|
|
The discussion of the policy of New York while a colony must of
necessity begin with the Dutch settlement at the mouth of the Hudson
known as New Netherland. The exact date of the first white
settlement of the area now embraced by New York city does not appear
to be known. It is stated by the "Report of the Board of Accounts on
New Netherland," made in 1644, that "In the years 1622 and 1623, the
Pest India Company took possession, by virtue of their charter, of
the said country, and conveyed thither, in their ship, the New
Netherland, divers Colonists under the direction of Cornelis
Jacobsz. Mey, and Adriaen Jorissz. Tienpoint, which Directors, in
the year 1624, built Fort Orange on the North River, and Fort Nassau
on the South River, and after that, in 1626, Fort Amsterdam on the
Manhattes."1 However, it appears to have
been subsequent to 1623 and previous to June, 1626.
On November 5,1626, Pieter J. Schagen, deputy of the West India
Com pany, reported to the States general of Holland as follows:
"Yesterday, arrived here the Ship the Arms of Amsterdam, which
sailed from New Netherland, out of the River Mauritius, on the 23rd
September. They report that our people are in good heart and live in
peace there; the Women also have borne some children there. They
have purchased the Island Manbattes from the Indians for the value
of 60 guilders; 'tis 11,000 morgens in size. They had all their
grain sowed by the middle of May, and reaped by the middle of
August;" etc.2 The West India Company
had instructed Peter Minuet to treat with the Indians for their
hunting grounds before he took any steps toward the erection of
buildings. According to Martha J. Lamb3
the purchase was made the 6th of May, 1626. The price paid, it is
true, was very small (but little more than one dollar for a thousand
acres), yet we are told the simple natives accepted the terms with
unfeigned, delight.
.The patent issued to Kiliaen Van Rensselaer, August 13, 1630, was
based on a purchase from the Indians, acknowledged before the
director and council by them at the time it was issued:
| We, the Director and
Council of New, Netherlands, residing on the Island
Manhatas and in Fort Amsterdam, under the authority of
their High Mightinesses the Lords States General of the
United Netherlands and the Incorporated West India
Company, Chamber at Amsterdam, do hereby acknowledge and
declare, that on this day, the date under written,
before us appeared and presented themselves in their
proper persons: Kottomack, Nawanemit, Albautzeene,
Sagiskwa and Kanaomack, owners and proprietors of their
respective parcels of land, extending up the River,
South and North, from said Fort unto a little south of
Moeneminnes Castle, to the aforesaid proprietors,
belonging jointly and in common, and the aforesaid
Nawanemit's particular land called Semesseerse, lying on
the East Bank opposite Castle Island off unto the above
mentioned Fort; Item, from Petanock, the Millstream,
away North to Negagonse, in extent about three miles,4
and declared freely and advisedly for and on account of
certain parcels of Cargoes, which they acknowledge to
have received in their hands and power before the
execution hereof, and, by virtue and bill of sale, to
hereby transport, convey and make over to the Mr.
Kiliaen van Rensselaer, absent, and for whom We, ex
officio and with due stipulation, accept the same;
namely: the respective parcels of land here in before
specified, with the timber, appendences and dependencies
thereof, together with all the action, right and
jurisdiction to them the grantors conjointly or
severally belonging, constituting and surrogating the
said Mr. Rensselaer in their stead, state and right,
real and actual possession thereof, and at the same time
giving him full, absolute and irrevocable power,
authority and special command to hold, in quiet
possession, cultivation, occupancy and use, tanquam
actor et procurator in rem suam ac propriam, the land
aforesaid, acquired y said Mr. Van Rensselaer, or those
who may hereafter acquire his interest; also, to dispose
of, do with and alienate it, as he or others should or
might do with his other and own Lands and domains
acquired by good and lawful title, without the grantors
therein retaining, reserving or holding any, the
smallest part, right, action or authority whether of
property, command or ,jurisdiction, but rather, hereby,
desisting, retiring and renouncing there from forever,
for the behoof aforesaid.5 |
In the undated "New Project of Freedoms and Exemptions,"6
but probably drawn up in 1629, the patrons are required by article
27 to purchase the lands from the Indians: "The Patrons of New
Netherland, shall be bound to purchase from the Lords Sachems in New
Netherland, the soil where they propose to plant their colonies, and
shall acquire such right thereunto as they will agree for with the
said Sachems." By article 33 "All private and poor [unauthorized]
people (onvermogen personen) are excluded from these Exemptions
Privileges and Freedoms, and are not allowed to purchase any lands
or grounds from the Sachems or Indians in New Netherland, but must
repair under the jurisdiction of the respective Lords Patrons."'
This, however, was modified in 1640 so that "In the selections of
lands, those who shall have first notified and presented themselves
to the Company, whether Patrons or private colonists, shall be
preferred to others who may follow."6
It would seem from these facts that the colony commenced its
dealings with the Indians on the just policy of purchasing from them
the land they wished to settle. It was the boast of one of the early
governors, in his correspondence with the New England authorities,
that the Dutch had not planted a colony with a desire to seize the
land of the natives or grasp their territory unjustly, but that
whatever land they obtained was and would be fairly and honorably
purchased to the satisfaction of both parties. Nor does this boast
appear to have been without justification. Their dealings with and
treatment of the Indians in other respects may have been in some,
possibly many, instances far from proper or honorable, yet their
method of extinguishing the Indian title to lands appears, as a
rule, to have been just.
In their attempts to plant colonies on the banks of Connecticut
river and on Delaware bay they purchased the desired sites from the
Indians.
The patrons, in their communication to the States General, refer
more than once to the fact that they obtained their lands from the
Indians by purchase. For example, in that of June, 1634, they say,
1, The Patrons proceeding on daily, notwithstanding, bought and paid
for, not only the grounds belonging to the chiefs and natives of the
lands in New Netherland, but also their rights of sovereignty and
such others as they exercised within the limits of the Patrons'
purchased territories.' And again, October 25,1634, that they have
purchased not only lands on "the said river" but likewise on "the
South river and others lying to the east of the aforesaid North
river." And again, in 1651, it is asserted that "Immediately after
obtaining the Charter, the Honorable. Directors sent divers ships to
New. Netherland with people and cattle, which people, being for the
most part servants of the aforesaid Company, purchased many and
various lands; among others, on the North (alias Maurice) river,
Staten island, Pavonia, Hoboocken, Nut Island and the Island of
Manhattans with many other lands thereabouts... . A very extensive
tract of country was also purchased from the Natives, being
Mahikanders, 36 leagues up the North river, where Fort Orange was
founded."
It is started by James Macauley7 that
Both the English and the Dutch on Long Island, respected the rights
of the Indians, and no land was taken up y the several towns, or y
individuals, until it had been fairly purchased of the chiefs, of
the tribe who claimed it. The consideration given for the laud was
inconsiderable in value, and usually consisted of different articles
of clothing, implements of hunting and fishing, domestic utensils,
and personal ornaments; but appears to have been such in all cases,
as was deemed satisfactory y the Indians.
The same author also remarks8 that
| In the Dutch towns it
seems that the lands were generally purchased y the
governor, and were y him granted to individuals. In the
English towns in the Dutch territory, the lands were
generally purchased of the natives y the settlers, 'With
the consent of the Dutch governor; and in the towns
under the English, the lands were purchased of the
natives by the settlers, originally with the consent of
the agent of the Earl of Sterling; and, after his death,
the purchases of the Indians were made y the people of
the several towns for their common benefit. |
It will be observed from this that the method of obtaining the
Indian title was not uniform and systematic, nor kept as strictly
under control of the chief colonial authority as it should have
been. The practice of permitting individuals, or companies other
than municipal authorities acting on behalf of towns, etc, to
purchase lands of the natives, even with the consent of the governor
or other proper officer, was calculated to, and did afterward,
become the cause of much discontent and dispute in New York.
The first action of the English on this question after coming into
possession is shown by permits to purchase granted by Colonel
Richard Nicolls. The following are a few examples, though the lands
are not all embraced in the present bounds of the state of New York:9
|
License to purchase
Indian Lands at the Nevesinks
Upon the request of Wm.
Goldinge, James Grover and John Browne, in behalf of
themselves and their associates, I, do hereby authorize
them to treate and conclude with the several Sachims of
the Nevisans or any others concerned, about the purchase
of a parcel of lands lyeing and being on the maine
extending from Chawgoranissa near the month of the
Raritans River unto Pontopecke for the doeing whereof
this shall be their warrant. Given under my hand at fort
James in New Yorke on Manhattans island this 17th day of
October 1664.
R. NICOLLS
Upon the petition of Philipp
Pietersen Schuyler That he may have liberty to Purchase
a certain Parcel of Land of the Natives, lying and being
near Fort Albany, as in the said Petition is esprest; I
do hereby grant Liberty unto the said Philips Pietersen
Schuyler so to do of which when hee shall bring a due
Certificate unto nice, hee shall have a Patent for the
said Lauds by Authority from his Royale Highnesses the
Duke of Yorke for the farther Confirmation thereof.
Given under my hand at Fort James in New Yorke on
Manhatans Island this 3011, day of March 1665.
RiCH. NICOLLS.
Upon the petition of
Johannes Clute and Jan Hendricksen Bruyns, That they may
have leave and Liberty to Purchase of the Indians, a
certain parcel of Land lying and being on the west side
of ye North River and against Clave Rack near Fort
Albany, as in their Peticon is esprest and that they may
likewise Plant the same, I do hereby Grant leave and
Liberty unto the said Johannes Clute and Jan Hendricksen
Bruyns to make Purchase, thereof and to Plant it
Accordingly, as is desired, of which, when they shall
bring unto me a due certificate, They shall have a
patent for the said Lands by Authority from his Royall
Highnesses the Duke of Yorke for their farther
Confirmation therein. Given under my hand at Fort James
in New Yorke this 111 day of April 1665.
RICH". NICOLLS
Whereas. Jan Cloet, Jan
Hendrickson Bruyu and Jurian Teuuissen have produced
before the Court of Albany the consent given to their
petition, of his Honor the Governour of New York, to
purchase from the Indians a certain parcel of land
situate on the west side of the North river opposite to
the Claverrack near Fort Albany.
Therefore appeared before me, the undersigned Secretary
of Albany, five savages, named Sachamoes, Mawinata, also
called Schermerhoorn, Keesie Wey, Papenua, Maweha,
owners and proprietors of the said land, representing
the other co-owners, who declared in the presence of the
undersigned witnesses; that they have sold, ceded and
transferred, as they herewith cede and transfer the same
to the real and actual possession of and fox the benefit
of the aforesaid Jan Cloet and Jan Hendricksen Bruyn, to
wit, the land called Caniskok, which stretches along the
river from the land of Pieter Brouk down to the valley,
lying near the point of the main laud behind the Baeren
Island, called Machawameck, and runs into the woods both
at the North and South ends to the Katskil road. The
price for it is a certain sum to be paid in merchandise,
which they, the sellers, acknowledge to have received
from the purchasers to their full satisfaction; they
therefore renounce their former claims and declare Jan
Cloet and Jan Hendricksen Bruyn to be the lawful owners
of the land, promising, etc.
Thus done at Albany in the presence of Harmen Bastiansen
and Hendrick Gerritsen, called in as witnesses, the 2001
of April 1665 Old Style. |
In another case Colonel Nicolls, acting as " Governor under his
Royall Highnesses the Duke of York," purchased a tract of the
"Sachems and people called the Sapes Indyans."
It is perhaps proper to notice a statement by Macauley10
alluding to an earlier transaction not relating directly to the
colony, which, however, shows the disposition of the Dutch to
purchase such lands as they wished to settle or occupy: "Between the
years 1616 and 1620, about twenty persons belonging to the [Dutch
East India] Company went from the fort on Dunn's island, below
Albany, to Ohnowalagantle, now Schenectady, where they entered into
a compact with the Mohawks, from whom they bought some land on which
they erected a trading house."
There is but little on record by which to judge of the policy
adopted in relation to the dealings of New York with the Indians in
reference to their lands, from the close of Dutch control up to the
middle of the eighteenth century. A few items noticed are presented
here as having some bearing upon the question.
By the instructions to the Earl of Bellomont, August 31, 1697, he is
directed to call before him the Five Nations, and upon their
renewing their submission to His Majesty's government he is to
assure them that he will protect them as subjects against the French
King; and when an opportunity offered for purchasing "great tracts
of land for His Majts from the Indians for small sums," he was to
use his discretion therein as he judged for the convenience of or
advantage to His Majesty. This was a clear recognition of the
Indians' possessory right and an indication of an intention not to
disregard it. However, it appears that under the preceding governor
(Fletcher) large grants had been made to individuals with little
regard to the Indians' rights, or unauthorized or pretended
purchases from the Indians. For example, a considerable portion of
the Mohawks' land was obtained by fraudulent and unauthorized
purchases, and the grants, notwithstanding the protests of the
Indians, were confirmed by Governor Fletcher.11
One of these grants was to Colonel Nicholas Bayard, a member of the
council, for a tract on both sides of Schoharie creek, some 24 to 30
miles in length. Another to Godfrey Dellius, 70 miles in length from
Battenkill, Washington county, to Vergennes, in Vermont. One to
Colonel Henry Beckman, for 16 miles square in Dutchess county; and
another on Hudson river, 20 miles in length by 8 in width. One to
William Smith, a member of the council, on the island of Nassau,
containing about 50 square miles. One to Captain Evans, 40 miles in
length by 20 in width, embracing parts of Ulster, Orange, and
Rockland counties, etc.
However, it should be remarked that Governor Fletcher, in his reply
to the charges made against him, stated that one of the instructions
received from the King was "that when any opportunity should offer
for purchasing great tracts of land for him from the Indians for
small sums he was to use his discretion therein, as he should judge
for the convenience or advantage which might arise to His Majesty by
the same"' and that the parties to whom the grants were made had
presented evidence of their purchases from ,the Indians. It will be
observed, however, that these purchases do not appear to have been
made for or on behalf of the King, but solely for the individuals
named.
On July 19, 1701, the deed presented above, under the section
relating to the English policy, by the Five Nations to their "Beaver
Hunting Ground" was executed. As this has already been referred to,
it is unnecessary to add anything concerning it, except to say that
it had no lasting effect nor formed the basis of land claims save in
regard to some two or three grants made by the governor of New York
under an erroneous construction. It was, in fact, a step on the part
of the Iroquois tribes in the effort to bring themselves more
directly under the sovereignty and protection of the English and
induce them to take more active measures against the French.
In regard to this effort Sir William Johnson remarks as follows:
In this Situation
therefore the 5 Nations, who were at the head of a
Confederacy of almost all the Northern Nations, and in
whom all their interests were united, did in 1701,
resolve upon a measure the most wise and prudent with
regard to their own interests, and the most advantageous
with regard to Ours, that could have been framed; they
delineated upon paper in the most precise manner the
Limits of what they called their hunting grounds,
comprehending the great Lakes of Ontario and Erie, and
all the circumjacent Lands for the distance of Sixty
miles around them, The sole and absolute property of
this Country thy desired might be secured to them; and
as a proof of perpetual Alliance, and to support Our
Rights against any Claims which the French might make,
founded on the vague and uncertain pretence of unlimited
Grants or accidental local discovery, they declared
themselves killing to yield to Great Britain, the
Sovereignty and absolute dominion of it, to be secured
and protected y Forts to be erected whenever it should
be thought proper.
A Treaty was accordingly entered into and concluded upon
these terms by Mr. Nonfat then Lieutenant Governor of
New York; and a Deed of surrender of the Lands,
expressing the Terms and Conditions, executed by the
Indians.
The advantages of such a concession on the part of the
Indians were greater than our most sanguine hopes could
have expected; and had the Judgment, Zeal and Integrity
of those, whose Duty it was faithfully to execute the
Conditions of the Engagement, been equal to those of him
who made it, the Indians might have been forever secured
in Our Interest and all disputes with France about
American Territory prevented; but by neglect of
Government on one hand, and the enormous abuses of
Individuals in the purchase of Lands on the other hand,
all the solid advantages of this Treaty and concession
were lost, and with them the memory even of the
Transaction itself; The Indians were disobliged and
disgusted, and many of them joined with the Enemy in the
War which followed this Treaty, and disturbed our
Settlements, whilst the French, to whom this Transaction
pointed out what their plan should be, took every
measure to get possession of the Country by Forts and
Military Establishments; and although they were
compelled at the Treaty of Utrecht to acknowledge in
express terms our Sovereignty over the Six Nations, yet
finding We took no Steps to avail Ourselves of such a
favorable declaration either by a renewal of Our
Engagement with the Indians, or taking measures to
support Our sovereignty y forts erected in proper parts
of the Country, thy ceased not to pursue that Plan, in
which they had already made so considerable a progress,
and it was not 'till the year 1725, when they had by
their Establishment at Niagara, secured to themselves
the possession of Lake Ontario, that We saw too late our
Error in neglecting the advantages which might have been
derived from the Treaty of 1701.12 |
As referring to the same subject, and as being confirmatory of
what is said above in regard to the want of a settled policy, the
following remark from the same authority is added:
| The Experience We
had had of the mischief's, which followed from a want of
a proper regard and attention to our engagement in 1701,
increased by the danger which now threatened Our
Colonies from the daily and enormous encroachments of
the French, ought to have been a Lesson to Us to have
been now more careful of Our Interests, but Yet the,
same avidity after Possession of Indian Lands,
aggravated by many other. Abuses, still remained
unchecked and uncontrolled y any permanent Plan.13 |
The change of policy about the middle of the eighteenth century,
by which the control of Indian affairs was brought more immediately
under the English government, has been referred to in the section
relating to the English policy, and need not be repeated here. One
additional item, however, may be cited, as it mentions some of the
special grants which were the cause of much complaint on the part of
the Indians, and served to induce the government to introduce this
change.
In a communication from the Lords of Trade to Justice DeLancey,
March 19, 1756, is the following statement:
| We have lately had under
our consideration the present State of Indian Affairs,
and as it appears clearly to us, that the Patents of
Lands commonly called the Kayoderosseras, Conojohary and
that at the Oneida carrying place, which have been made
at different times, upon pretence of purchases from the
Indians, is one of the principal causes of the decline
of our Interest amongst them, and that they can never be
induced heartily and zealously to join in the just and
necessary measures, His Majesty has been compelled to
take, for the recovery of his undoubted Rights, until
full satisfaction is given them with respect to these
grievances, they have so long and so justly complained
of; We have thought it our duty, to recommend this
matter to Sir Charles Hardy's serious attention, and to
desire he will lay it fully before the Council and
Assembly to the end that proper measures may be taken
for vacating and annulling these exorbitant grants, as
were done upon a former occasion of the like kind in
1699. The many difficulties which will attend the doing
this by a legal process in the Courts are so many and so
great, as leave us little room to hope for success from
such a measure; and we see no remedy to this great evil,
but from the interposition of the Legislature by passing
a Law for this purpose, which we have directed the
Governor earnestly to recommend to them, as a measure
which will be for His Majtyes service, for their honor
and Interest, and for the advantage, security and
welfare of their constituents in general.14 |
Numerous protests against the Kayoderosseras purchase were
presented by the Indians, and the matter was a subject of
controversy for a number of years. This is described as "beginning
at the half Moon and so up, along Hudson's river to the third Fall
and thence to the Cacknawaga or Canada creek which is 4 or 5 miles
above the Mohawks." A more exact description has doubtless been
published, but is not at present at hand; but it is not essential
for the present purpose. The tract was a large one, and the
regularity of the purchase was disputed by the Indians. However, in
1768 the patentees produced. the original Indian deed, and having
had the boundaries surveyed, the Indians, on receiving "a handsome
sum of money were at length prevailed on to yeild their Claim to the
Patentees."
It was about the time of the above mentioned communication that
Governor Morris stated to the Five Nations that "he found by woeful
experience that making purchases of lands was the cause of much
blood being shed; he was determined, therefore, to buy no more."'
In a "Review of the trade and affairs of the Indians in the northern
district of America," written about this period by Sir William
Johnson, he remarks as follows on the subject of Indian lands.
| Whilst the Indian Trade
was in this State at the Posts and frontiers, the
inhabitants were not idle; the reduction of Canada
raised the value of Lands, and those who thought they
had not enough (who may be presumed to amount to a very
large number), now took every step & employed every low
Agent, who understood a little of the Indian language to
obtain Tracts for them; on this head I need not be
particular, having so often explained their conduct and
pointed out its consequences; however their avidity in
pursuit of grants, and these in the most alarming
places, the irregular steps which they took to obtain
them, the removal [renewal?] of dormant titles, and the
several greater strides, which were taken as herein
before is mentioned, concerned the Indians so nearly,
that a general uneasiness took place and spread itself
throughout them all.14 |
Although Johnson speaks more than once in this review of the
improper methods" though forbade by the royal proclamation and
express interposition of the Government" to obtain grants from the
Indians, yet he does not inform us how these were perfected.
However, as the power of granting lands to individuals remained in
the governor of the state, they must have been perfected, so far as
this was accomplished, through him. It is proper to add, however,
that Cadwallader Colden, writing to the Lords of Trade in 1764,
seems to differ somewhat from Johnson:
| As to that part of the
plan, which respects the purchasing of Land from the
Indians, I think it necessary to observe, that the
regulations which have been established, and constantly
followed in this province, for upwards of twenty* years,
appears to have been effectual and convenient, no
complaints having been made by Indians, or others, on
any purchases made by authority of this Government since
that time. By these regulations all lauds purchased of
the Indians, are previously to be surveyed by the King's
surveyor General of Lands, or his Deputy, in the
presence of some Indians deputed for that purpose, by
the Nation from whom the purchase is made. Of late years
the Deputy Surveyors are not only sworn, but give Bonds,
to the Surveyor General, for the due and faithful
execution of their work. By thin means the employing of
persons, who have not sufficient skill, or of whose
integrity one can not be so well assured, is prevented,
and the Surveyor General is enabled, to complete a
general Map of the Province and to locate the several
grants precisely, which cannot be done, if Surveyors,
not under the Direction of the Surveyor General, be
employed. The Surveyor General in this Province, makes a
return of the Survey, upon every Indian purchase, into
the Secretaries Office.15 |
This relates apparently to the officially authorized purchases,
and not to those which Johnson alludes to as obtained by fraud.
However, as the evidence shows, and as a remedy was applied, it is
presumable that Johnson's statement is correct.
A close of this ill-advised and unfortunate course was at last at
hand. Orders, proclamations, and instructions, as already shown, had
been promulgated by the English government for the purpose of
remedying this, but a practical and satisfactory method of solution
was not reached until 1765. It was then proposed that a fixed and
well, defined boundary or dividing line between the whites and the
Indians should be marked out, and that the whites should be
absolutely prohibited from settling beyond it under any pretense.
This agreement was perfected at the treaty of Fort Stanwix in 1768.
The line agreed upon at this treaty with the Six Nations was as
follows:
| We the said
Indians HAVE for us and our Heirs and Successors granted
bargained sold released and confirmed and y these
presents do Grant bargain sell release and confirm unto
our said Sovereign Lord King George the third, All that
Tract of Land situate in North America at the Back of
the British Settlements bounded y a Line which we have
now agreed upon and do hereby establish as the Boundary
between ns and the British Colonies in America beginning
at the Mouth of Cherokee or Hogohege River where it
emptys into the River Ohio and running from thence
upwards along the South side of said River to Kittaning
which is above Fort Pitt from thence y a direct Line to
the nearest Fork of the west branch of Susquehanna
thence through the Allegany Mountains along the South
side of the said West Branch untill it comes opposite to
the mouth of a Creek called (sic) Tiadaghton thence
across the West Branch and along the South Side of that
Creek and along the North Side of Burnetts Hills to a
Creek called Awandāe
thence down the same to the East Branch of Susquehanna
and across the same and up the East side of that River
to Oswegy from thence East to Delawar River and up that
River to opposite where Tianaderha falls into
Susquehanna thence to Tianaderha and up the West side of
its West Branch to the head thereof and thence by a
direct Line to Canada Creek where it emptys into the
wood Creek at the West of the Carrying Place beyond Fort
Stan wig and extending Eastward from every part of the
said Line as far as the Lands formerly purchased so as
to comprehend the whole of the Lands between the said
Line and the purchased Lands or settlements, except what
is within the Province of Pensilvania.17 |
But it was provided "that the lands occupied by the Mohocks
around their villages, as well as by any other nation affected by
this cession, may effectually remain to them and to their
posterity."
As the Indian titles subsequent to this date were obtained by
treaties on the part of the state government or the United States,
it is unnecessary to allude to them, especially as most of them are
mentioned by Mr Royce in the Schedule. The policy pursued by the
United States had now been fully adopted, and the Indian titles,
with some minor reserves, were finally extinguished in accordance
therewith.
This policy was incorporated in the state constitution of 1777, as
shown by the following clause:
And whereas, it is of
great importance to the safety of this State, that peace
and amity with the Indians within the same be at all
times supported and maintained: And whereas, the frauds
too often practiced towards the said Indians, in
contracts made for their lands, have in divers
instances, been productive of dangerous discontents and
animosities:
Be it ordained, That no purchase or contracts for
the sale of lands made since the fourteenth day of
October, in the year of our Lord, one thousand seven
hundred and seventy-five, or which may hereafter be made
with any of the said Indians, within the limits of this
State, shall be binding on the said Indians, or deemed
valid, unless made under the authority, and with the
consent, of the Legislature of this State.18 |
It will be observed that the state acknowledged, in the most
solemn manner possible, the frauds practiced on the Indians in
regard to their lands.
Numerous acts were subsequently passed by the legislature in regard
to Indian lands, but one only of these, which is general in its
scope, is here noticed. This act, which was passed in 17881 is as
follows:
AN ACT to punish
infractions of that article of the Constitution of this
state, prohibiting purchases of lands from the Indians,
without the authority and consent of the Legislature,
and more effectually to provide against intrusions on
the un-appropriated lands of this State.
Whereas, y the thirty-seventh section of the
Constitution of this State, reciting that it is of great
importance to the safety of this State, that peace and
amity with the Indians within the same be at all times
supported and maintained; and that the frauds too often
practiced towards the said Indians, in contracts made
for their lands, have, in divers instances, been
productive of dangerous discontents and animosities; it
is ordained, that no purchases or contracts for the sale
of lands, made since the fourteenth 'day of October, one
thousand seven hundred and seventy-five, or which might
thereafter be made with, or of the said Indians within
the limits of this State, shall be binding on the said
Indians, or deemed valid, unless made under the
authority, and with the consent of the Legislature of
this State. In order, therefore, more effectually to
provide against infractions of the Constitution in this
respect,
1. Be it enacted by the people of the State of New
York, represented in Senate and Assembly, and it is
hereby enacted by the authority of the same, That if
any person shall hereafter, unless under the authority,
and with the consent of the Legislature of this State,
in any manner or form, or any terms whatsoever, purchase
any lauds within the limits of this State, or make
contracts for the sale of lands within the limits of
this State, with any Indian or Indians residing within
the limits of this State, every person so purchasing, or
so making a contract, shall be deemed to have offended
against the people of this State, and shall, on
conviction, forfeit one hundred pounds to the people of
this State, and shall be further punished by fine and
imprisonment, in the discretion of the court.
2. And be it further enacted by the authority
aforesaid, That every person who shall hereafter
give, convey, sell, demise, or otherwise dispose of or
offer to give, convey, sell, demise, or otherwise
dispose of any lands within the limits of this State, or
any right, interest, part or share, of or in any lands
within the limits of this State, to intrude, or enter
on, or take possession of, or settle on any lands within
the limits of this State, pretending or claiming any
right, title, or interest in such lands by virtue, under
color, or in consequence of any purchase from, or
contract for the sale of lauds made with any such Indian
or Indians as aforesaid, at any time since the
fourteenth day of October, one thousand seven hundred
and seventy-five, and not under the authority, and with
the consent of the Legislature of this State, every such
person shall be deemed to have offended against the
people of this State, and shall on conviction, forfeit
the sum of one hundred pounds to the people of this
State, and be further punished by fine and imprisonment,
in the discretion of the court.
And be it further
enacted by the authority aforesaid, That if any
persons other than Indians, shall, after the passing of
this act, take possession of, or intrude or settle on
any of the waste or ungranted lands of this State, lying
eastward of the lands ceded y this State to the
Commonwealth of Massachusetts, and westward of the line
or lines commonly called the Line of Property, agreed on
between the Indians and the Superintendent of Indian
affairs, in the year one thousand seven hundred and
sixty-eight, every person so taking possession of, or
intruding or settling on any such waste or ungranted
lands within the limits aforesaid, shall be deemed as
holding such lands by a foreign title, against the right
and sovereignty of the people of this State; and it
shall and may be lawful for the person administering the
government of this State for the time being, and it is
hereby declared to be his duty to remove, or cause to be
removed, from time to time, by such means, and in such
manner as he shall judge proper, all persons other than
Indians who shall so take possession of or settle or
intrude on any of the waste or ungranted lands of this
State, within the limits aforesaid, and to cause the
buildings or other improvements of such intruders on
such lands, to be destroyed; and for that purpose, in
his discretion, to order out any proportion of the
militia from any part of this State, and such an
occasion to be deemed: an emergency, intended in the
second section of the act entitled "An act to regulate
the militia," passed the fourth day of April, 1786. And
the detachments so from time to time to be ordered out,
shall receive the same pay and rations, and be subject
to the same rules and regulations, as is provided in the
said section of the said act.17 |
Before closing this section, the following remarks by Yates and
Moulton2 in regard to the policy of the State of New York in this
respect are presented, in order that they may be considered in
connection with the facts which have been given:
| In New York, prior to
the confederacy of the Union, the same principle as that
which was confirmed in Virginia was adopted as an
article (37) of the constitution of 17 77, and
reincorporated in that of 1822 (article 7, section 12).
It rendered contracts made with the Indians void unless
sanctioned by the legislature. Before and since the
adoption of the constitution of the United States
various legislative provisions have been made relative
to the different Indian tribes and nations within the
State. Judicial decisions have also followed some of
which were deemed to run counter to the broad principle
as settled in the last case by the courts, and were
therefore reversed directly or virtually. But it had
been early settled that possession of Indians did not
invalidate a patent from the State, and that sales by
Indians were void made to the whites without legislative
sanction. But in the final decision of the Court of
Errors, it was considered, that from the constitutional
provisions of the State, from the object and policy of
the act relative to the different tribes and nations
within this State, declaring such purchases (without
legislative sanction) a penal offence; from the
construction in pari materia of the whole code of
Indian statute law, from the special act of 1778 to that
of 1810; from a review of the history of the Six Nations
from their first alliance with the Dutch until the
surrender of the o colony to the English, and from the
time when they placed themselves under the protection of
the latter to the present period, having for more than a
century been under their and our protection; from the
resolutions of Congress and our public treaties, all
combining to elucidate the principle of preeminent
claim, and from the whole scope and policy of these
constitutional and legislative provisions originating in
the cautious and parental policy of government to
protect the Indians in the possession of their lands
from the frauds and imposition, superior cunning, and
sagacity of the whites; they were to be deemed as
incapable of aliening as inoper concilii, and
therefore, that, although they are regarded not as
citizens, but as independent allies, or alien
communities, still continuing under the. protection of
government, and exempt from the civil municipal laws
which regulate citizens, (though not from the operation
of our criminal code for crimes committed within our
jurisdictional limits, though among themselves)
nevertheless, all contracts for lands, whether from a
tribe or nation from Indians or from an individual
Indian, whether such individual be an Indian heir
deriving from a military grant from government, (which
though presumed from lapse of time to have issued
lawfully, must be construed as a grant to the Indian and
his Indian heirs and assigns) yet such is their total
incapacity to convey to whites, that all contracts for
lands are not only void, but reciprocally inoperative,
except such individual sales as shall first receive,
pursuant to the act of the legislature, the approval of
the Surveyor General of the State, to be indorsed on the
deed from such Indian.
Such being the principles of
international law, as sanctioned before and since our
revolution, such the municipal regulations of our
general and State governments since, and such the
foundation to the domain of this State; no title derived
from the grant of any Indians, unless received
immediately from our government, can be recognized in
our courts of justice so long as all title is vested in,
and must emanate from the United States, or a State,
under which so ever jurisdiction the land may be a part
of its sovereignty. |
This is undoubtedly a correct statement of the law and theory of
the United States as already noticed, and is also applicable to New
York subsequent to the treaty of Fort Stanwix in 1768, but the facts
as given above, which might be greatly multiplied, do not indicate
such a regular, systematic, and just policy prior to this date as
that portrayed by Yates and Moulton.
1 New York Colonial Documents, vol. I, p. 149.
2 Ibid., p. 37.
3 History of the City of New York, p. 53.
4 Three Dutch miles equal 12 English miles.
5 New York Colonial Documents, vol. I, p. 44
6 Ibid., vol. u, pp. 96-100.
7 Ibid., p. 119
8 History of the state of New York (1829), vol. it,
p. 260.
9 Ibid., vol. it, p. 320.
10 Colonial Documents of New York, vol. XIII, pp.
395 of seq.
11 New York Colonial Documents, vol. iv, pp. 345,
346.
12 Documentary History of New York, vol. II, p.
778.
13 Documentary History of New York, vol. n, p. 780.
14 New York Colonial Documents, vol. vii, p. 78.
15 New York Colonial Documents, vol. vii, p. 961.
16 Ibid p. 670.
17 New York Colonial Documents, vol. VIII, p. 136.
18 Laws of Colonial and Sate Governments in Regard
to Indian Affairs, 1832, p. 61.
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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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