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As the policy adopted by the colonies of New Hampshire and
Delaware in treating with the Indians in regard to their lands was
so intimately connected with that of the older adjoining colonies as
to form in reality but a part of the history thereof, it is thought
unnecessary to give the details.
Policy of the United
States
As already observed, the policy of the United States
respecting the process of obtaining or extinguishing the Indian
title to their lands was outlined, while the government was
condncted under the Articles of Confederation. By a 14 clause of No.
ix" of the "Articles of Confederation," it was agreed that "The
United States in Congress assembled shall have the sole and
exclusive right and power 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."
By the proclamation of September 22, 1783, all
persons were prohibited "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 will be
seen from this that the prohibition was not limited to lands in the
actual use and possession of and occupied by the Indians, but
extended to that claimed by them. It will also be observed that by
the Articles of Confederation and as implied in this proclamation
(or act of Congress) the sole authority in this respect is limited
to "The United States in Congress assembled."
Although the theory and policy implied in the prohibitory clause
have been maintained under the Constitution, there has been a change
as to the "authority" which may act. The clause of the Articles of
Confederation was not inserted in the Constitution, either in words
or in substance. As power to regulate the commerce with the Indians
is the only specific mention therein of relations with the natives,
the authority to act must be found in this clause, in that relating
to making treaties, and in the general powers granted to the
Congress and the Executive.
An examination of the treaties, agreements, executive orders, acts
of Congress, etc, referred to in the schedule which follows, will
show that there are various methods of dealing with the Indians in
regard to lands, and that these methods have not been entirely
uniform.
According to the Annual Report of the Commissioner of Indian Affairs
for 1890 (page xxix), "From the execution of the first treaty made
between the United States and the Indian tribes residing within its
limits (September 17, 1778, with the Delaware) to the adoption of
the act of March 3,18711 that ' no Indian nation or tribe within the
territory of the United States shall be acknowledged or recognized
as an independent nation, tribe, or power with whom the United
States may contract by treaty,' the United States has pursued a
uniform course of extinguishing the Indian title only with the
consent of those tribes which were recognized as having claim to the
soil by reason of occupancy, such consent being expressed in
treaties.... Except only in the case of the Sioux Indians in
Minnesota, after the outbreak of 1862, the Government has never
extinguished. an Indian title as by right of conquest; and in this
case the Indians were provided with another reservation, and
subsequently were paid the net proceeds arising from the sale of the
land vacated."
It would appear from this that until March 3, 1871, Indian titles to
lands were extinguished only under the treaty: making clause of the
Constitution. Treaties with Indians, even though the tribe had been
reduced to an insignificant band, were usually clothed in all the
stately
verbiage that characterized a treaty with a leading European power;
as, for example, the following:1
Whereas a treaty between
the United States of America and the mingles, chiefs,
captains and warriors, of the Choctaw nation, was
entered into at Dancing Rabbit creek, on the
twenty-seventh clay of September, in the year of our
Lord one thousand eight hundred and thirty, and of the
independence of the United States the fifty-fifth, by
John H. Eaton and John Coffee, commissioners on the part
of the United States, and the chiefs, captains, and
headmen of the Choctaw nation, On the part of said
nation; which treaty, together with the supplemental
article thereto, is in the words following, to wit:
Now, therefore, be it known that I, Andrew Jackson,
President of the United States of America, having seen
and considered said treaty, do, in pursuance of the
advice and consent of the Senate, as expressed by their
resolution of the twenty-first clay of February, one
thousand eight hundred and thirty-one, accept, ratify,
and confirm the same, and every clause and article
thereof, with the exception of the preamble.
In testimony where of, I have caused the seal of the
United States to be here unto affixed, having signed the
same with my hand.
Done at the City of Washington, this twenty-fourth day
of February, in the year of our Lord one thousand eight
hundred and thirty-one, and of the independence of the
United States the fifty-fifth.
ANDREW .JACKSON.
By the President :
M. VAN BUREN, Secretary of State. |
By the act of March 3, 18717 the legal fiction of
recognizing the tribes as independent nations with which the United
States could enter into solemn treaty was, after it had continued
nearly a hundred years, finally clone away with. The effect of this
act was to bring under the immediate control of the Congress the
transactions with the Indians and reduce to simple agreements what
had before been accomplished by solemn treaties.
from the report of the Commissioner of Indian Affairs above referred
to, we learn that the Indian title to all the public domain had then
been extinguished, except in Alaska and in the portions included in
one hundred and sixty two Indian reservations and those acquired by
the Indians through purchase.
Of these one hundred and sixty-two reservations
there were established.
| By Executive order |
56 |
| By Executive order under authority of act of
Congress |
6 |
| By act of Congress |
28 |
| By treaty, with boundaries defined or enlarged by
Executive order |
15 |
| By treaty or agreement and act of Congress |
5 |
| By unratified treaty |
1 |
| By treaty or agreement |
51 |
It appears from this list that the method of
establishing reservations has not been uniform, some being by
treaty, some by Executive order, and others by act of Congress.
Those established by Executive order, independent of the act of
Congress, were. not held to be permanent before the "general
allotment act" of 1887, under which "the tenure has been materially
changed and all reservations, whether by Executive order, act of
Congress, or treaty, are held permanent."
Reservations by Executive order under authority of
an act of Congress are those which have been authorized or
established by acts of Congress and their limits defined by
Executive order; or have been first established by Executive order
and subsequently confirmed by Congress.
Other respects in which the power of Congress
intervenes in reference to Indian lands, or is necessary to enable
the Indians to carry out 'their desires in regard thereto, are the
following:
Allotments of land in severalty, previous to the act
of February 8, 1887, could only be made by treaty or by virtue of an
act of Congress, but by this act general authority is given to the
Commissioner of Indian Affairs for this purpose.
Leases of land, sale of standing timber, granting of mining
privileges, and right of way to railroads are all prohibited to the
Indians without some enabling act of Congress. On the other hand, it
is obligatory upon the government to prevent any intrusion,
trespass, or settlement on the lands of any nation or tribe of
Indians except where the tribe or nation has given consent by
agreement or treaty.
The different titles held by Indians which have been recognized by
the government appear to be as. follows: The original right of
occupancy, which has been sufficiently referred to. The title to
reservations differs from the original title chiefly in the fact
that it is derived from the United States. The tenure since the act
of 1887 is the same, and the inability to alienate or transfer is
the same, the absolute right being in the government. A third class
is that where reservations have been patented to Indian tribes.
According to the report of the Commissioner of Indian Affairs,'
patents to the Cherokee, Choctaw, and Creek nations for the tracts
respectively defined by the treaty stipulations were as follows:
December 31, 1838, to
the Cherokee Nation, forever, upon conditions, one of
which is "that the lands hereby granted shall revert to
the United States if the said Cherokees become extinct
or abandon the same."
March 23, 1842, to the Choctaw Nation, in fee simple to
them and their descendants, "to inure to them while they
shall exist as a nation and live on it, liable to no
transfer or alienation, except to the United States or
with their consent."
August 11, 1852, to the Muscogee or Creek tribe of
Indians "so long as they shall exist as a nation and
continue to occupy the country hereby conveyed to them." |
The construction given to these titles by the Indian
bureau and the courts is that they are not the same as the ordinary
title by occupancy; but "a base, qualified, or determinable fee,
with only a possibility of reversion to the United States, and the
authorities of these nations may cut, sell, and dispose of their
timber, and may permit mining and grazing within the limits of their
respective tracts by their own citizens." However, the act of
March 1, 1889, establishing a United States court in Indian
Territory, repeals all laws having the effect to prevent the five
civilized tribes in said territory from entering into leases or
contracts with others than their own citizens for mining coal for a
period not exceeding ten years.
Lands allotted and patented were held by a tenure of a somewhat
higher grade than those mentioned, though their exact status in this
respect does not appear to have been clearly defined. The chief
paragraphs of the act of 1887 bearing on this point are as follows:
Section 1 of this act provides:
| That in all cases where
any tribe or band of Indians has been, or shall
hereafter be, located upon any reservation created for
their use, either by treaty stipulation or by virtue of
an Act of Congress or Executive order setting apart the
same for their use, the President of the United States
he, and he hereby is, authorized, whenever in his
opinion any reservation, or any part thereof, of such
Indians is advantageous for agricultural or grazing
purposes, to cause said reservation, or any part
thereof, to be surveyed, or resurveyed, if necessary,
and to allot the lands in said reservation in severalty
to any Indian located thereon, etc. |
The first clause of section 2 provides, in
substance, that all allotments set apart under the provisions of
this act shall be selected by the Indians, heads of families
selecting for their minor children, and the agents shall select for
each orphan child, and in such manner as to embrace the improvements
of the Indians making the selection.
In this section it is also provided that if any person entitled to
an allotment shall fail to make a selection, the Secretary of the
Interior may, after four years from the time allotments shall have
been authorized. by the President on a particular reservation,
direct the agent for the tribe, or a special agent appointed for the
purpose, to make a selection for such person, which shall be
patented to him as other selections are patented to the parties
making them.
Section 4 provides for making allotments from the
public domain to Indians not residing upon any reservation or for
whose tribe no reservation has been. provided by treaty, act of
Congress, or executive order. Section 6 provides as follows:
| That upon the completion
of said allotments and the patenting of the lands to
said allottees, each and every member of the respective
bands or tribes of Indians to whom allotments have been
made shall have the benefit of and be subject to the
laws, both civil and criminal, of the State or Territory
in which they may reside; and no Territory shall pass or
enforce any law denying any such Indian within its
jurisdiction the equal protection of the law. And every
Indian horn within the territorial limits of the United
States to whom allotments shall have been made under the
provisions of this act, or under any law or treaty, and
every Indian born within the territorial limits of the
United States who has voluntarily taken up within said
limits his residence separate and apart from any tribe
of Indians therein, and has adopted the habits of
civilized life, is hereby declared to be a citizen of
the United States, and is entitled to all the rights,
privileges, and immunities of such citizens, whether
said Indian has been or not, by birth or otherwise, a
member of any tribe of Indians within the territorial
limits of the United States, without in any manner
impairing or otherwise affecting the right of any such
Indian to tribal or other property. |
This would seem to make the Indian a true and
complete citizen, entitled to all the rights of any other citizen,
yet this does not appear to be conceded.
Acknowledgments
It is with pleasure that the author of this
introduction acknowledges the valued assistance rendered by the
Bureau of Indian Affairs, and especially by Mr. Robert F. Thompson
of that office, in correcting errors in and obtaining data for the
Schedule of Land Cessions which follows, as well as for the Schedule
of Allotments of Land in Severalty. with out his assistance
the data relating to several treaties and cessions could not have
been given. Acknowledgments are due also to Mr. Robert H.
Morton, of the General Land Office, for valuable and necessary
information in reference to several items of the Schedule.
1 Laws, etc., Relating to Public
Lands, vol. ii (1836) pp. 104:117.
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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
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