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, Huron Ottawa, Twichtwee, Shawanee, Chippewa, Cherokees, Delaware, Pottawatomie, 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.

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