The relation which the Indians sustain to the government of the United States is peculiar in its nature. Their independence, their rights, their title to the soil which they occupy, are all imperfect in their kind. Each tribe possesses many of the attributes of independence and sovereignty. They have their own forms of government, appoint their own rulers, in their own way, make their own laws, have their own customs and religion, and, without control, declare war and make peace, and regulate all other of their civil, religious and social affairs. The disposal of their lands is always done by formal Treaties between the government of the United States, and the tribe, or tribes, of whom the lands are purchased. They have no voice, no representation in our government; none of the rights of freemen, and participate with us in none of the privileges and blessings of civilized society. In all these respects Indians are strictly independent of the government and people of the United States. Yet the jurisdiction of the whole country which they inhabit, according to the established law of nations, appertains to the government of the United States; and the right of disposing of the soil, attaches to the power that holds the jurisdiction. Indians, therefore, have no other property in the soil of their respective territories, than that of mere occupancy. This is a common, undivided, property in each tribe. When a tribe, by Treaty, sell their territory, they sell only what they possess, which is, the right to occupy their territory, from which they agree to remove. The complete title to their lands rests in the government of the United States. The Indians, of course, cannot sell to one another, more than what they possess, that is the occupancy of their lands. Nor can they sell anything more than occupancy to individual white people. Indian conveyances give no title to the soil. This title can come only from the power that holds the jurisdiction.
Besides, the territory necessary to give support to any given number of people, in the hunter state, as it is designated, is vastly greater than is required to yield subsistence to the same number of people in the agricultural state. Here, again, the Indian title to their respective territories, is imperfect in another respect. When the hunter state, from whatever cause, is relinquished and the agricultural state adopted, the Indians are entitled to no more of their territories, so changed, than is requisite to give them, from cultivating the earth, a support equal to that which they derived from their whole territory in the hunter state. The advantages of the agricultural, over the hunter state, are presumed to be a just equivalent to the Indians for the lands they are constrained to resign to the civilized state. Such appear to be the established laws and doctrines of our general and state governments, in respect to our relation to the Indian tribes in our country, to their independence, their rights, and title to their lands. A few of the authorities, which support the foregoing statement, are given in the Appendix.1
I have stated the foregoing, as the established opinions concerning Indian titles to their lands, and have referred to the authorities given in the Appendix. The opinion there stated, of a majority of the Supreme Court of the United States, however, is very guardedly expressed on this point. “The Indian title,” the Court say, “is certainly to be respected, until it be legitimately extinguished.” But what constitutes a “legitimate” extinguishment of an Indian title? On this point we have not the opinion of the Court, further than may be inferred from the following clause. The Indian Title to their lands is not such “as to be ABSOLUTELY repugnant to seisin in fee, on the part of the state.” We may, I conceive, fairly infer from this important decision of the first Court in our nation, made after a full discussion by some of the ablest members of the American bar, that they had some hesitancy to say the least, in admitting the correctness of the common opinion on the subject of the Indian title to their lands. If their title were such as to be “repugnant to seisin in fee by the state,” it would of course follow, that their title and ours, to our lands respectively, is of the same nature, i. e. complete. But this is not, say the Court “absolutely” the fact. There is a difference in these titles; but in what it consists is not stated. The phraseology of the Court, though indefinite and inexplicit, clearly implies, that in their judgment this difference is small. It is not “absolutely repugnant” – but it is nearly so. The difference is less than has been usually considered. This decision, is obviously at variance, in a degree very important, with the principles which have governed in making all the vast purchases of Indian lands, which have hitherto been made. It is a decision highly favorable to the interests of the Indians; and if regarded, (and the decision of our highest Court must be regarded as the law of the land) in future purchases of their lands, will give them advantages, such as they have never before enjoyed, and will effect much toward conciliating that confidence and good feeling, which are indispensable to the success of our efforts for their benefit.
See App. I. i. ↩