The social and political relations that have existed and still continue
between the Government of the United States and the several Indian
tribes occupying territory within its geographical limits are, in many
respects, peculiar.
The unprecedentedly rapid increase and expansion of the white population
of the country, bringing into action corresponding necessities for the
acquisition and subjection of additional territory, have maintained a
constant straggle between civilization and barbarism. Involved as a
factor in this social conflict, was the legal title to the land occupied
by Indians. The questions raised were whether in law or equity the
Indians were vested with any stronger title than that of mere tenants at
will, subject to be dispossessed at the pleasure or convenience of their
more civilized white neighbors, and, if so, what was the nature and
extent of such stronger title?
These questions have been discussed and adjudicated from time to time by
the executive and judicial authorities of civilized nations ever since
the discovery of America.
The discovery of this continent, with its supposed marvelous wealth of
precious metals and commercial woods, gave fresh impetus to the ambition
and cupidity of European monarchs.
Spain, France, Holland, and England each sought to rival the other in
the magnitude and value of their discoveries. As the primary object of
each of these European potentates was the same, and it was likely to
lead to much conflict of jurisdiction, the necessity of some general
rule became apparent, whereby their respective claims might be
acknowledged and adjudicated without resort to the arbitrament of arms.
Out of this necessity grew the rule which became a part of the
recognized law of nations, and which gave the preference of title to the
monarch whose vessels should be the first to discover, rather than to
the one who should first enter upon the possession of new lands. The
exclusion under this rule of all other claimants gave to the discovering
nation the sole right of acquiring the soil from the natives and of
planting settlements thereon. This was a right asserted by all the
commercial nations of Europe, and fully recognized in their dealings
with each other; and the assertion, of such a right necessarily carried
with it a modified denial of the Indian title to the land discovered. It
recognized in them nothing but a possessory title, involving a right of
occupancy and enjoyment until such time as the European sovereign should
purchase it from them. The ultimate fee was held to reside in such
sovereign, whereby the natives were inhibited from alienating in any
manner their right of possession to any but that sovereign or his
subjects.
The recognition of these principles seems to have been complete, as is
evidenced by the history of America from its discovery to the present
day. France, England, Portugal, and Holland recognized them
unqualifiedly, and even Catholic Spain did not predicate her title
solely upon the grant of the Holy See.
No one of these countries was more zealous in her maintenance of these
doctrines than England. In 1496 King Henry VII commissioned John and
Sebastian Cabot to proceed upon a voyage of discovery and to take
possession of such countries as they might find which were then unknown
to Christian people, in the name of the King of England. The results of
their voyages in the next and succeeding years laid the foundation for
the claim of England to the territory of that portion of North America
which subsequently formed the nucleus of our present possessions.
The policy of the United States since the adoption of the Federal
Constitution has in this particular followed the precedent established
by the mother country. In the treaty of peace between Great Britain and
the United States following the Revolutionary war, the former not only
relinquished the right of government, but renounced and yielded to the
United States all pretensions and claims whatsoever to all the country
south and west of the great northern rivers and lakes as far as the
Mississippi.
In the period between the conclusion of this treaty and the year 1789 it
was undoubtedly the opinion of Congress that the relinquishment of
territory thus made by Great Britain, without so much as a saving clause
guaranteeing the Indian right of occupancy, carried with it an absolute
and unqualified fee-simple title unembarrassed by any intermediate
estate or tenancy. In the treaties held with the Indians during this
period--notably those of Fort Stanwix, with the Six Nations, in 1784,
and Fort Finney, with the Shawnees, in 1786--they had been required to
acknowledge the United States as the sole and absolute sovereign of all
the territory ceded by Great Britain.
This claim, though unintelligible to the savages in its legal aspects,
was practically understood by them to be fatal to their independence and
territorial rights. Although in a certain degree the border tribes had
been defeated in their conflicts with the United States, they still
retained sufficient strength and resources to render them formidable
antagonists, especially when the numbers and disposition of their
adjoining and more remote allies were taken into consideration. The
breadth, and boldness of the territorial claims thus asserted by the
United States were not long in producing their natural effect. The
active and sagacious Brant succeeded in reviving his favorite project of
an alliance between the Six Nations and the northwestern tribes. He
experienced but little trouble in convening a formidable assemblage of
Indians at Huron Village, opposite Detroit, where they held council
together from November 28 to December 18, 1786.
These councils resulted in the presentation of an address to Congress,
wherein they expressed an earnest desire for peace, but firmly insisted
that all treaties carried on with the United States should be with the
general voice of the whole confederacy in the most open manner; that the
United States should prevent surveyors and others from crossing the Ohio
River; and they proposed a general treaty early in the spring of 1787.
This address purported to represent the Five Nations, Hurons, Ottawas,
Twichtwees, Shawanese, Chippewas, Cherokees, Delawares, Pottawatomies,
and the Wabash Confederates, and was signed with the totem of each
tribe.
Such a remonstrance, considering the weakness of the government under
the old Articles of Confederation, and the exhausted condition
immediately following the Revolution, produced a profound sensation in
Congress. That body passed an act providing for the negotiation of a
treaty or treaties, and making an appropriation for the purchase and
extinguishment of the Indian claim to certain lands. These preparations
and appropriations resulted in two treaties made at Fort Harmar, January
9, 1789, one with the Six Nations, and the other with the Wiandot,
Delaware, Ottawa, Chippewa, Pottawatima, and Sac Nations, wherein the
Indian title of occupancy is clearly acknowledged. That the government
so understood and recognized this principle as entering into the text of
those treaties is evidenced by a communication bearing date June 15,
1789, from General Knox, then Secretary of War, to President Washington,
and which was communicated by the latter on the same day to Congress, in
which it is declared that--
The Indians, being the prior occupants, possess the right of soil.
It cannot be taken from them, unless by their free consent, or by
right of conquest in case of a just war. To dispossess them on any
other principle would be a gross violation of the fundamental laws
of nature, and of that distributive justice which is the glory of a
nation.
The principle thus outlined and approved by the administration of
President Washington, although more than once questioned by interested
parties, has almost, if not quite, invariably been sustained by the
legal tribunals of the country, at least by the courts of final resort;
and the decisions of the Supreme Court of the United States bear
consistent testimony to its legal soundness. Several times has this
question in different forms appeared before the latter tribunal for
adjudication, and in each case has the Indian right been recognized and
protected. In 1823, 1831, and 1832, Chief Justice Marshall successively
delivered the opinion of the court in important cases involving the
Indian status and rights. In the second of these cases (The Cherokee
Nation _vs_. The State of Georgia) it was maintained that the Cherokees
were a state and had uniformly been treated as such since the settlement
of the country; that the numerous treaties made with them by the United
States recognized them as a people capable of maintaining the relations
of peace and war; of being responsible in their political character for
any violation of their engagements, or for any aggression committed on
the citizens of the United States by any individual of their community;
that the condition of the Indians in their relations to the United
States is perhaps unlike that of any other two peoples on the globe;
that, in general, nations not owing a common allegiance are foreign to
each other, but that the relation of the Indians to the United States is
marked by peculiar and cardinal distinctions which exist nowhere else;
that the Indians were acknowledged to have an unquestionable right to
the lands they occupied until that right should be extinguished by a
voluntary cession to our government; that it might well be doubted
whether those tribes which reside within the acknowledged boundaries of
the United States could with strict accuracy be denominated foreign
nations, but that they might more correctly perhaps be denominated
domestic dependent nations; that they occupied a territory to which we
asserted a title independent of their will, but which only took effect
in point of possession when their right of possession ceased.
The Government of the United States having thus been committed in all of
its departments to the recognition of the principle of the Indian right
of possession, it becomes not only a subject of interest to the student
of history, but of practical value to the official records of the
government, that a carefully compiled work should exhibit the boundaries
of the several tracts of country which have been acquired from time to
time, within the present limits of the United States, by cession or
relinquishment from the various Indian tribes, either through the medium
of friendly negotiations and just compensation, or as the result of
military conquest. Such a work, if accurate, would form the basis of any
complete history of the Indian tribes in their relations to, and
influence upon the growth and diffusion of our population and
civilization. Such a contribution to the historical collections of the
country should comprise:
1st. A series of maps of the several States and Territories, on a scale
ranging from ten to sixteen miles to an inch, grouped in atlas form,
upon which should be delineated in colors the boundary lines of the
various tracts of country ceded to the United States from time to time
by the different Indian tribes.
2d. An accompanying historical text, not only reciting the substance of
the material provisions of the several treaties, but giving a history of
the causes leading to them,, as exhibited in contemporaneous official
correspondence and other trustworthy data.
3d. A chronologic list of treaties with the various Indian tribes,
exhibiting the names of tribes, the date, place where, and person by
whom negotiated.
4th. An alphabetic list of all rivers, lakes, mountains, villages, and
other objects or places mentioned in such treaties, together with their
location and the names by which they are at present known.
5th. An alphabetic list of the principal rivers, lakes, mountains, and
other topographic features in the United States, showing not only their
present names but also the various names by which they have from time to
time been known since the discovery of America, giving in each case the
date and the authority therefor.