_House of Representatives, June_ 15, 1809.
On the representation of the Overseers of the Indian
Plantation of Marshpee, in the County of Barnstable, stating
in behalf of said Indians, that it would be conducive to their
interests, that a certain grant and allotment of lands therein
described, _formerly owned by said Indians_, for the support
of the gospel ministry among them, should be confirmed and
rendered valid.
_Resolved_, That a certain grant or allotment of land made by
Lot Nye, Matthias Amos, Moses Pognet, Isaac Halfday, Joseph
Amos, and Eben Dives, of the District of Marshpee, in the
County of Barnstable, as appears by their deed by them, and
by them signed, sealed and executed, on the seventh day of
January, one thousand seven hundred and eighty-three, and
recorded in the Registry of Deeds, in and for said County of
Barnstable, in the fifty-fifth book thereof, and 139th
folio of said book, said land being 400 acres more or less,
according to said deed, be and the same hereby is confirmed
and rendered valid to all intents and purposes by them in
their said deed expressed, and the said tract of land shall be
and remain forever as a parsonage, for the use and benefit of
a Congregational gospel minister, as expressed and declared in
their said deed. Sent up for concurrence.
TIMOTHY BIGELOW, _Speaker_.
_In Senate, June_ 19, 1809,
Read and concurred.
H.G. OTIS, _President_. Approved, C. GORE.
June 19, 1809,
[True Copy.]
Now, if the deed was not valid in 1783, without the concurrent action
of the General Court, it could not be made valid by an act of the
General Court 26 years afterwards. Besides, the land had been in
possession of the Indians, by virtue of their title, more than twenty
years, after the making of the pretended deed. The power of the
grantors, if they ever had any power, had long expired, and Marshpee
was governed by new laws. We might as well hold that an act passed
by the House of Representatives in 1783, could be made valid by a
concurrence of the Senate, in 1809.
It is plain, therefore, that unless the General Court had power
without the consent of the Indians, to sequester this land in 1809,
the setting of it apart from the common land, is wholly void, and an
act of mere arbitrary power. But the general Court never assumed the
power to convey any land for any purpose, belonging to the Indians
without their consent. Where and how was their consent given to this
act of 1809? They were minors in law, and could give no such consent.
Their Overseers could give none for them, for their power only
extended to alloting laws to the Indians, and _leasing_ them.
The pretence, therefore, that this was done at the request of the
Overseers, gives no strength to the act.
Let another fact be remarked. The original sequestration in 1783,
was to promote the gospel in Marshpee. The General Court profess to
confirm and render valid the deed of Lot Nye and others, but they say
that this four hundred acres "shall remain forever as a parsonage for
the use and benefit of a Congregational gospel minister, _as expressed
in their said deed_."
Now no such thing is expressed in their deed. There is not a word
about a Congregational _minister_; only "for the support of the
gospel, according to the discipline and worship of the church in this
place, which is Congregational."
The General Court, therefore, gave a construction to the deed, which
the deed never warranted. The whole proceeding must be illegal and
void. The fee still remains in the Indians, and no power existed to
take it from them without their whole consent as tenants in common,
which they have never given, and could not give, because they were in
law minors. Mr. Fish was sent to Marshpee as a minister, and ordained
in 1811. The Indians, as a society, never invited him to come,
or settled him. They never gave him possession of the land or
Meeting-house. They were then minors in law, and could give no
consent. The white Overseers and Harvard College, were the only powers
that undertook to give Mr. Fish possession of the property of the
Indians. It is true, he has held it twenty years, but the statute
of quiet possession does not run against minors. The Indians were
declared minors, and could bring no action in court.
This is the true history of the parsonage and Meeting-house now
wrongfully held by Mr. Fish. Have not the Indians a right to their
own property? Has the Legislature and Harvard College, a right to
establish a religion by law in Marshpee, and take the property of
the Indians to support a minister they will not hear? Where did the
General-Court get any power to give away the property of the Indians,
any more than the lands of white men, held in common? They cannot take
the property of the Indians to support a private individual. Was it
then a public use? But the Constitution says "no part of the property
of any individual, can with justice be taken from him, or applied to
public uses, without his own consent, or that of the representative
body of the people, and whenever the public exigencies require that
the property of any individual should be appropriated to public uses,
he shall receive a reasonable compensation therefor." Apply this to
the act of the General Court, by which Mr. Fish holds four hundred
acres of the common lands of the Indians, against their consent,
and for which they never received a dollar, and answer. Is not the
Constitution violated, every day he is suffered to remain on the
plantation, against their consent, subsisting on the property of the
poor Indians, not to benefit them, but to preach to the whites?
Look at this subject also, in connexion with religious freedom.
The old article of the Constitution, gave the Legislature power
to _require_ the towns to provide for public worship at their own
expense, where they neglected to make such provisions themselves;
but it also provided that the towns, &c. "shall at all times have the
exclusive right of electing their public teachers, and of contracting
with them for their support and maintenance."
This right the Indians have never had in regard to Mr. Fish, nor did
they neglect to support worship, and if they did, the Legislature had
no power to take their property and set it apart, but might impose a
tax or a fine.
But what says the amended article on this subject of religious
freedom? "The several religious societies of this Commonwealth, (the
Indian as well as the white man,) whether corporate or unincorporate,
shall ever have the right to elect their pastors or religious
teachers, to contract with them for their support, to raise money
for the erecting and repairing houses of public worship, for the
maintenance of religious instruction, and all religious sects and
denominations, demeaning themselves peaceably, and as good citizens,
shall be equally under the protection of the law."
Are the Indians at Marshpee, protected in the same manner the whites
are, in their religious freedom? The Indians think not, and with good
reason; and yet they cannot get redress. They have warned Mr. Fish to
leave their property; they have dismissed him as their minister, if he
ever were such, and have forbidden his using their Meeting-house, or
carrying off their wood. But he persists in holding and using their
property, as they say wrongfully, and even prohibits their having
a religious meeting in the woods, without his consent. He is, it
is stated, at this time employing men to cut and cart wood off the
plantation, for his support, and it is supposed he will thus take of
the property really belonging to the Indians, about two hundred cords
of wood the present year.
Now if this land belongs in common to the Marshpee Indians, as they
contend it does, Mr. Fish and the white men he employs, (and it is
understood he employs no others,) violate the law of 1834, and are
liable to indictment. That law says, "that no person other than
proprietors or inhabitants of said District, shall ever cut wood [upon
the common lands,] or transport the same therefrom. And every person
offending against this provision, shall be liable to indictment
therefor, and upon conviction, shall pay a fine of not less than
fifty, nor more than one hundred dollars, to the use of said
District." In this mode, by indicting the white men employed by Mr.
Fish, to cut and carry off wood, the question could be tried, which is
simply whether the fee of the parsonage is in the Indians, or whether
it is in Mr. Fish, who never had any deed of it in any way. The
parsonage was common land in 1783. Has it been legally changed since
in its title, is the question. But even in this matter, as we are
informed, the courts of justice which are open to white men, are
closed to the poor Indians. At the last session of the court in
Barnstable, the Selectmen of Marshpee complained against the white
men employed by Mr. Fish, for cutting wood on their common lands. The
District Attorney on ascertaining that the wood was taken from the
parsonage, so called, undertook to decide the whole question,
before it went to the court, as it is stated to us, and without any
examination as to Mr. Fish's title, refused to act upon the complaint.
Had the indictment been found, the question could have gone to the
Supreme Court, and been there settled. The Indians now must either
submit to be wronged until some prosecuting officer will hear their
complaints, or they must apply for an injunction, to stop Mr. Fish
cutting any more of their wood. These are believed to be substantially
the facts and the law, in this case. They are left with a candid
public to consider, and to form their opinion on, if they cannot be
shown to be unfounded.
It should be understood that the Committee who reported the act of
1834, giving the new law to the Indians, did not decide any question
touching the parsonage. They treated all the plantation as lands owned
in common. It has been said that the Chairman of the Committee, Mr.
Barton, had given an opinion that Mr. Fish was entitled to hold
the property. This is incorrect. To obviate such an impression,
Mr. Hallett, the counsel for the Indians, wrote to Mr. Barton, and
received the following reply, which will fully explain the position in
which the question was left by the Legislature. In the views expressed
by Mr. Barton, Mr. Hallett fully concurs. Too much praise cannot be
given to Mr. Barton for the zeal, patience and ability with which he
discharged the duties of Chairman of the Committee.