INDIAN AFFAIRS: LAWS AND TREATIES

Vol. IV, Laws     (Compiled to March 4, 1927)

Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1929.


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PART VI.

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THE DOCTRINE OF INDIAN RIGHT TO OCCUPANCY AND POSSESSION OF LAND.

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I.

INDIAN CONCEPT OF LAND TENURE.

THE AMERICAN INDIAN HAD NO CONCEPTION OF THE PRIVATE OR EXCLUSIVE INDIVIDUAL OWNERSHIP OF LAND, BUT UNDERSTOOD ONLY THE TENURE OF LAND FOR THE PERPETUAL USE AND OCCUPANCY OF THE TRIBE, AS TENANTS IN COMMON. INDIANS HAD NO CONCEPTION OF LAND AS MERCHANTABLE, ALTHOUGH AN INDIVIDUAL OR A TRIBE COULD SELL WHATEVER USER IT HAD IN THE LAND, BUT COULD NOT SELL THE RIGHTS TO USE OR OCCUPY POSSESSED BY OTHER TRIBES OR BANDS, OR INDIVIDUALS, OR THE RIGHT OF USER OF SUCCEEDING GENERATIONS OF THE TRIBE.

Grinnell, in the American Anthropologist, Vol. I, No. 9, makes the following statement:

But the Indian's savage mind knew no such thing as absolute ownership of land by individuals. According to his view neither the tribe nor any member of it has any piece or land rights other than the right to occupy and use it, the individual for life in common with his fellows, the tribe forever, to the exclusion of unfriendly peoples. In the past the old people occupied this land, hunted over it, gathered fruits from it, or cultivated it; and as they passed away the same operations were performed by one generation after another; and after those now occupying it shall have passed from life, their children and their children's children for all succeeding generations shall have in it the same rights that the people of the past have had, and those of the present possess, but no others. This

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land can not be sold by the individual or the tribe. The individuals now living on it may sometimes barter away their personal rights in it, but they can not alienate the land, because the sole ownership of it is not in them. The tribe are tenants, and in a sense trustees; and individuals can part only with the rights which they possess as members of the tribe, subject to the rights and duties of the tribe. (Page 3.)
Until within comparatively recent times, all land sales and all treaties have been made by the Indians on the theory that they were passing over to the white people certain rights of occupancy—were lending them the use of the land. These rights in a general way were to live on the land, to pass over it, to cultivate it, to use its waters, the animals that lived on it, the birds that flew over it, and the fish in the streams; yet the Indians looked forward to a time at the end of the loan when the land should be returned to them, when nature would heal the scars made by the white man, when the animals and the birds would reestablish themselves and the fish would increase in the rivers. (Page 4.)

Fletcher, in Bulletin 30, Bureau of American Ethnology, Handbook of American Indians North of Mexico, Vol. I., states the following:

Land tenure.—The Indian conceived of the earth as mother, and as mother she provided food for her children. The words in the various languages which refer to the land as "mother" were used only in a sacred or religious sense. In the primitive and religious sense land was not regarded as property; it was like the air, it was something necessary to the life of the race, and therefore not to be appropriated by any individual or group of individuals to the permanent exclusion of all others. Other words referring to the earth as "soil" to be used and cultivated by man, mark a change in the manner of living and the growth of the idea of a secular relation to the earth. Instead of depending on the spontaneous products of the land the Indian began to sow seeds and care for the plants. In order to do this he had to remain on the soil he cultivated. Thus occupancy gradually established a claim or right to possess the tract from which a tribe or individual derived food. This occupancy was the only land tenure recognized by the Indian; he never himself reached the conception of land as merchantable, this view being forced on his acceptance through his relations with the white race. Tecumseh claimed that the Northwest Territory, occupied by allied tribes, belonged to the tribes in common, hence a sale of land to the whites by one tribe did not convey title unless confirmed by other tribes. Furthermore, among most of the Algonquin Tribes, at least, according to Dr. William Jones, if land were ceded to the whites, the cession could not be regarded as absolute, i. e., the whites could hold only to a certain depth in the earth such as was needful for sustenance. Each tribe had its village sites and contiguous hunting or fishing grounds; as long as the people lived on these sites and regularly went to their hunting grounds, they could claim them against all intruders. This claim often had to be maintained by battling with tribes less favorably situated. The struggle over the right to hunting grounds was the cause of most Indian wars. In some tribes garden spots were claimed by clans, each family working on its own particular patch. In other tribes the favorable localities were preempted by individuals, regardless of clan relations. As long as a person planted a certain tract the claim was not disputed, but if its cultivation were neglected anyone who chose might take it. (Page 756.)

Fletcher gives the following authorities:

Adair, Hist. Am. Indians, 282, 1775; Bandelier in Archaeol. lnst. Papers, III, 201-272, 1890; Cushing in Millstone, IX, 55, 1884; Dawson, Queen Charlotte Islands, 117, 1878; Fletcher, Indian Education and Civilization, 1888; Grinnell, Am. Anthrop., IX, No. I, 1907; (cited supra); Jenks, 19th Rep. Bur. Ain. Ethn., 1900; Powell, 7th Rep. Bur. Am. Ethn., 39-41, 1891; Royce, Indian Land Cessions, 18th Rep. Bur. Am. Ethn., Part 2, 1889: Willoughby, Am. Anthrop. VIII, No. I, 1906. (Page 757.)

II.

LAW REGARDING TERRITORY CEDED TO OR CONQUERED BY THE UNITED STATES

WHEN A NATION ACQUIRES NEW TERRITORY BY CESSION OR CONQUEST THE PUBLIC OR POLITICAL LAW OF THE ACQUIRED TERRITORY IS CHANGED, BUT NOT THE PRIVATE OR MUNICIPAL LAW; AND TO THE SAME EFFECT WITH REGARD TO PROPERTY RIGHTS, THOSE HAVING RIGHTS IN OR TO LAND IN THE CONQUERED OR CEDED TERRITORY REMAINING IN THE SAME POSITION WITH REGARD TO THESE AS THEY WERE IN BEFORE THE CESSION OR CONQUEST, UNTIL SUCH RIGHTS ARE CHANGED OR MODIFIED BY THE NEW SOVEREIGN.

Chief Justice Marshall, in American Insurance Co. v. Canter (1 Pet. 542), held in effect:

All the laws which were in force in Florida while a Province of Spain, those excepted which were political in their character, which concerned the relations between the people and their sovereign, remained in force until altered by the Government of the United States. Congress recognized this principle by using the words "laws of the territory now in force therein." No laws could have been in force but those enacted by the Spanish Government.

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Justice Field, in Chicago and Pac. Railway Co. v. McGlinn (114 U. S. 542), held in effect:

It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country—that is, laws which are intended for the protection of private rights—continue in force until abrogated or changed by the new government or sovereign.

Chief Justice Marshall, in United States v. Soulard (4 Pet. 511), held in effect:

In the treaty by which Louisiana was acquired the United States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property. The United States, as a just nation, regard this stipulation as the avowal of a principle which would have been held equally sacred, though it had not been inserted in the contract. The term "property," as applied to lands, comprehends every species of title inchoate or complete. It is supposed to embrace those rights which lie in contract; those which are executory, as well as those which are executed. In this respect the relation of the inhabitants to their government is not changed. The new government takes the place of that which has passed away.

Chief Justice Marshall in United States v. Percheman (7 Pet. 51), held in effect:

It is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged if private property should be generally confiscated and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other and their rights of property remain undisturbed.

In Coffee v. Groover (123 U. S., 1, 9-10), it was said:

It is no doubt the received doctrine that, in cases of ceded or conquered territory, the rights of private property in lands are respected. Grants made by former government, being rightful when made, are not usually disturbed. * * *. It is true that the property rights of the people, in those cases, were protected by stipulations in the treaties of cession, as is usual in such treaties; but the court took broader ground and held, as a general principle of international law, that a mere cession of territory only operates upon the sovereignty and jurisdiction, including the right to the public domain, and not upon private property of individuals which had been segregated from the public domain before the cession. This principle is asserted in the cases of United States v. Arredondo, 6 Pet. 691; United States v. Percheman, 7 Pet. 51, 86-89; Delassus v. United States, 9 Pet. 117; Strother v. Lucas, 12 Pet. 428; Doe v. Eslava, 9 How. 443; Jones v. McMasters, 20 How. 8, 17; and Leitensdorfer v. Webb, 20 How. 176.

III.

INDIAN RIGHT TO OCCUPANCY AND POSSESSION OF LAND IN THE UNITED STATES

IN GENERAL, THE UNITED STATES RECOGNIZES IN THE INDIAN TRIBES THE RIGHT TO PERPETUAL OCCUPANCY, POSSESSION, AND USE OF THE LANDS CLAIMED AND ACTUALLY POSSESSED BY THEM, THE TRIBE HOLDING AS TENANTS IN COMMON. THE FEE TO SUCH LANDS REMAINS, HOWEVER, IN THE UNITED STATES AS SUCCESSOR TO THE RIGHTS OF THE ORIGINAL EUROPEAN DISCOVERERS, AND THE INDIAN POSSESSORY RIGHT CAN BE SOLD BY THEM ONLY TO THE UNITED STATES. THERE ARE EXCEPTIONS TO THIS RULE, HEREINAFTER TO BE NOTED.

Justice Clifford, in Holden v. Joy (17 Wall. 217), said

Beyond doubt the Cherokees were the owners and occupants of the territory where they resided before the first approach of civilized man to the Western Continent, deriving their title, as they claimed, from the Great Spirit, to whom the whole earth belongs, and they were unquestionably the sole and exclusive masters of the territory, and claimed the right to govern themselves by their own laws, usages, and customs. Guided by nautical skill, enterprising navigators were conducted to the New World. They found it, says Marshall, C. J., in possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting, and fishing. Expeditions were fitted out by all the great maritime powers of the Old World, and they visited many parts of the newly discovered continent, and each made claim to such part of the country as they visited. Disputes arose and conflicts were in prospect, which made it necessary to establish some principle which all would acknowledge and which should decide their respective rights in case of conflicting pretensions. Influenced by these considerations, they agreed that discovery should determine the right; that discovery should give title to the government whose subjects, or by whose authority it was made, against all other governments, and that the title so acquired might be consummated by possession. Johnson v. McIntosh, 8 Wheat. 573. As a

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necessary consequence the principle established gave to the nation making the discovery the sole right of acquiring the soil and of making settlements on it. Obviously this principle regulated the right conceded by discovery among the discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants or as occupants by virtue of a more ancient discovery. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell. * * *. Throughout, the Indians, as tribes or nations, have been considered as distinct, independent communities, retaining their original natural rights as the undisputed possessors of the soil, from time immemorial, subject to the conditions imposed by the discoverers of the continent, which exclude them from intercourse with any other government than that of the first discoverer of the particular section claimed. They could sell to the government of the discoverer, but they could not sell to any other governments or their subjects, as the government of the discoverer acquired, by virtue of their discovery, the exclusive preemption right to purchase, and the right to exclude the subjects of all other governments, and even their own, from acquiring title to the lands. * * *. Unmistakably their title was absolute, subject only to the preemption right of purchase acquired by the United States as the successors of Great Britain, and the right also on their part as such successors of the discoverer to prohibit the sale of the land to any other governments or their subjects, and to exclude all other governments from any interference in their affairs. Mitchel v. U. S., 9 Pet. 748.

Chief Justice Marshall, in Worcester v. Georgia (6 Pet. 515, 544, 559), said:

The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this preemptive privilege in the particular place. The United States succeeded to all the claims of Great Britain, both territorial and political; but no attempt, so far as is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they exist in fact, are understood by both parties, are asserted by the one, and admitted by the other.
Soon after Great Britain determined on planting colonies in America the King granted charters to companies of his subjects, who associated for the purpose of carrying the views of the crown into effect and of enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea that the feeble settlements made on the seacoast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The Crown could not be understood to grant what the Crown did not affect to claim, nor was it so understood. * * * The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil from time immemorial, with the single exception of that imposed by irresistable power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed; and this was a restriction which those European potentates imposed on themselves as well as on the Indians. The very term "nation," so generally applied to them, means "a people distinct from others."

Justice Field, in Buttz v. Northern Pacific R. R. Co. (119 U. S. 55), said:

The land in controversy and other lands in Dakota, through which the Northern Pacific Railroad was to be constructed was within what is known as Indian country. At the time the act of July 2, 1864, was passed the title of the Indian tribes was not extinguished. But that fact did not prevent the grant of Congress from operating to pass the fee of the land to the company. The fee was in the United States. The Indians had merely a right of occupancy, a right to use the land subject to the dominion and control of the Government. The grant conveyed the fee subject to this right of occupancy. The railroad company took the property with this incumbrance. The right of the Indians, it is true, could not be interfered with or determined except by the United States. No private individual could invade it, and the manner, time, and condition of its extinguishment were matters solely for the consideration of the Government, and are not open to contestation in the judicial tribunals. As we said in Beecher v. Wetherby, 95 U. S. 517: "It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their action toward the Indians with respect to their lands is a question of governmental policy, and is not a matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians. The right of the United States to dipose of the fee of lands occupied by them has always been recognized by this court from the foundation of the Government."

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IV.

LIMITATIONS ON INDIAN RIGHT TO OCCUPANCY AND POSSESSION OF LANDS IN CERTAIN PARTS OF UNITED STATES.

IN REGARD TO LANDS ACQUIRED BY THE UNITED STATES FROM SPAIN AND MEXICO THE INDIAN RIGHT OF OCCUPANCY AND POSSESSION IS NOT RECOGNIZED, WITH THE EXCEPTION OF THOSE CASES WHERE IT WAS RECOGNIZED BY THE SPANISH OR MEXICAN GOVERNMENTS, PRIOR TO THE CESSIONS TO THE UNITED STATES, OR WHERE THE UNITED STATES GAVE RIGHTS TO THE INDIANS WITHIN THESE CEDED TERRITORIES BY TREATY, ACT OF CONGRESS, OR EXECUTIVE ORDER, AFTER CESSION, OR BY TREATY OR ACT OF CONGRESS, RECOGNIZED THAT THE INDIANS WITHIN THESE CEDED TERRITORIES POSSESSED SUCH RIGHTS OF OCCUPANCY AND POSSESSION.

Justice Howry, in Charles D. Hayt v. United States, et al. (38 Court of Claims, 455-460-465), a case not appealed to the Supreme Court said:

It is said for defendants that Spain never recognized Indian titles except those of the Cherokee, Seminole, and others in Florida and the southern possessions of that Kingdom in this country, and that as to this country the grant from the Indians was always the grant of the fee; that the King of Spain made no concessions respecting Indian titles in Mexico, but claimed the whole country for his own; that this claim by virtue of conquest was maintained until Mexico acquired its independence and that Government in turn never acknowledged the existence of aboriginal title. The significance of the proposition is that if the Indian title to occupancy was never recognized by Spain and Mexico the title acquired by the United States was obtained free of incumbrance by virtue of previous Indian occupancy. In other words, the contention is that there was no Indian title to extinguish when the former sovereign lost control. There are authorities which hold that the Spanish law did not recognize any kind of title to the soil growing out of occupation in wild or wandering tribes (Byrne v. Alas, 74 Cal. 628), and that the uncivilized Indian was as free from being considered in the laws of Spain and Mexico as the wild beast of the forest (United States v. Lucero, 1 New Mex. 422).
The rule was stated very early that Indians were deemed to be the rightful occupants of the soil with a legal as well as just claim to retain possession and use it at discretion. The nations asserted ultimate dominion with power to convey a title to the grantees, but every grant was subject to the Indian right of occupancy. Spain did not rest her title solely on the grant of the pope, but based her claim upon the right of discovery. (Johnson v. McIntosh, 8 Wheat. 575.) This qualified claim of title by virtue of discovery seems to have included the acquisitions of Spain from Old Mexico because the aboriginal right of occupation was respected by the laws of Spain, but the occupants could not part with this right except in the mode pointed out by Spain. (Chouteau v. Moloney, 16 How. 201; Mitchell v. United States, 9 Pet. 724.) So much for Spain.
But as for Mexico, neither the researches of counsel nor the investigation of the court disclose recognition of aboriginal title by that Government. When the independence of Mexico was established in 1821 the revolutionary government adopted a decree known as the "Plan of Iguala." This plan was reaffirmed by the treaty of Cordova and its principles were adopted by the Mexican Congress under enactments in 1822 and 1823. By this plan it was declared that "All the inhabitants of New Spain, without distinction, whether Europeans, Africans, or Indians, are citizens of this Monarchy, with a right to be employed in any post, according to their merit and virtues." Under these declarations the civilized Indians of Mexico have enjoyed political rights. And it is interesting to note in this connection that Jaurez, who came to the Presidency of the Mexican Republic, was a full-blooded Indian. So far as the wild tribes are concerned they do not seem to have had reservations set apart to them, but they remained in Mexico without molestation because, no doubt, they were too numerous to be expelled and yet too uncivilized to be incorporated in the body politic.
No account seems to have been taken of them in the settlement schemes of Mexico. By the first colonization law there it was provided "that the lands of the Government which are not the property of any individual, corporation, or town are the subject of the law and may be colonized." (Sec. 27, Law of 1824, Rockwell's Span. and Mex. Law, 451; United States v. Ballejos, 1 Black, 541.) In Chihuahua, where the Apaches, Ute, and Navajo Indians resided, colonization was provided for a large portion, if not all, of what now comprises New Mexico and Colorado. This was in 1825, and no reference was then made to Indian titles. (Reynold's Span. and Mex. Laws, 132.) So in the colonization scheme provided by Sonora, it appears that "there are colonizable in the State all the desert and vacant lands on its frontiers which belong to it and are not the property of an individual, corporation, or town." (Ibid. 296.)
The Supreme Court of the United States has taken judicial notice of the status of the civilized Indians in New Mexico. (United States v. Ritchie, 17 How. 156; United States v. Joseph, 94 U. S. 614.) But the status of the uncivilized tribes was not considered in those cases.

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The right to remove Indians from any portion of the ceded territory was recognized by the twelfth article of the treaty of Guadalupe Hidalgo. (9 Stat. L. 930.) By a treaty made between the United States and the Navajos those Indians came under the exclusive jurisdiction and protection of the United States, and the laws regulating trade and intercourse with the United States were extended over the Navajo country. A similar treaty with the Utahs was likewise proclaimed September 9, 1850. (9 Stat. L. 984.) By its fourth article the territory occupied by the Utahs was annexed to New Mexico and the trade and intercourse laws extended over them. Free passage through territory occupied by them was provided for, and there was a stipulation to the effect that the United States should at their earliest convenience designate, settle, and adjust the territorial boundaries of the tribe; but in the meantime, by article 7, the tribe was not permitted to depart from their "accustomed homes" unless specifically permitted, and the Utahs agreed to confine themselves strictly to such limits as might thereafter be assigned to them by the United States. There was neither recognition of title in the soil nor was there denial of any such claim, if any existed. Apparently the promise to fix boundaries was left open to be claimed as a right by the one party or to be fixed as a matter of grace by the other." * * * "The only rational view to take of the matter is that that country became Indian country only where the Indian had the exclusive right of occupancy. The defendant Indians did not have that right at the time of the commission of this depredation."

Justice Barney, in The Ute Indians v. United States (45 Court of Claims, 440-465-466), a case not appealed to the Supreme Court, said:

We are further directed, in addition to moneys paid under the agreement of 1880, to charge the plaintiff's with "any sum or sums paid by the United States to or for the benefit of said Indians, whether as a gratuity or otherwise, except such sums as have been paid for a specific purpose and an adequate consideration."
It is contended by the defendants that under this instruction we should charge the plaintiffs with all such sums as have been paid to them under the treaties of 1863 and 1868, on the ground that "no adequate consideration" was ever received by the defendants for moneys so expended. For this contention much reliance is placed upon the decision of this court in the case of Hayt v. United States (38 C. Cls. R. 455), wherein it was decided that the territory ceded by Mexico to the United States by the treaty of Guadaloupe Hidalgo was not "Indian Country," and it is claimed that all of the lands involved in the treaties of 1863 and 1868 were within that cession. While it may be true that the Indian title of the plaintiffs to any territory prior to the treaty of 1863 was not such a title as the defendants would recognize, yet the plaintiffs were located within this territory and had the usual claim of occupancy of other Indians. Their claim was considered of such importance that the defendants, during the year following the Guadaloupe Hidalgo treaty, entered into a treaty with them and secured from them a concession for the right of free passage through their territory. (9 Stat. L. 984.) By the treaty of 1863 (13 Stat. L. 673) the defendants considered these claims to territorial occupancy of sufficient importance to obtain from them a cession of all "claim, title, etc., to lands within the territory of the United States," excepting certain lands which were set apart to them as their hunting grounds. By the treaty of 1868 (15 Stat. L. 619) the reservation in question was set apart to the plaintiffs, and by the third article of the treaty the plaintiffs relinquished "all claims and rights in and to any portion of the United States or territories except" such reservation. Even if we may admit that they had no valid title to any lands, yet they claimed some title, and honestly claimed it, and the yielding of such a claim to a party who wishes to purchase it is a good consideration.
In the case of Sykes v. Chadwick (18 Wall. 141) the Supreme Court, in discussing the sufficiency of consideration, said:
"If any release is deemed requisite to confirm the title of lands with which one has been connected, though by a proper construction of the law he has no interest in them whatever, still such release will be a good consideration for a promise or for the payment of money."
Congress, from time to time, made appropriations of money to the plaintiffs which in terms were made in pursuance of the treaties of 1863 and 1868. (13 Stats. 560; 17 id. 457.) After such treaty stipulations with the plaintiffs and after such recognition of their validity for more than 40 years we do not think the defendants can successfully set up the claim that these payments were made without adequate consideration. Certainly no such claim would ever be made against any people other than Indians. We do not think, therefore, that the plaintiffs are properly chargeable with any payments made to them under and pursuant the treaties of 1863 and 1868.

In this connection consult also Pueblo Indian Land Hearings, before a subcommittee of the Senate Committee on Public Lands, Sixty-seventh Congress, fourth session, on S. 3865 and S. 4223, statement of Col. R. E. Twiteliell, pages 34 to 107.

For a general discussion of Spanish, French, and English policies, and the policies of the American Colonies and of the United States toward the question of Indian land tenure, consult Charles C. Royce, Indian Land Cessions in the United States, eighteenth Annual Report of the Bureau of American Ethnology, Part 2, pages 527 to 544.

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V.

LAWS AND TREATIES REGARDING LAND TENURE.

THE RIGHT OF OCCUPANCY AND POSSESSION OF THE INDIAN TRIBES TO THEIR LANDS WAS ALSO RECOGNIZED AND PROTECTED BY THE PROCLAMATION OF GEORGE III, RELATING TO THE GOVERNMENT OF THE TERRITORIES IN NORTH AMERICA ACQUIRED BY GREAT BRITIAN FROM FRANCE UNDER THE TREATY OF PARIS OF FEBRUARY 10, 1763; BY THE ORDINANCE FOR THE GOVERNMENT OF THE NORTHWEST TERRITORY, ENACTED BY THE CONTINENTAL CONGRESS IN 1787, AND REENACTED BY CONGRESS BY ACT APPROVED AUGUST 7, 1789 (1 STAT. L. 50-52) ; AND BY THE TREATY WITH FRANCE FOR THE LOUISIANA PURCHASE, AND BY THE TREATIES WITH MEXICO FOR THE ACQUISITION OF MEXICAN TERRITORY. OTHER TREATIES, WHEREBY FLORIDA WAS ACQUIRED BY THE UNITED STATES AND WHEREBY THE BOUNDARIES BETWEEN THE UNITED STATES AND CANADA WERE DEFINED, CARRY NO PROVISIONS RELATING TO INDIAN POSSESSORY RIGHTS TO THEIR LANDS, BUT THE NATURE OF SUCH RIGHTS IN THE LANDS ACQUIRED UNDER THESE TREATIES ARE HEREAFTER INDICATED.

The proclamation of George III of October 7, 1763, is given in the Annual Register, or a view of the History, Politics, and Literature for the year 1763, the sixth edition, London, printed for J. Dodsley, in Pall Mall, 1810, pages 208 to 213. (State Department Library, D2A7-1763.)

As the above-named book is not generally available, the entire proclamation, in so far as it relates to Indian policy, is given, without regard to whether or not it directly relates to land tenure of Indian tribes, the proclamation reads as follows:

BY THE KING, GEORGE, R.
A PROCLAMATION.
Whereas we have taken into our royal consideration the extensive and valuable acquisitions in America, secured to our crown by the late definitive treaty of peace concluded at Paris the 10th day of February last; and being desirous that all our loving subjects, as well of our kingdoms as of our colonies in America, may avail themselves, with all convenient speed, of the great benefits and advantages which must accrue therefrom to their commerce, manufactures, and navigation; we have thought fit, with the advice of our privy council, to issue this our royal proclamation, hereby to publish and declare to all our loving subjects, that we have, with the advice of our said privy council, granted our letters patent under our great seal of Great Britian, to erect, within the countries and islands ceded and confirmed to us by the said treaty, four distinct and separate governments, stiled and called by the names of Quebec, East Florida, West Florida, and Grenada, and limited and bounded as follows, viz. * * *.
And whereas it is just and reasonable, and essential to our interest, and the security of our colonies, that the several nations or tribes of Indians, with whom we are connected, and who live under our protection, should not be molested or disturbed in the possession of such parts of our dominions and territories as, not having been ceded to, or purchased by us, are reserved to them or any of them, as their hunting grounds; we do therefore, with the advice of our privy council, declare it to be our royal will and pleasure, that no governor, or commander in chief, in any of our colonies of Quebec, East Florida, or West Florida, do presume, upon any pretence whatever, to grant warrants of survey, or pass any patents for lands beyond the bounds of their respective governments, as described in their commissions; as also that, no governor or commander in chief of our other colonies or plantations in America, do presume for the present, and until our further pleasure be known, to grant warrant of survey, or pass patents for any lands beyond the heads or sources of any of the rivers which fall into the Atlantic Ocean from the west or northwest; or upon any lands whatever, which not having been ceded to, or purchased by us, as aforesaid, are reserved to the said Indians, or any of them.
And we do further declare it to be our royal will and pleasure, for the present as aforesaid, to reserve under our sovereignty, protection, and dominion, for the use of the said Indians, all the lands and territories not included within the limits of our said three new governments, or within the limits of the territory granted to the Hudson's Bay company; as also all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and northwest as aforesaid; and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our especial leave and licence for that purpose first obtained.

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And we do further strictly enjoin and require all persons whatever, who have either willfully or inadvertently seated themselves upon any lands, within the countries above described, or upon any other lands which not having been ceded to, or purchased by us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such settlements.
And whereas great frauds and abuses have been committed in the purchasing lands of the Indians, to the great prejudice of our interests, and to the great dissatisfaction of the said Indians; in order therefore to prevent such irregularities for the future, and to the end that the Indians may be convinced of our justice and determined resolution to remove all reasonable cause of discontent, we do, with the advice of our privy council, strictly enjoin and require, that no private person do presume to make any purchase from the said Indians of any lands reserved to the said Indians within those parts of our colonies where we have thought proper to allow settlement; but that if at any time any of the said Indians should be inclined to dispose of the said lands, the same shall be purchased only for us, in our name, at some public meeting or assembly of these said Indians, to be held for that purpose by the governor or commander in chief of our colony respectively within which they shall lie; and in case they shall lie within the limits of any proprietaries, conformable to such directions and instructions as we or they shall think proper to give for that purpose: and we do, by the advice of our privy council, declare and enjoin, that the trade with the said Indians shall be free and open to all our subjects whatever, provided that every person who may incline to trade with the said Indians, do take out a license for carrying on such a trade, from the governor or commander in chief of any of our colonies respectively, where such persons shall reside, and also give security to observe such regulations as we shall at any time think fit, by ourselves or commissaries, to be appointed for this purpose, to direct and appoint for the benefit of the said trade: and we do hereby authorize, enjoin, and require the governors and commanders in chief of all our colonies respectively, as well those under our immediate government, as those under the government and direction of proprietaries, to grant such licences without fee or reward, taking special care to insert therein a condition that such licence shall be void, and the security forfeited, in case the person to whom the same is granted, shall refuse or neglect to observe such regulations as we shall think proper to prescribe as aforesaid.
And we do further expressly enjoin and require all officers whatever, as well military as those employed in the management and direction of Indian affairs within the territories reserved, as aforesaid, for the use of the said Indians, to seize and apprehend all persons whatever, who standing charged with treasons, misprisions of treasons, murders, or other felonies or misdemeanours, shall fly from justice and take refuge in the said territory, and to send them under a proper guard to the colony where the crime was committed of which they shall stand accused, in order to take their trial for the same.
Given at our court at St. James's, the 7th day of October 1763, in the third year of our reign. God Save the King.

By treaty concluded at Paris, September 3, 1783 (8 Stat. 80), Great Britain recognized the independence of the United States. This treaty carries no stipulation specifically referring to the rights of Indians to their lands, but these rights were not lost to the Indians by failure to secure them in this treaty. (See headings II and III, supra. Also Cayuga Indians before American-British Claims Commission, 1927-28.)

The act of Congress of August 7, 1789 (1 Stat. 50-52), reenacts the act of the Continental Congress of July 13, 1787, entitled, "An ordinance for the government of the territory of the United States northwest of the Ohio."

Article III of the ordinance above referred to provides in part the following:

The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in their property, rights, and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.

By the treaty concluded at Paris, April 30, 1803 (8 Stat., 200-202), France ceded the Province of Louisiana to the United States. Article III of the treaty provides:

The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.

Article VI of the treaty provides:

The United States promise to execute such treaties and articles as may have been agreed between Spain and the tribes and nations of Indians, until, by mutual consent of the United States and the said tribes or nations, other suitable articles shall have been agreed upon. (The Louisiana Purchase, by Binger Herman, Government Printing Office, 1900.)

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By treaty concluded at London, October 20, 1818 (8 Stat., 248), the boundary between the British possessions and the United States east of the Rocky Mountains and west of the Lake of the Woods was declared to be the forty-ninth parallel of north latitude. The effect of the treaty was that the United States ceded to Great Britain that part of the valley of Milk River lying north of the forty-ninth parallel, which was a part of the Louisiana Purchase, and Great Britain ceded to the United States the valley of the Cheyenne River and that part of the valleys of the Mouse and Red Rivers which lay south of the forty-ninth parallel, which territory was not included in the territory acquired by the United States under the Louisiana Purchase. (Hist. Atlas, William R. Shepherd, Henry Holt & Co., 1911, 198, 199.)

This treaty carries no stipulation specifically referring to the rights of Indians to their lands, but these rights were not lost to the Indians by failure to secure them in this treaty. (See headings II and III, supra).

By treaties concluded between the United States and Spain at Washington, February 22, 1819 (8 Stat., 252-256-258), and at Madrid, October 29, 1820 (8 Stat., 264), Spain ceded to the United States all of her territories in Florida. The treaty of February 22, 1819, makes certain provisions relating to the security of the inhabitants of Florida as to their property and other rights, which are as follows:

ARTICLE 5. The inhabitants of the ceded territories shall be secured in the free exercise of their religion, without any restriction; and all those who may desire to remove to the Spanish dominions, shall be permitted to sell or export their effects, at any time whatever, without being subject in either case, to duties.
ARTICLE 6. The inhabitants of the territories which his Catholic Majesty cedes to the United States, by this treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities, of the citizens of the United States.
ARTICLE 8. All grants of land made before the 24th of January, 1818, by his Catholic Majesty, or by his lawful authorities, in the said territories ceded by his Majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic Majesty. But the owners in possession of such lands, who, by reason of the recent circumstances of the Spanish Nation, and the revolutions in Europe, have been prevented from fulfilling all the conditions of their grants, shall complete them within the terms limited in the same, respectively, from the date of this treaty; in default of which the said grants shall be null and void. All grants made since the said 24th of January, 1818, when the first proposal, on the part of his Catholic Majesty, for the cession of the Floridas, was made, are hereby declared, and agreed to be, null and void.

This treaty carries no stipulation referring to the rights of Indians to possess their lands, although the above articles might be considered to include Indians as being part of the inhabitants of Florida. (For further information see heading IV, supra.)

By treaty concluded between the United States and Great Britain at Washington, August 9, 1842 (8 Stat., 572), the boundary line between the States of Maine, New Hampshire, Vermont, and New York, where they abut on the British possessions, was determined. This treaty carries no stipulation referring to the rights of Indians to possess their lands, but such rights were not lost to the Indians as to lands acquired by the United States under this treaty, by failure to mention them in the treaty. (See heading II and III, supra.)

By treaty concluded between the United States and Great Britain at Washington, June 15, 1846 (9 Stat., 869), the boundary line between the United States and British possessions west of the Rocky Mountains was determined to be the forty-ninth parallel of north latitude, as far west as Puget Sound, and at that point to be the middle of the channel between Vancouver Island from the mainland and the middle channel of the straits of Juan de Fuca. This treaty carries no stipulation specifically referring to the possessory rights of the Indians in the territory under consideration, but such rights were not lost to the Indians in that territory by failure to mention them in the treaty. (See headings II and III, supra.)

By treaty concluded between the United States and Mexico at Guadalupe Hidalgo, February 2, 1848 (9 Stat., 922-929-930), Mexico ceded to the United States all territory possessed by it north of the Rio Grande, the southern boundary of New Mexico, the Gila River, and the southern boundary of California. Article VIII and

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Article IX of this treaty refer to the legal rights of the Indians in the territory thus ceded and are as follows:

ARTICLE VIII. Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican Republic, retaining the property which they possess in the said territories, or disposing thereof, and removing the proceeds wherever they please, without their being subjected, on this account, to any contribution, tax, or charge whatever.
Those who prefer to remain in the said territories may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States. But they shall be under no obligation to make their election within one year from the date of the exchange of ratifications of this treaty; and those who shall remain in the said territories after the expiration of that year, without having declared their intention to retain the character of Mexicans, shall be considered to have elected to become citizens of the United States.
In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guaranties equally ample as if the same belonged to citizens of the United States.
ARTICLE IX. Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, conformably with what is stipulated in the preceding article, shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution; and in the meantime shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.

(See heading IV, supra.)

"Mexicans," in the above-quoted Articles VIII and IX of the treaty, include Indians, and it was so understood under the laws of Mexico then in force. The plan of Iguala of February 24, 1821 (quoted in Pueblo Indian Land Hearings on S. 3865, etc., 67th Cong., 4th sess., at p. 47), provides:

That all the inhabitants of New Spain, without distinction, whether Europeans, Africans, or Indians, are citizens of this Monarchy, with the right to be employed in any post according to their merit and virtues and that the person and property of every citizen will be respected by the Government.

The above principle was reaffirmed, according to Colonel Twitchell, in the hearing cited, by the treaty of Cordoba, August 24, 1821; by the declaration of independence of September 28, 1821; and by decrees of the Mexican Congress dated February 24, 1822, and April 9, 1823.

By treaty concluded between the United States and Mexico at Washington on December 30, 1853 (10 Stat., 1031-1035), known as the Gadsden treaty, Mexico ceded to the United States all of the territory north of the present southern boundary line of New Mexico and Arizona which it then possessed, as far as the line of cession made by it under the treaty of 1848. Article V of this treaty provided, in regard to the rights of the Indians to their lands, as follows:

ARTICLE V. All the provisions of the eighth and ninth, sixteenth and seventeenth articles of the treaty of Guadulupe Hidalgo shall apply to the territory ceded by the Mexican Republic in the first article of the present treaty, and to all the rights of persons and property, both civil and ecclesiastical, within the same, as fully and as effectually as if the said articles were herein again recited and set forth.

(See also heading IV, supra.)

VI.

RÉSUMÉ

1. The American Indian had no conception of the private or exclusive ownership of land. The only right the Indian understood and claimed was the right of perpetual user, occupancy, and possession, by the tribe, as tenants in common.

2. Under the law of nations, as recognized by the United States, a change of sovereignty, occurring by reason of the acquisition of new territory by cession, makes no change as to private law or private rights in the new territory so acquired, but changes only the public law or political law in such territory.

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3. Pursuant to the above, the United States recognizes as a general principle the right of Indian tribes, as to land actually claimed and possessed by them, perpetually to use, occupy, and possess such lands as tenants in common, the fee remaining in the United States as successor of the European discoverers.

4. In regard to lands acquired from Spain and Mexico by the United States the right of the Indian tribes to possess and occupy the same is recognized where Spain or Mexico recognized such rights prior to the cession, or where the Indians held the land by virtue of grants from Spain or Mexico, or where the United States either accorded the Indians such rights or recognized that they had such rights after the cession.

5. The Indian right to occupancy and possession of his lands is further recognized by the acts of the British Government, by acts of the Continental Congress, and by the Congress of the United States in its general enactments in regard thereto and in certain of the treaties of cession made with foreign powers.

Rights acquired by particular tribes of Indians to land by virtue of treaty, act of Congress, or Executive order are not here considered. Such rights must be determined in each case by the circumstances of the case and by the terms of such treaty; act of Congress, or Executive order.


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