CHARACTER OF THE INDIAN TITLE.

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.

Cessions of Land by Indian Tribes to the United States: Illustrated by Those in the State of Indiana First Annual Report of the Bureau of Ethnology to the Secretary of the Smithsonian Institution, 1879-80, Government Printing Office, Washington, 1881, pages 247-262 · 第 2 / 5 题