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Each of the great nations of Europe was eager to appropriate to
itself so much of the new continent as it could acquire. Its extent
afforded an ample field for the ambition and enterprise of all, and
the character, low culture status, and religious beliefs of the
aborigines afforded an apology for considering them a people over
whom the superior genius of Europe might rightfully claim an
ascendancy. The sovereigns of the Old World therefore found no
difficulty in convincing themselves that they made ample
compensation to the natives by bestowing on them the benefits of
civilization and Christianity in exchange for control over them and
their country. However, as they were all in pursuit of the same
object, it became necessary, in order to avoid conflicting
settlements and consequent war with one another, to establish a
principle which all would acknowledge as the law by which the right,
as between themselves, to the acquisition of territory on this
continent, should be determined. This principle was, that discovery
of lands gave title therein to the government by whose subjects or
by whose authority such discovery was made, against all other
European or' civilized governments, which title might be consummated
by possession. This is clearly shown, not only by the express
declarations officially made in behalf of the different powers, but
also by the wording of the various grants and charters allowed by
them. However, the opinion of the United States Supreme Court1
is so full and decisive on this point that a summary of the
statements therein contained will dispense with the necessity of
furnishing proof of the acknowledgment of this principle from the
history of the discovery and settlement of the continent.
Although Spain obtained immense territory in the western continent,
she did not rest her title solely on the grant of the Pope. On the
contrary, her discussions with France, Great Britain, and the United
States respecting boundaries all go to show very clearly that she
based her claims on the rights given by discovery.
France also founded her title to the territories she claimed in
America on discovery. Her claim to Louisiana, comprehending the
immense territory watered by the Mississippi and its tributaries,
and her claims in Canada as well, were based expressly on discovery.
In the treaties made with Spain and Great Britain by the United
States this title was recognized by the latter. The claims by the
states of Holland to American territory were based on the same
title, and the contest with them by the English was not because of a
dispute of this principle, but because the latter claimed prior
discovery. All the transfers of American territory from one European
nation to another were based on the title by discovery; nor did any
one of the European powers give more complete or more unequivocal
assent to this principle than England. In 1496 her monarch
commissioned the Cabots to discover countries "then unknown to all
Christian people," with authority to take possession of them in the
name of the King of England. To the discovery made by these
navigators have the English traced the title to their possessions in
North America.
In all these claims and contests between the civilized nations of
Europe, the Indian title to the soil is nowhere allowed to
intervene, it being conceded that the nation making the discovery
had the sole right of acquiring the soil from the natives and of
establishing settlements on it. This was understood to be a right
with which no other European government could interfere; it was a
right which each government asserted for itself and to which all
others assented. Those relations which were to exist between the
discoverers and the natives were to be regulated by themselves. The
rights thus acquired being exclusive, no other power could interpose
between them.
Nevertheless, it must not be understood that the Indians' rights
were wholly disregarded by the powers in planting colonies in the
territories taken possession of by them.
Continuing, the court remarks:
In the establishment of
these relations, the rights of the original inhabitants
were, in no instance, entirely disregarded, but were
necessarily, to a considerable extent, impaired. They
were admitted to be the rightful occupants of the soil,
with a legal as well as just claim to retain possession
of it [or rather so much as was necessary for their
use], and to use it according to their own discretion;
but their rights to complete sovereignty, as independent
nations, were necessarily diminished, and their power to
dispose of the soil at their own will, to whomsoever
they pleased, was denied by the original fundamental
principle that discovery gave exclusive title to those
who made it.
While the different nations of Europe respected the
right of the natives as occupants, they asserted the
ultimate dominion to be in themselves; and claimed and
exercised, as a consequence f this ultimate dominion, a
power to grant the soil, while yet in possession of the
natives. These grants have been understood by all to
convey a title to the grantees, subject only to the
Indian right of occupancy.
The history of America, from its discovery to the
present day, proves, we think, the universal recognition
of these principles. |
In these statements the court, of course, speaks only from the
legal point of view or theory, for it is well known that in their
practical dealings with the natives the nations of Europe, and the
United States also, often failed to carry out this theory. It is
also doubtful whether it cart truly be said that France fully
recognized the Indian title, even theoretically, to the extent
indicated.
The right to take possession regardless of the occupancy of the
natives was not only claimed by all the nations making discoveries,
but the same principle continued to be recognized. This is shown by
the following instances adduced by the court, to which many others
might be added:
| The charter granted to
Sir Humphrey Gilbert, in 1578, authorizes him to
discover and take possession of such remote, heathen and
barbarous lands as were not actually possessed by any
Christian prince or people. This charter was afterwards
renewed to Sir Walter Raleigh in nearly the same terms.
By the charter of 1606,
under which the first permanent English settlement on
this continent was made, James I. granted to Sir Thomas
Gates and others, those territories in America lying on
the seacoast between the thirty-fourth and forty-fifth
degrees of north latitude, and which either belonged to
that monarch, or were not then possessed by any other
Christian prince or people. The grantees were divided
into two companies at their own request. The first, or
southern colony, was directed to settle between the
thirty-fourth and forty-first degrees of north latitude;
and the second, or northern colony, between the
thirty-eighth and forty-fifth degrees.
In 1609, after some expensive and not very successful
attempts at settlement had been made, a new and more
enlarged charter was given by the Crown to the first
colony, in which the King granted to the " Treasurer and
Company of Adventurers of the city of London for the
first colony in Virginia," in absolute property, the
lands extending along the seacoast 400 miles, and into
the land throughout. from sea to sea. This charter,
which is a part of the special verdict in this cause,
was annulled, so far as respected the rights of the
company, by the judgment of the Court of King's Bench on
a writ of quo warranto; but the whole effect allowed to
this judgment was to revest in the crown the powers of
government, and the title to the land within its limits.
At the solicitation of those who held under the grant to
the second or northern colony, a new and more enlarged
charter was granted to the Duke of Lenox and others, in
1620, who were denominated the Plymouth Company,
conveying to them in absolute property all the lands
between the fortieth and forty-eighth degrees of north
latitude.
Under this patent, New England has been in a great
measure settled. The company conveyed to Henry Rosewell
and others, in 1627, that territory which is now
Massachusetts; and in 1628, a charter of incorporation,
comprehending the powers of government, was granted to
the purchasers.
Great part of New England was granted by this company,
which at length divided their remaining lands among
themselves; and, in 1635, surrendered their charter to
the crown. A patent was granted to Gorges for Maine,
which was allotted to him in the division of property.
All the grants made by the Plymouth Company, so far as
we can learn, have been respected. In pursuance of the
same principle, the King, in 1664, granted to the Duke
of York the country of New England as far south as the
Delaware bay. His Royal Highness transferred New Jersey
to Lord Berkeley and Sir George Carteret.
In 1663, the Crown granted to Lord Clarendon and others,
the country lying between the thirty-sixth degree of
north latitude and the river St Mathes; and, in 1666,
the proprietors obtained from the crown a new charter,
granting to them that province in the King's dominions
in North America which lies from thirty-sixth degrees
thirty minutes north latitude to the twenty-ninth
degree; and from the Atlantic Ocean to the South sea.
Thus has our whole country been granted. y the crown
while in the occupation of the Indians. These grants
purport to convey the soil as well as the right of
dominion to the grantees. In those governments which
were denominated royal, where the right to the soil was
not vested in individuals, but remained in the Crown, or
was vested in the colonial government, the king claimed
and exercised the right of granting lands and of
dismembering the government at his will. The grants made
out of the two original colonies, after the resumption
of their charters y the crown, are examples of this. The
governments of New England, New York, New Jersey,
Pennsylvania, Maryland, and a part of Carolina, were
thus created. In all of them, the soil, at the time the
grants were made, was occupied y the Indians. Yet almost
every title within those governments is dependent on
these grants. In some instances, the soil was conveyed y
the crown unaccompanied y the powers of government, as
in the case of the northern neck of Virginia. It has
never been objected to this, or to any other similar
grant, that the title as well as possession was in the
Indians when it was made, and that it passed nothing on
that account.
These various patents can not be considered as
nullities; nor can they be limited to a mere grant of
the powers of government. A charter intended to convey
political power only, would never contain words
expressly granting the land, the soil and the waters.
Some of them purport to convey the soil alone; and in
those cases in which the pours of government, as well as
the soil, are conveyed to individuals, the crown has
always acknowledged itself to be bound y the grant.
Though the pour to dismember regal governments was
asserted and exercised, the power to dismember
proprietary governments was not claimed; and, in some
instances, even after the powers of government were
revested in the crown, the title of the proprietors to
the soil was respected.
Charles II. was extremely anxious to acquire the
property of Maine, but the grantees sold it to
Massachusetts, and he did not venture to contest the
right of that colony to the soil. The Carolinas were
originally proprietary governments. In 1721 a revolution
was effected y the people, who shook off their obedience
to the proprietors, and declared their dependence
immediately on the crown. The king, however, purchased
the title of those who were disposed to sell. One of
them, Lord Carteret, surrendered his interest in the
government, but retained his title to the soil. That
title was respected till the revolution, when it was
forfeited by the laws of war.
Further proofs of the extent to which this principle has
been recognized, will be found in the history of the
wars, negotiations and treaties which the different
nations, claiming territory in America, have carried on
and held with each other.
Thus, all the nations of Europe, who have acquired
territory on this continent, have asserted in
themselves, and have recognized in others, the exclusive
right of the discoverer to appropriate the lands
occupied y the Indians. Have the American States
rejected or adopted this principle?
By the treaty which concluded the war of our Revolution,
Great Britain relinquished all claim, not only to the
government, but to the "propriety and territorial rights
of the United States," whose boundaries were fixed in
the second article. By this treaty, the powers of
government, and the right to soil, which had previously
been in Great Britain, passed definitively to these
states. We had before taken possession of them, by
declaring independence; but neither the declaration of
independence, nor the treaty confirming it, could give
us more than that which we before possessed, or to which
Great Britain was before entitled. It has never been
doubted, that either the United States, or the several
states, had a clear title to all the lands within the
boundary lines described in the treaty, subject only to
the Indian right of occupancy, and that the exclusive
pour to extinguish that right was vested in that
government which might constitutionally exercise it. |
That this rule has been adopted also by the United States is
asserted by the Supreme Court in the same opinion:
The United States, then,
have unequivocally acceded to that great and broad rule
y which its civilized inhabitants now hold this country.
They hold, and assert in themselves, the title by which
it was acquired. They maintain, as all others have
maintained, that discovery gave an exclusive right to
extinguish the Indian title of occupancy, either by
purchase or by conquest; and gave also a right to such a
degree of sovereignty as the circumstances of the people
would allow them to exercise.
The power now possessed by the Government of the United
States to grant lands resided, while we were colonies,
in the crown or its grantees. The validity of the titles
given by either has never been questioned in our courts.
It has been exercised uniformly over territory in
possession of the Indians. The existence of this power
must negative the existence of any right which may
conflict with, and control it. An absolute title to
lands can not exist, at the same time, in different
persons, or in different governments. An absolute, must
be an exclusive title, or at least a title which
excludes all others not compatible with it. All our
institutions recognize the absolute title of the crown,
subject only too the Indian right of occupancy, and
recognized the absolute title of the crown to extinguish
that right. This is incompatible with an absolute and
complete title in the Indians.
We will not enter into the controversy, whether
agriculturists, merchants, and manufacturers, have a
right, on abstract principles, to expel hunters from the
territory they possess, or to contract their limits.
Conquest gives a title which the courts of the conqueror
can not deny, whatever the private and speculative
opinions of individuals may be, respecting the original
justice of the claim which has been successfully
asserted. The British government, which was then our
government, and whose rights have passed to the United
States, asserted a title to all the lands occupied by
Indians within the chartered limits of the British
colonies. It asserted also a limited sovereignty over
them, and the exclusive right of extinguishing the title
which occupancy gave to them. These claims have been
maintained and established as far west as the river
Mississippi, by the sword. The title to a vast portion
of the lands we now bold, originates in them. It is not
for the courts of this country to question the validity
of this title or, to sustain one which is incompatible
with it.
Although we do not mean to engage in the defense of
those principles which Europeans have applied to Indian
title, they may, we think, find some excuse, if not
justification, in the character and habits of the people
whose rights have been wrested from them.
The title by conquest is acquired and maintained by
force. The conqueror prescribes its limits. Humanity,
however, acting on public opinion, has established, as a
general rule, that the conquered shall not be wantonly
oppressed, and that their condition shall remain as
eligible as is compatible with the objects of the
conquest. Most usually they are incorporated with the
victorious nation and become subjects or citizens of the
government with which they are connected. The new and
old members of the society mingle with each other; the
distinction between them is gradually lost, and they
make one people. Where this incorporation is
practicable, humanity demands, and a wise policy
requires, that the rights of the conquered to property
should remain unimparied; that the new subjects should
be governed as equitably as the old, and that confidence
in their security should gradually banish the painful
sense of being separated from their ancient connections,
and united y force to strangers.
When the conquest is complete, and the conquered
inhabitants can be blended with the conquerors, or
safely governed as a distinct people, public opinion,
which not even the conqueror can disregard, imposes
these restraints upon him; and he can not neglect them
without injury to his fame and hazard to his power.
But the tribes of Indians inhabiting this country were
fierce savages, whose occupation was war, and whose
subsistence was drawn chiefly from the forest. To leave
them in possession of their country was to leave the
country a wilderness; to govern them as a distinct
people was impossible because they are as brave and as
high spirited as they were fierce, and were ready to
repel by arms every attempt on their independence.
What was the inevitable consequence of this state of
things? The Europeans were under the necessity either of
abandoning the country, and relinquishing their pompous
claims to it, or of enforcing those claims y the sword,
and by the adoption of principles adapted to the
condition of a people with whom it was impossible to
mix, and who could not be governed as a distinct
society, or of remaining in their neighborhood and
exposing themselves and their families to the perpetual
hazard of being massacred.
Frequent and bloody wars, in which the whites were not
always the aggressors, unavoidably ensued. European
policy, numbers and skill, prevailed. As the white
population advanced, that of the Indians necessarily
receded. The country in the immediate neighborhood of
agriculturists became unfit for them. The game fled into
thicker and more unbroken forests, and the Indians
followed. The soil, to which the crown originally
claimed title, being no longer occupied y its ancient
inhabitants, was parceled out according to the will of
the sovereign power, and taken possession of by persons
who claimed immediately from the crown, or mediately,
through its grantees or deputies.
That law which regulates, and ought to regulate in
general, the relations between the conqueror and
conquered, was incapable of application to a people
under such circumstances. The resort to some new and
different rule, better adapted to the actual state of
things, was unavoidable. Every rule which can be
suggested will be found to be attended with great
difficulty.
However extravagant the pretension of converting the
discovery of an inhabited country into conquest may
appear, if the principle has been asserted in the first
instance, and afterwards sustained; if a country has
been acquired and held under it; if the property of the
great mass of the community originates in it, it becomes
the law of the land, and can not be questioned. So, too,
with respect to the concomitant principle, that the
Indian inhabitants are to be considered merely as
occupants, to be protected, indeed, while in peace, in
the possession of their lands, but to be deemed
incapable of transferring the absolute title to others.
However this restriction may be opposed to natural
right, and to the usages of civilized nations, yet, if
it be indispensable to that system under which the
country has been settled, and be adapted to the actual
condition of the two people, it may, perhaps, be
supported y reason, and certainly can not be rejected by
courts of justice.
It has never been contended that the Indian title
amounted to nothing. Their right of possession has never
been questioned.. The claim of government extends to the
complete ultimate title, charged with this right of
possession, and to the exclusive power of acquiring that
right. The object of the crown was to settle the
seacoast of America; and when a portion of it was
settled, without violating the rights of others, y
persons professing their loyalty, and soliciting the
royal sanction of an act, the consequences of which were
ascertained to be beneficial, it would have been as
unwise as ungracious to expel them from their
habitations because they had obtained the Indian title
otherwise than through the agency of government. The
very grant of a charter is an assertion of the title of
the crown, and its words convey the same idea. The
country granted is said to be "our island called Rhode
Island;" and the charter contains an actual grant of the
soil, as well as of the powers of government. |
1 Johnson and Graham's lessee v. McIntosh, 8
Wheaton, p. 543 et seq.
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stereotypes implied
First annual Report of the Bureau of Ethnology,
1879-80
Indian
Land Cessions in the United States
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