of
fifteen thousand dollars, of any money in the Treasury,
not otherwise appropriated y law, is hereby
appropriated, to enable the President of the United
States to effect the object expressed in this section.3 |
As this law was not to take effect until October 1, 1804, it was
provided that until this date the act passed October 31, 1803,
entitled "An act to enable the President of the United States to
take possession of the territories ceded by France to the United
States . . . and for the temporary government thereof;" was to
remain in force. All rights of the Indians within the limits of
Louisiana which existed under the French control remained,
therefore, under United States authority until October, 1804.
To complete the chain we note the fact that, by article 6 of the
treaty of April 30, 1803, by which France ceded Louisiana to the
United States, the latter promised "to execute such treaties and
articles as may have been agreed between Spain and the tribes and
nations of Indians, until, by mutual consent of the United States
and the said tribes or nations, other suitable articles shall have
been agreed upon."
These acts and treaties indicate, and in fact form, steps in the
policy of the United States in its dealings with the Indians in
reference to their lands, and will be noticed in this connection
hereafter. The object at present in referring to them is only to
show the theory of the Government in regard to the Indian title.
It is clear, therefore, that although the United States has always
conceded to the Indians the usufruct or right of occupancy to such
lands as they were in possession of, yet they have always held the
theory of the European powers, and claimed that the absolute right
to the soil was in the Government.
However, as will be seen when allusion is made to the policy of the
nations in their dealings with the Indians, there was some
difference in regard to the extent of their right or title. This was
limited by some of the governments to the' territory occupied, while
by others, as the United States, it was usual to allow it to extend
to the territory claimed, where the boundaries between the different
tribes were understood and agreed on. It would seem, in fact, that
the United States proceeded on the theory that all the land was held
by natives. A single instance occurs to the writer at present where
land was taken possession of as waste or without an owner. This is
mentioned by Mr Royce in his remarks under schedule number 432.
The right of occupancy in the Indians, until voluntarily
relinquished or extinguished by justifiable conquest, being
conceded, it became necessary on the part of the Government to adopt
some policy to extinguish their right to such territory as was not
necessary for their actual use.
As a natural corollary of this theory arose the question, With whom
shall the Government treat? The Indians having no general government
or regular political organization, but consisting of numerous
independent tribes in a state of savagery, the usual policy of
civilized nations in a case of conquest could not be adopted. As
their claims were those of tribes or communities, and not
individuals in severalty, it followed as a matter of necessity that
the only policy which the Government could adopt was to recognize
them as quasi and dependent, distinct political communities, or
nations, or half sovereign states, and treat them as such.
It has been said that the method of regarding them as distinct
peoples or nations and treating with them as such is a "legal
fiction." Nevertheless, if we study carefully all the circumstances
which surround the case, and the pressing necessities of the
Republic in its early days, we are likely to be convinced that it
was not the part of wisdom then to hamper the straggles for national
life with theoretic lines or legal technicalities, which stood in
the way of practical progress. Humanity is an element which should
attend every step of governmental as well as of individual progress,
but political theories must be broadened, restricted, or varied in
accordance with new and imperative necessities which arise.
It is doubtless true that the recognition of the Indian tribes as
distinct nationalities, with which the Government could enter into
solemn treaties, was a legal fiction which should be superseded by a
more correct policy when possible. But necessity often makes laws,
and in this instance forced the Government to what was, in its early
days, probably the hest possible policy in this respect, consistent
with humanity, which it could have adopted.
A doubt has also been expressed as to whether the United States
or any European power could, with perfect honesty and integrity,
purchase lands of the natives under their care and protection.
Bozman;4 who expresses this doubt, bases
it on the following considerations:
| First, it is not a clear
proposition that savages can, for any consideration,
enter into a contract obligatory upon them. They stand
by the laws of nations, when trafficking with the
civilized part of mankind, in the situation of infants,
incapable of entering into contracts, especially for the
sale of their country. Should this be denied, it may
then be asserted that no monarch of a nation (that is,
no sachem, chief, or headmen, or assemblage of sachems,
etc.) has a power to transfer y sale the country, that
is, the soil of the nation, over which they rule. |
That the Indians of the United States have been and are still
considered wards of the Government must be conceded. It also must be
admitted that, as a general rule of law, wards can not divest
themselves of their title to land except through the decree of court
or some properly authorized power. But in the case of the Indians
the Government is both guardian and court, and as there is no higher
authority to which application can be made, its decision must be
final, otherwise no transfer of title would be possible, however
advantageous it might be to the wards.
Bozman's theory seems to overlook the fact that Indians, except
perhaps in a few isolated cases, never claimed individual or
exclusive personal titles in fee to given and designated portions of
the soil. What, therefore, is held in common may, it would seem, by
the joint action of those interested, be transferred or alienated.
However, it is not oar object at present to theorize as to what
should or might have been done, but to state what was done in this
respect, and thus to show on what policy the various territorial
cessions And reservations mentioned in the present work are based.
The correct theory on this subject appears to be so clearly set
forth by John Quincy Adams in his oration at the anniversary of the
Sons of the Pilgrims, December 22, 1802, that his words are quoted,
as follows:
| There are moralists who
have questioned the right of Europeans to intrude upon
the possessions of the aborigines in any case and under
any limitations whatsoever. But have they maturely
considered the whole subject? The Indian right of
possession itself stands, with regard to the greatest
part of the country, upon a questionable foundation.
Their cultivated fields, their constructed habitations,
a space of ample sufficiency for their subsistence, and
whatever they had annexed to themselves by personal
labor, was undoubtedly y the laws of nature theirs. But
what is the right of a huntsman to the forest of a
thousand miles over which he has accidentally ranged in
quest of prey? Shall the liberal bounties of Providence
to the race of man be monopolized y one of ten thousand
for whom they were created? Shall the exuberant bosom of
the common mother, amply adequate to the nourishment of
millions, be claimed exclusively y a few hundreds of her
offspring? Shall the lordly savage not only disdain the
virtues and enjoyments of civilization himself, but
shall he control the civilization of a world? Shall he
forbid the wilderness to blossom like the rose? Shall he
forbid the oaks of the forest to fall before the ax of
industry and rise again transformed into the habitations
of ease and elegance? Shall he doom an immense region of
the globe to perpetual desolation, and to hear the
howlings of the tiger and the wolf silence forever the
voice of human gladness? Shall the fields and the
valleys which a beneficent God has framed to teem with
the life of innumerable multitudes be condemned to
everlasting barrenness? Shall the mighty rivers, poured
out by the hands of nature as channels of communication
between numerous nations, roll their waters in sullen
silence and eternal solitude to the deep ? Have hundreds
of commodious harbors, a thousand leagues of coast, and
a boundless ocean been spread in the front of this land,
and shall every purpose of utility to which they could
apply be prohibited by the tenant of the woods? No,
generous philanthropists! Heaven has not been thus
inconsistent in the works of its hands. Heaven has not
thus placed at irreconcilable strife its moral laws with
its physical creation. |
In order to show the correctness of the views
expressed by Adams in the above quotation, and the absurdity of
admitting the Indians' claim to the absolute right of the soil
of the whole country, some comparisons are here introduced.
These are simple comparisons between the Indian population and
the extent of territory claimed by them.
1 Old Journals, vol. iv (1783), p. 275, as copied
in " Laws, etc., respecting the Public Lands," Washington, Gales &
Seaton, 1828; pp. 338-339.
2 op. cit , pp. 414-415.
3 Op. cit, p.500
4 History of Maryland, p 509
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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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