The state and federal courts, as the former have recognized in several instances, should recognize the 64 “Indian common law title” of occupants of reservation lands, where such lands have been improved. They should assure such titles, as well as sales, devises, and descent, through courts of surrogate or other competent tribunals, wherever local Indian officials refuse just recognition of such titles or delay a just administration when conflicts arise.
All statutes which offer the Indian a premium for dishonest dealing should be repealed, and the Indian should be held to his contracts to the extent of his personal holdings.
All state laws which regulate marriage, punish adultery and kindred offenses should be available for the Indian complainant, and none of the Indian estates, once legally recognized as held in practical severalty, should hereafter be cambered by the claims of illegitimate offspring. The liquor laws should not only be maintained but enforced, with the deliberate purpose on the part of the American people to strengthen the Indian for his own sake and for the sake of the commonwealth into which he must, in due time, be fully adopted.
The Titles To Indian Lands
Independent of the pre-emption lien of the Ogden Land Company upon the lands of the Seneca Nation, and absolutely as respects the Onondaga, Tonawanda, and Tuscarora Senecas, the Indians already hold their lands substantially in severalty. The theory advanced by many that these lands are so absolutely held in common that the people have no stimulus to improve them is founded upon an erroneous idea of law and fact. The same principle that underlies the English, and therefore the American, common law obtains hero. It has been settled among the Six Nations beyond question that occupation, building upon, and improvement of land by consent of the authorities representing the whole people confer a title, practically ha the simple, excepting that it IS inalienable to a foreigner, but it may be conveyed or devised within the nation, and that it is inheritable by the immediate and natural heirs in absence of a will.
It is equally true that when a party without land applies to the authorities for the formal allotment of land for improvement and cultivation permission to so select and improve land is almost always given. The national title has itself been a guaranty to each individual occupant that this perfect title in the nation is his to control as if he held a deed therefor, and that his use and disposal of said land can not be disturbed. There is public domain enough on each reservation to give every family seeking it all the land needed, and the disinclination to work, to improve land, and secure support there from is the only barrier to rightful possession and use. This tenure is so fully recognized that no body of chiefs or ruling representatives of the Six Nations dare assert any right to disturb that tenure or prevent its sale or devise by the tenant, and every case, so far as known, reported as a violation of this right by the peacemaker courts or by other authority, upon the settlement of an estate or dispute as to adjoining boundaries or conflicting titles, has been adjusted upon evidence.
An act of Congress or an act of the general assembly of the state of New York which’ affirmed such titles would simply modernize in form that established, unwritten law of Indian custom which has the same sanction as the original English title in fee simple, while neither an act of Congress nor an act of the general assembly of the state of New York can reach and disturb the Indian title in severalty as thus established and enjoyed.
On each of the reservations white men work the lands for a cash rental or upon shares, rarely occupying the soil for homes. Nearly 100 white persons occupy Indian lands in the vicinity of Red House, on the Allegany Reservation. These were counted in the general census.
On April 14, 1890, the following official announcement was made by the Seneca Nation, but its arbitrary anal illegal penalties barred any practical enforcement:
Laws Of The Seneca Nation
[Passed April 14, 1890]
Pursuant to the resolution of the Seneca Nation in council dated this aforesaid, your committee respectfully report the following, namely:
Whereas the laws of the United States forbid the occupancy of any other persons than Indians upon any Indian lands; therefore be it-
Resolved, That any Indian or Indians violating the above mentioned law, outside of the village, boundaries, shall be subject to a punishment by confiscation of the land so leased by the council; and, further, that the said Indian or Indians so violating shall be deprived .of his annuity for the term of 10 years; and, furthermore, that he shall be deprived of the privileges of voting at any elections or holding any office in the gift of the people of the Seneca Nation.
The “village boundaries” referred to indicate the corporations of Carrollton, Salamanca, West Salamanca, Vandalia, Great Valley, and Red House, which were surveyed and located by commissioners under act of Congress approved February 19, 1875. This was a ratification of certain antecedent leases which the supreme court of New York had held to be illegal, and these leases, which will mature in 1892, except those to railroads, were provisionally extended by act passed by the Fifty-first Congress, upon mutual agreement of the parties, “for a period not exceeding 99 years from their expiration, May, 1892″. The Oil Spring reservation, which is already on a long lease, is not occupied by Indians.
The income from the corporation lands, which is paid directly to the treasurer of the Seneca Nation, supports the peacemaker court and maintains such other executive functions as are within the purview of the national council. The present amount is not far from $9,000 per annum, and the ground rent in many cases is only nominal, that of the principal hotel being but $30 per annum, and others, as a rule, proportionately small.
The Onondaga Nation also receives into its treasury rental from stone quarries.
The demand made by white citizens, as citizens or as legislators, state or national, is based upon the idea, before intimated, that in case the Indians of the Six Nations should abandon their tribal or national systems all lands owned under an original general title, theoretically in Common, would call for proceedings in partition, as in the case of an estate where no provision had been made by a decedent for a distribution among joint heirs.
Independent of previously matured rights through purchase, gift, or settlement, this claim has no legal basis, unless it first be made to appear that existing individual holdings are at the expense of rightful copartners in interest, who, without their choice and adversely to their rights, are deprived of their distributive shares in a common inheritance.
The immemorial recognition of the right of any family to enter upon the public domain and occupy land equally open to all, and only improved by the industrious, disqualifies the assenting, passive tenant from claiming any benefits from the industry of the diligent. The indolent Indian alone is responsible fir the neglect to avail himself of that winch is free to all.
There is not the faintest similarity between Indian occupation of any western reservation and the titles of the Six Nations to their lands.
All lands were held in common by the various members of the Iroquois League. As at present, the same choice inured to each family to select, cultivate, buy, sell, and transmit to posterity whatever the members thereof elected. The result of that choice or want of choice, of industry or idleness, of economy or waste, of good judgment or thriftlessness is visible in farms or weedy patches, in houses or cabins, in education or ignorance, in decency or filth. The natural and universal law in all generations of men is plainly evident that the percentage of the relative grades of acquisition or waste of large or medium accumulations, of bare support or of scant support., is almost identical with the average of communities wholly white, and the percentage of absolute suffering from want much less among these Indians than in very many settlements of white people.
The following particulars are from the report of the United States Indian agent:
The sanitary condition of the Indians during the past year has been very good. On account of the mildness of the winter they were not compelled to keep housed up, and the most of the time were able to be around, exercising; and this, in my opinion, does away with a large amount of sickness. If it were one continual summer, the Indians of western New York would be able to live better, but our winters are too much for them. Scanty clothing, scanty food, and unclean living make the lot of our Indians a hard one during the cold weather.
The crops of the Indians upon the reservations in western New York are, I think, fully up to the average. In consequence of the agitation among the Indians in regard to the bill in the legislature for the division of their lands in severalty, there have been few improvements made during the past year. This unsettled condition of these Indians is a great hindrance to their advancement toward civilization. They are expecting at any time some new steps will bo taken to change their condition, and they are consequently loath to make extended improvements either in building or clearing up their laud, as they are afraid the benefit will be reaped either by the whites or other Indians.
There has been very much trouble upon the Allegany reservation during the past year (prior to June 30, 1890) on account of the sale of whisky to the Indians, At Red House drunken rows have been frequent, and fights between white men and Indians in several instances have resulted in serious injuries to the Indians. All efforts to secure conviction of the guilty parties have proved unavailing on account of the refusal of the Indians to tell where they got their whisky. Early in the spring the commissioner of internal revenue was notified by the authorities at Washington not to issue stamps to persons who were to sell liquors on the Indian reservations, and stamps were refused to the dealers residing in the villages upon the Allegany reservation. Pending an appeal by the dealers to the authorities at Washington, some were given authority to sell until the matter was decided. After considerable delay the opinion of the Attorney General upon the question was received, deciding that the government had no authority to issue licenses to sell liquors upon the reservations, and consequently the sale of liquors in the villages upon the reser6tion has been stopped altogether. This action on the part of the officials at Washington has caused great consternation among the local liquor dealers.